Boutwell v. State

• Decision Date: 08 February 1983
• Citation: 1983 OK CR 17,659 P.2d 322
• Parties: John Kenneth BOUTWELL, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 322

659 P.2d 322

John Kenneth BOUTWELL, Appellant, v. The STATE of Oklahoma, Appellee.

Court of Criminal Appeals of Oklahoma.

Feb. 8, 1983.

An Appeal from the District Court of Oklahoma County; Jack R. Parr, District Judge.

John Kenneth Boutwell, appellant, was convicted of First Degree Murder in the District Court of Oklahoma County, Case No. CRF-78-521, sentenced to death, and appeals. The appellant's sentence is MODIFIED to life imprisonment, and as modified, judgment is AFFIRMED.

T. Hurley Jordan, Public Defender, Robert A. Ravitz, Asst. Public Defender, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., State of Oklahoma, C. Elaine Alexander, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

John Kenneth Boutwell was tried and convicted by jury in Oklahoma County District Court for First Degree Murder. The jury, which recommended imposition of the death sentence, found that three statutory aggravating circumstances were present: (1) that the defendant committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration; (2) that the murder was especially heinous, atrocious, or cruel; and (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.

The appellant murdered a store clerk during the robbery of Little Dee's Grocery Market. Before the robbery, the appellant and his three friends decided that the clerk, David Devol, had to be killed so that they would not be later identified. The appellant initially fired four shots into the victim, then before making away, fired a fifth to insure Devol's death.

I

The appellant asserts that his confession was the fruit of an illegal arrest. We find this argument to be without merit. Title 22 O.S.1981, § 196(3), provides an officer may make an arrest without a warrant, "[w]hen a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it."

Boutwell was arrested while in a car which matched the description of the automobile connected to the homicide. The arresting officer, who had information that the crime had been committed by several white males, made the arrest approximately two and one-half hours after the killing. His cognizance of these facts gave him probable cause to justify the arrest. See, State v. McLemore, 561 P.2d 1367 (Okl.Cr.1977).

The appellant also argues that his confession was involuntary. He claims he was only qualifiedly informed of his right to have an attorney present. At the in camera hearing the trial court found that the appellant's statement was voluntary; that he had been fully advised of his constitutional rights and had affirmatively waived the presence of counsel. The record also shows that the interviewing officer had made it clear that no questions would be asked of him until an attorney was present, if the appellant desired one.

Evidence presented at the in camera hearing indicated that prior to the interview an attorney hired by the appellant's father had advised Boutwell to remain silent. After being informed of the Miranda rights, the appellant made this known to the police detective, whose purpose had been to interrogate him concerning robberies unrelated to this offense. When told this, the detective began to leave. The appellant, however, stopped him and asked what he had wanted to discuss. The detective told him he had wanted to discuss other robberies in Oklahoma City, but that he could not talk to him further in light of his attorney's advice. The appellant then told him that he did not want an attorney, that he himself had not hired one, and that he would speak to him. Boutwell was again informed of his constitutional rights and indicated he understood them. The appellant told the detective that he had not been involved in any robberies "other than the other night," meaning the one at the convenience store.

We emphasize that the appellant, before making any inculpatory statements, told the detective that he did not want his father to bear the expense of retaining counsel and that he would go ahead and talk. Furthermore, the testimony shows he had indicated he understood an attorney would be appointed to represent him if he could not afford one.

The U.S. Supreme Court in its recent decision of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), held that a waiver of the right to counsel not only must be voluntary, but must also constitute a knowing and intelligent relinquishment of a known right or privilege. The Court held that the standard for determining waiver of right to counsel focuses on whether the accused understood his right to counsel and intelligently and knowingly relinquished it. The Edwards Court said that the Arizona Supreme Court had applied an erroneous standard in that they focused on the voluntariness of the confession. Additionally, the Court stated:

... [W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. [Emphasis added, footnote omitted.]

At the in camera hearing the detective testified he was aware that the accused had already invoked his right to remain silent, but his intention was to question the appellant about offenses unrelated to the robbery-murder. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Supreme Court concluded that the admissibility of statements obtained after a person in custody had decided to remain silent depends under Miranda on whether his "right to cut off questioning" was "scrupulously honored." There the Court found that subsequent questioning about an unrelated homicide, accompanied by complete Miranda warnings, was consistent with a reasonable interpretation of the accused's earlier refusal to answer any questions about the robberies for which he had been arrested. The introduction of the confession to the murder prosecution taken during the subsequent questioning did not violate Miranda.

We similarly find here that the appellant's previously invoked right to remain silent was not violated by the detective's subsequent questioning about unrelated offenses. Further, the appellant, rather than invoking his right to have counsel present, unequivocally expressed his desire to talk to the detective without counsel.

The appellant's conduct indicates he comprehended his right to have counsel present and knowingly relinquished it. The waiver of his right to have counsel present and his confession were not made under circumstances where pressures to talk weighed against his power to resist confessing. See, Jurek v. Estelle, 593 F.2d 672 (5th Cir.1979); Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953).

The appellant's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were not violated and the confession was properly admitted into evidence. Hutton v. State, 473 P.2d 303 (Okl.Cr.1970); Arnold v. State, 548 P.2d 659 (Okl.Cr.1976).

II

The appellant next claims he was denied due process of law because Juror Nichols was not excused for cause. She was ultimately excused on defense counsel's peremptory challenge. From a reading of the voir dire it is clear that she was not irrevocably committed to imposing the death penalty. She stated that imposition of the death penalty would depend on the circumstances and that "[n]ot everyone should get the death penalty ...." Furthermore, the response "probably" to the question of whether the death penalty would be appropriate in a premeditated killing was equivocal, especially in light of her expressed desire to consider the circumstances.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Supreme Court enunciated the principle that the most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed before the trial has begun.

Accordingly, we find that the trial court did not err in refusing to excuse Juror Nichols for cause.

III

Because of commonality of subject matter, we shall consider Propositions III and VI together.

The appellant assigns as error the admission of State's Exhibits No. 1, 12, and 27. Exhibit No. 1 was a color photograph depicting the victim lying dead on the floor of the convenience store. This photograph was probative in that it showed the relative position of the body and points of entry of the gunshot wounds. We find its probative value outweighed any prejudicial effect and that it was therefore properly admitted. Glidewell v. State, 626 P.2d 1351 (Okl.Cr.1981).

State's Exhibits No. 12 and 27 were photographs of the victim taken while he was alive. The admission of photographs into evidence generally falls within the discretion of the trial court. President v. State, 602 P.2d 222 (Okl.Cr.1979). We fail to see the relevancy of these exhibits because the victim's identity was not at issue. With increasing frequency prosecutors in this state have been introducing for no relevant purpose photographs of the victims taken when they were alive. This practice should cease as it has little bearing on the issues of guilt or innocence to be decided by the trier of fact. In this case, however, when considered with the overwhelming evidence against the accused, these items...