Anderson v. State

• Decision Date: 16 November 1999
• Docket Number: No. F-97-1157.,F-97-1157.
• Citation: 1999 OK CR 44,992 P.2d 409
• Parties: Glenn Douglas ANDERSON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

992 P.2d 409

1999 OK CR 44

Glenn Douglas ANDERSON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-97-1157.

Court of Criminal Appeals of Oklahoma.

November 16, 1999.

As Corrected December 21, 1999.

Jim Pearson, Oklahoma City, Attorney for appellant at trial.

Robert E. Gene Christian, Bret T. Burns, Chickasha, Attorneys for the State at trial.

Katherine Jane Clark, Matthew D. Haire, Norman, Attorneys for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, Attorneys for Appellee on appeal.

OPINION

STRUBHAR, P.J.:

¶ 1 Appellant, Glenn Douglas Anderson, was convicted of First Degree Murder (Counts I, II and III), Shooting With Intent to Kill (Count IV), First Degree Arson (Count V), and Kidnapping (Counts VI and VII), in the District Court of Grady County, Case No. CF-96-240, after a jury trial held before the Honorable James R. Winchester. As to the three counts of First Degree Murder, the State filed a Bill of Particulars alleging four aggravating circumstances: (1) that Appellant knowingly created a great risk of death to more than one person;¹ (2) that the murders were especially heinous, atrocious or cruel;² (3) that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution;³ and, (4) the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society.⁴ With regard to Count I, the jury found two aggravating circumstances to exist, that the murder of Jim Poteet was especially heinous, atrocious or cruel and that there was a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society. Regarding Counts II and III, the jury found three aggravating circumstances to exist, that the murders of Keith Smith and Terry Shepard were especially heinous, atrocious or cruel, that there was a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society, and that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution. The jury assessed punishment at death on each of the three counts of first Degree Murder. The jury also assessed punishment at life imprisonment for Shooting With Intent to Kill, thirty-five years imprisonment for First Degree Arson, and ten years imprisonment for each count of Kidnapping. The trial court sentenced Appellant accordingly, ordering the sentences be served consecutively. From this Judgment and Sentence Appellant has perfected his appeal.⁵

FACTS

¶ 2 Between 3:00 and 4:00 a.m. on September 28, 1996, Appellant burst into the trailer home of Marvin Mathesen brandishing a firearm. Appellant told Mathesen that they needed to talk. Shortly thereafter, Richard Thornburg and Roger Embrey also entered the trailer. Thornburg had been shot prior to this night and the three wanted to question Mathesen about the shooting. All three men were armed and they told Mathesen they were going to shoot him if he lied to them. The three men also suspected Jim Poteet in the shooting. They decided to question Mathesen and Poteet together so they could figure out whether Mathesen or Poteet had shot Appellant.

¶ 3 The three armed men forced Mathesen out of his trailer at gun point and drove him to Poteet's residence. Once there, Thornburg and Embrey went into the house and Appellant and Mathesen stayed in the car. When Appellant and Mathesen heard gun shots come from the house they went to see what had happened. They saw Terry Shepard sitting in a chair by the bathroom door and Poteet sitting on the bed in the back bedroom. Thornburg was holding Poteet at gun point. Poteet had been shot in the foot and was bleeding between the eyes.

¶ 4 Appellant suggested that Thornburg take Mathesen and go get any people present from Poteet's rental house which was located about seventy yards from Poteet's residence. While they were walking over to the rental house, Keith Smith walked up the driveway. Thornburg forced Smith to knock on the door of the rental house and when he did, Donnie Scott opened the door. Thornburg then forced Scott, Smith and Mathesen to walk back to Poteet's residence.

¶ 5 Once back at Poteet's house, Thornburg went back into the bedroom with Poteet. Soon, Embrey took Mathesen to the back bedroom. In the bedroom, Thornburg gave Mathesen a gun and told him to shoot Poteet while Appellant, Thornburg and Embrey all pointed their guns at Mathesen. A gunshot was fired from behind Mathesen and Poteet was shot in the side. The only person standing behind Mathesen at this time was Thornburg. Thornburg, Appellant and Embrey then told Mathesen to shoot another person or they would shoot Mathesen. Mathesen shot at Scott but the gun did not fire. Thornburg made Mathesen fire again while Appellant and Embrey pointed their guns at him. This time Mathesen shot Scott in the chest. Embrey took Mathesen outside to the car. While they were at the car, Mathesen heard more shots come from the house. The house was burned and Appellant, Thornburg, Embrey and Mathesen left the area in Thornburg's car. They stopped to hide the guns and let Mathesen out of the car.

