Alverson v. State, F-97-1018.

• Citation: 1999 OK CR 21,983 P.2d 498
• Decision Date: 06 May 1999
• Docket Number: No. F-97-1018.,F-97-1018.
• Parties: Billy Don ALVERSON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

983 P.2d 498

1999 OK CR 21

Billy Don ALVERSON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-97-1018.

Court of Criminal Appeals of Oklahoma.

May 6, 1999.

Rehearing Denied June 8, 1999.

Jim Fransien, Tulsa, for defendant at trial.

William Lafortune, District Attorney, Brett Swab, Assistant District Attorney, Tulsa, for the State at trial.

Stuart Southerland, Tulsa, for appellant on appeal.

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

OPINION

CHAPEL, Judge:

¶ 1 Appellant, Billy Don Alverson, was charged conjointly with three codefendants¹ with the crimes of first degree malice murder and, in the alternative, first degree felony murder (Count I) in violation of 21 O.S.1991, § 701.7(A) & (B) and robbery with a dangerous weapon (Count II) in violation of 21 O.S.1991, § 801 in the District Court of Tulsa County, 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 Alverson guilty of first degree murder and robbery with a dangerous weapon. After the punishment stage, the jury found the existence of two aggravating circumstances: (1) that the murder was especially heinous, atrocious or cruel; and (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. 21 O.S.1991, § 701.12(4) & (5).

I. FACTS

¶ 2 Alverson's co-defendant, Michael Wilson, worked at the QuikTrip convenience store located at 215 N. Garnett Road in Tulsa, Oklahoma. Wilson, Alverson, and two of their friends, Richard Harjo and Darwin Brown, went to the QuikTrip during the early morning hours of February 26, 1995. They chatted with Richard Yost, the night clerk, until the most opportune time arose for them to accost him and force him into the back cooler. They handcuffed him and tied his legs with duct tape. Alverson and Harjo went outside and returned with Harjo carrying a baseball bat.

¶ 3 Yost was found beaten to death in a pool of blood, beer and milk. Part of a broken set of handcuffs was found near his right hip. The medical examiner found a pin from these handcuffs embedded in Yost's skull during the autopsy. Two safes containing over $30,000.00 were stolen, as well as all the money from the cash register and the store's surveillance videotape. All four defendants were arrested later that same day wearing new tennis shoes and carrying wads of cash. The stolen drop safe and the store surveillance videotape, as well as other damaging evidence, was found in a search of Alverson's home. The baseball bat, the victim's bloody QuickTrip jacket, the other cuff from the set of broken handcuffs, and Wilson's Nike jacket which matched the one he wore on the surveillance tape were taken from Wilson's home. For a more detailed rendition of the facts, see Wilson v. State, 1998 OK CR 73, 983 P.2d 448 and Brown v. State, 1998 OK CR 77, 983 P.2d 474.

¶ 4 Alverson raises seventeen (17) propositions of error in his appeal.

II. DUAL JURY ISSUES

¶ 5 Alverson and co-defendant Harjo were tried conjointly, but with separate juries deciding their fate. Alverson complains in his sixth proposition of error that this dual jury procedure is not authorized by law, and that it deprived him of a fair trial. We disagree.

¶ 6 This Court has approved the use of dual juries in codefendant cases.² Additionally, we previously ruled in an "Extraordinary Writ" action initiated by Alverson and his codefendants that the use of dual juries in this case was discretionary with the trial judge since the procedure is not prohibited by Oklahoma law.³ Accordingly, collateral estoppel prevents Alverson from arguing the dual jury procedure in this case was contrary to Oklahoma law.⁴ However, we will address Alverson's claims regarding the procedure's effect on his rights.

¶ 7 Alverson bears the burden of showing actual prejudice before relief will be warranted.⁵ Alverson first claims the procedure had a chilling effect on cross-examination because the attorneys for the respective defendants had to be careful not to ask questions that were prejudicial to one co-defendant without first having the other co-defendant's jury removed. He claims when this occurred, his jury was left to improperly speculate that evidence against him was about to be presented. Alverson does not cite to any instances showing actual prejudice, but rather hypothesizes that his jury was prejudiced in this way. We are not persuaded.

