Bernay v. State

• Decision Date: 12 October 1999
• Docket Number: No. F-97-461.,F-97-461.
• Citation: 1999 OK CR 37,989 P.2d 998
• Parties: John Camp BERNAY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

989 P.2d 998

1999 OK CR 37

John Camp BERNAY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-97-461.

Court of Criminal Appeals of Oklahoma.

October 12, 1999.

As Corrected on Denial of Rehearing December 7, 1999.

Bert A. Richard, Jr., Ben Brown, Assistant Public Defenders, Oklahoma City, Oklahoma, for defendant at trial.

Lou Keel, Sandra Howell-Elliot, Assistant District Attorneys, Oklahoma City, Oklahoma, for the State at trial.

Wendell B. Sutton, Assistant Public Defender, Oklahoma City, Oklahoma, for appellant on appeal.

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

OPINION

JOHNSON, Judge.

¶ 1 John Camp Bernay, hereinafter referred to as Appellant, was tried by jury in Oklahoma County District Court, Case No. CF-95-1075, before the Honorable Charles L. Owens, District Judge, for First Degree Malice Murder, in violation of 21 O.S.1991, § 701.7(A) (Count I), Shooting With Intent to Kill, in violation of 12 O.S.Supp.1992, § 652 (Counts II and III), Pointing a Firearm, in violation of O.S.Supp.1995, § 1289.16 (Count IV), and Felonious Possession of a Firearm, in violation of 12 O.S.Supp.1994, § 1283 (Count V). The trial judge sustained a demurrer to Count IV. Count V was dismissed at the State's request after the jury's first stage verdict. The jury rendered verdicts of guilty on Count I and not guilty on Counts II and III. The jury found the following aggravating circumstances: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; (2) the defendant knowingly created a great risk of death to more than one person; (3) the murder was committed by a person while serving a sentence of imprisonment on conviction of a felony; and (4) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.¹ The jury recommended a sentence of death which the trial court imposed. From this Judgment and Sentence, Appellant has perfected his appeal to this Court.

FACTS

¶ 2 On the evening of February 8, 1995, Appellant and his girlfriend, Lucinda Wolfchief, were in Appellant's home watching television. Lucinda was twenty-eight years old at the time of the trial. She had been sniffing paint for approximately six (6) years, and the Appellant gave the young lady paint thinner and spray paint to sniff on that evening. Appellant was sixty-three years old at the time of the crime.

¶ 3 The decedent, Pamela Wolfchief, was Lucinda's mother. Pamela and her friends, Charlene Loneman, Robert Reynolds, Sr., and Robert Reynolds, Jr. were at Pamela's home, and they were all drinking. The four drove to Appellant's house to bring Lucinda back home.

¶ 4 Pamela went into the home. There is conflict between her testimony and others testimony as to whether this was a lawful entry or not. Appellant contends that it was an unlawful entry.

¶ 5 While there was some testimony that Pamela forced her way into the home, Appellant testified to the contrary. An argument ensued between the Appellant and the victim. The parties in the van heard the argument between the deceased and Appellant and approached the house at different times.

¶ 6 First, Robert Reynolds, Sr. approached Appellant's house, then a few minutes later, Robert Reynolds, Jr. and Charlene Loneman approached. There was testimony Appellant advised Pamela that Lucinda could not leave and began hitting the decedent. When Pamela tried to get up, Appellant would hit her again.

¶ 7 The occupants of the van testified that they heard an argument between the Appellant and the victim, and Ms. Loneman heard the Appellant tell the victim that he would kill her. The Appellant knocked the victim down and shot her in what appears to be a gangland-type shooting, that is, a shot to the back of the head.

¶ 8 Both Reynolds, Sr. and Reynolds, Jr. were shot by Appellant. After all of these incidents, the police were called. When the police arrived, Appellant was placed into custody. Appellant claimed the victim had broken into the house along with others, and they attacked him. Then he shot them.

ISSUES RELATING TO JURY SELECTION

¶ 9 In his second proposition of error, Appellant contends the trial court's restriction on defense counsel's voir dire examination resulted in the removal for cause of six prospective jurors before it was adequately established that such prospective jurors could not follow the law and consider the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Appellant complains that he was prohibited from rehabilitating those prospective jurors by questioning each of them about specific or hypothetical factual patterns under which the prospective juror might consider the death penalty appropriate.