¶ 6 Shortly after 5:00 a.m. Loyd Keagans and his son, who were driving by, noticed the burning house. As they drove up to the house, they saw an injured man outside. This man was Donnie Scott, who had been shot in the chest. The Keagans took Scott to a convenience store and called the police. Scott survived the shooting but the bodies of Jim Poteet, Keith Smith and Terry Shepard were found in the burned house. Each of them had been shot and had either died from gunshot wounds or a combination of gunshot wounds and fire related injuries.

¶ 7 When Scott was able, he gave a statement to the police telling what had happened. Mathesen also told the authorities what had happened. Appellant, Embrey and Thornburg were subsequently arrested.

VOIR DIRE ISSUES

¶ 8 During voir dire, defense counsel sought to ask three prospective jurors whether they believed that different types of homicides were deserving of different types of punishments. The prosecutor objected and the objection was sustained. Appellant argues in his ninth proposition that the trial court erred in restricting his voir dire. Appellant relies on Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), to support his position that it is improper to restrict inquiry into whether the prospective jurors would automatically impose the death penalty and fail to consider the other punishment options. This Court has long held that "the extent of voir dire is within the discretion of the trial court and will not be disturbed absent abuse of discretion." Howell v. State, 1998 OK CR 53, ¶ 6, 967 P.2d 1221, 1224 (Okl.Cr.1998), cert. denied, ___ U.S. ___, 120 S.Ct. 93, ___ L.Ed.2d ___ (1999).

¶ 9 The record reflects that defense counsel used peremptory strikes to remove from the panel two of the jurors at issue. The other juror at issue was questioned by the trial court and stated that she could consider all of the possible punishments. We do not find that the trial court abused its discretion in restricting the voir dire as the prospective jurors were asked sufficient questions from which defense counsel could make informed decisions regarding the exercise of peremptory challenges and ascertain whether or not the prospective jurors could consider all of the punishment options and decide the case based upon the evidence. This proposition does not warrant relief.

FIRST STAGE ISSUES

¶ 10 At trial, the State introduced into evidence numerous letters Appellant had written to his wife. These letters contained passages from which it could be inferred that Appellant was soliciting the murder of Marvin Mathesen.⁶ Through these letters, Appellant reiterated to his wife the alibi defense to be presented at trial and he asked her to keep his alibi witness away from the police.⁷ The State also introduced the testimony of Eric Huber that Appellant had coerced him into lying to help create an alibi.⁸ Appellant argues in his first proposition that the letters and Huber's testimony contained other crimes evidence and the trial court erred in failing to give his requested limiting instruction on other crimes evidence. The State argues that this evidence is not evidence of other crimes but, rather, constitutes admissions by conduct.

¶ 11 The first issue for consideration is whether the aforementioned evidence is properly characterized as other crimes evidence, admissions by conduct, or both. This Court has treated such evidence both ways. In several cases, this Court has held that actions such as attempting to improperly influence or cause the absence of a material witness at trial are admissions by conduct which are admissible to infer a consciousness of guilt. See Gideon v. State, 1986 OK CR 112, ¶ 10, 721 P.2d 1336, 1338

. See also Camron v. State, 1992 OK CR 17, ¶ 22, 829 P.2d 47, 53. "Oklahoma has long held that a defendant's attempt to influence witnesses not to testify or to testify falsely is relevant and may be admitted as an admission by conduct and considered on the issue of guilt." Douglas v. State, 1997 OK CR 79, ¶ 50, 951 P.2d 651, 668,

cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998). See also Wills v. State, 1981 OK CR 140, ¶ 10, 636 P.2d 372, 376 (This Court adopted the rule that "an effort by an accused to directly or indirectly suppress or destroy evidence is relevant as a circumstance tending to show guilt."). However, even under this characterization we have required a limiting instruction be given and in Camron, we found the following instruction to be appropriate:

You are instructed that under certain circumstances the conduct of the accused after a crime may be considered against him as evidence of consciousness of guilt.

...