¶ 8 The trial judge painstakingly instructed Alverson's jury that there would be occasions where evidence would be presented to just one jury and not the other, but they were to decide the case only on the evidence presented to them regarding Alverson. The Court's instructions were designed to alleviate any possible confusion or speculation on the part of the two juries. The record is void of any indication that the juries did not follow the trial court's instructions.

¶ 9 Moreover, Alverson does not cite to any specific instances where the dual jury procedure "chilled" defense counsel's cross-examination of witnesses. There is no indication that his attorney's cross-examination of any witnesses would have been different had the dual jury procedure not been used. Again, Alverson merely hypothesizes in general terms that dual juries tend to chill cross-examination. This is insufficient to show actual prejudice and will not merit relief.

¶ 10 Alverson also claims that the dual jury procedure created a conflict of interest situation because his attorney was ordered not to do anything to prejudice co-defendant Harjo. He asserts this placed his attorney in a position where he had to simultaneously protect the interests of two parties. However, this is not the case. Alverson's attorney was merely instructed not to do anything to prejudice co-defendant Harjo in the presence of Harjo's jury. All Alverson's lawyer had to do was ask the court to remove Harjo's jury if he wanted to proceed along lines which were damaging to Harjo. This in no way made him an advocate or a co-counsel for Harjo, and Alverson's reliance on Holloway v. Arkansas⁶ is entirely misplaced.

¶ 11 Finally, Alverson complains that he was prejudiced by co-defendant Harjo's questioning of State's witness Mandy Rumsey. Rumsey had testified that she did not see blood on Harjo, whom she knew from school, the night of the murder. She also testified that she had not paid much attention to Alverson because she did not know him. Harjo's counsel asked Rumsey what color clothing Alverson was wearing that night, and she answered that he was wearing a dark blue jacket. Harjo's counsel then asked her if that was one reason she couldn't tell if he did or didn't have blood on his clothing — because of the dark color.

¶ 12 Alverson's attorney did not object to this question in a timely manner, waiving all but plain error. We disagree that the question put Alverson in a position of having to defend against two prosecutors. It was a question asked solely for clarification and did not elicit any information that Alverson's jury did not already have before it. Accordingly, it did not rise to the level of plain error. Having found none of the arguments in this proposition to be of merit, this proposition is denied.

III. FIRST STAGE ISSUES

¶ 13 In his first proposition of error, Alverson contends he was under illegal arrest at the time he was removed from Wilson's vehicle, which he was driving without a license, and handcuffed. He claims his subsequent confession was tainted by this illegal arrest and must be suppressed.

¶ 14 Contrary to Alverson's claim, he was not under arrest, but rather under investigative detention when officers removed him from the car and handcuffed him.⁷ He was being detained not only so officers could investigate his possible involvement in Yost's murder, but also because they had just caught him driving without a license.⁸ Approximately ten minutes into his detention, the officers learned that Alverson had outstanding misdemeanor arrest warrants.⁹ He had not been detained for an unreasonable amount of time before these facts, which gave officers every right to arrest him, came to light.¹⁰ Accordingly, Alverson's subsequent arrest and transportation to the detective division of the Tulsa Police Department was legal, and the confession which followed was not tainted by any illegality in his arrest. This proposition must be denied.

¶ 15 In his third proposition of error, Alverson complains that Detective Makinson improperly provided the jury with an irrelevant and prejudicial "lengthy narrative" regarding what was depicted on the store surveillance videotape. The record is clear that Detective Makinson knew what all four defendants looked like and had viewed the entire videotape before he testified. For the jury's benefit, Makinson identified all four defendants on the tape as it was being played. He discussed the shift change that occurred, and he also testified regarding what could be heard on the tape as the beating took place.

¶ 16 The detective's identifications of the defendants, discussion of what was happening during the shift change, and testimony concerning the audible sounds on the tape were all helpful to the jury. They were based on Makinson's observations of the defendants prior to watching the videotape and his knowledge of the events that had transpired based on his investigation of the crime. Accordingly, his explanatory testimony was properly admitted as lay witness opinion testimony.¹¹

¶ 17 Alverson attempts to distinguish this case from that of United States v. Jones,¹² which held similar explanatory testimony regarding an audio tape admissible. Jones upheld the testimony of a witness who heard the statements on an unintelligible tape as they were being recorded; his testimony rendered a difficult to...