¶ 10 The decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion whose decision will not be disturbed unless an abuse of discretion is shown. Douglas v. State, 1997 OKCR 79, ¶ 7, 951 P.2d 651, 659. When this Court reviews the voir dire examination of potential jurors who are unclear or equivocal about their ability to consider the death penalty, we traditionally defer to the impressions of the trial court who can better assess whether a potential juror would be unable to fulfill his or her oath. Id. However, removal for cause of even one venire member who has conscientious scruples against the death penalty but is nevertheless able to set aside those scruples and consider the penalty of death and is therefore eligible to serve on the jury is error of constitutional magnitude not subject to harmless error analysis. Id.

¶ 11 During voir dire, the trial court asked prospective jurors substantially the same question, "[c]ould you give meaningful consideration and agree to a verdict fixing his punishment at death by lethal injection if you felt that was justified by the evidence?" All of the prospective jurors of whom Appellant complains stated unequivocally that they could not assess the death penalty under any circumstances. By stating they could not consider the death penalty under any circumstances, the prospective jurors advised the trial court they could not put aside their beliefs and follow the law and the court's instructions. Because the proper inquiry was made by the trial court to determine whether prospective jurors could consider the death penalty, we find the trial court did not abuse its discretion when it did not inquire further after receiving unequivocal answers. See Scott v. State, 1995 OK CR 14, ¶ 11, 891 P.2d 1283, 1290, cert. denied, 516 U.S. 1077, 116 S.Ct. 784, 133 L.Ed.2d 735 (1996).

ISSUES RELATING TO GUILT/INNOCENCE

¶ 12 Appellant presents two sub-propositions in his first proposition of error. In his first sub-proposition, Appellant claims the preliminary hearing testimony of Reynolds, Jr. was inadmissible because the State failed to prove Reynolds, Jr. was unavailable despite good-faith and due diligent efforts to secure his presence at trial.

¶ 13 Approximately one month before trial, Investigator Ron Chambers received the assignment to locate both Reynolds, Sr. and Reynolds, Jr. and went to Reynolds Jr.'s last known address. He discovered Reynolds, Jr. had moved approximately two or three months earlier. A neighbor informed Chambers Reynolds, Jr. usually hung out at the REST homeless shelter. The investigator checked for utilities, employment, and telephone listings. A driver's license check showed an address on North Ellison. However, that address was a vacant lot. The driver's license check on Reynolds, Sr. revealed the address of an apartment complex. However, the manager at the complex related the Reynolds had been evicted approximately six months earlier.

¶ 14 In early February, Chambers visited the REST homeless shelter. He left word with a guard who knew the Reynolds to contact the District Attorney's Office if he heard of or from them. Chambers testified he would either go by or call the REST homeless shelter almost daily. Reynolds, Jr.'s sister informed Chambers she had not spoken to either man in over a year. Reynolds, Jr.'s mother also advised Chambers that she had seen Reynolds, Jr. approximately one and one-half months earlier when he discussed going to California. Chambers made many other contacts and stated he exhausted all of the investigative techniques he acquired over his thirty-year career to locate Reynolds, Jr. After argument of counsel, the trial court found the State had conducted a reasonable search to locate Reynolds, Jr., and that Reynolds, Jr. was unavailable to testify at trial.

¶ 15 On appellate review, this Court looks to all relevant facts to determine whether such facts establish good faith and due diligence on the part of the State to secure the attendance of a witness. Cleary v. State, 1997 OK CR 35, ¶ 18, 942 P.2d 736, 744. Here, based on the foregoing, we find the trial court properly found these facts establish good faith and due diligence. Id.

¶ 16 In Appellant's second prong of this proposition, he contends the preliminary hearing testimony of Reynolds, Jr. failed to meet the standards of reliability necessary to permit its use as required by his constitutional right to confrontation. "Previous testimony may be admitted at trial if two threshold requirements are satisfied: the witness must be unavailable despite good faith and due diligence of the party calling the witness, and the transcribed testimony must bear sufficient indicia of reliability to allow the trier of fact a satisfactory basis for evaluating its truth." Appellant submits Reynolds, Jr.'s testimony lacks a sufficient indicia of reliability because Appellant did not have an adequate opportunity to cross-examine or otherwise impeach him at preliminary hearing. Since Reynolds,...