Bowie v. State

• Decision Date: 15 July 1991
• Docket Number: No. F-87-553,F-87-553
• Citation: 816 P.2d 1143,1991 OK CR 78
• Parties: Benito Jerome BOWIE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1143

816 P.2d 1143

Benito Jerome BOWIE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-87-553.

Court of Criminal Appeals of Oklahoma.

July 15, 1991.

As Corrected Aug. 9, and Oct. 17, 1991.

Rehearing Denied Oct. 17, 1991.

An appeal from the District Court of Oklahoma County; Charles L. Owens, District Judge.

Appellant, Benito Jerome Bowie, was tried and convicted by a jury for the crime of Murder in the First Degree, in Case No.

CRF-86-2004, in the District Court of Oklahoma County. The State filed a Bill of Particulars seeking imposition of the death penalty. The jury, however, was unable to unanimously agree on the appropriate punishment, therefore the trial court dismissed the jury and imposed life imprisonment. From this judgment and sentence, appellant appeals. AFFIRMED

Jamie D. Pybas, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, State Atty. Gen., and Susan Stewart-Dickerson, Assistant Atty. Gen. Chief, Crim. Div., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Appellant, Benito Jerome Bowie, was tried and convicted by a jury for the crime of Murder in the First Degree, in violation of 21 O.S.1981, § 701.7, in Case No. CRF-86-2004, in the District Court of Oklahoma County. The State filed a Bill of Particulars seeking imposition of the death penalty. The jury, however, was unable to unanimously agree on the appropriate punishment, therefore the trial court dismissed the jury and imposed life imprisonment as required by 21 O.S.Supp.1987, § 701.11. From this Judgment and Sentence, appellant has perfected his appeal to this Court.

At trial, several witnesses testified that appellant offered to pay anyone $5,000 to kill the decedent, Melvin Traylor. Appellant offered Gary Fisher $7,000 to find someone to kill Traylor. About ten days before Traylor was killed, appellant contacted Fisher to tell him not to worry about it because he had found a "young punk" to do the job for $5,000. Roger Britt, one of the top men in appellant's organization, gave a gun to a young man, Freddie Ervin. On appellant's orders, on November 19, 1984, Britt took Ervin to his sister's (Cathy Britt) house to "watch her back" while she sold cocaine for appellant. Appellant knew that Traylor would eventually show up at Cathy's house to purchase some cocaine. That night, in the early morning hours of November 20th, Traylor went to the home of Cathy Britt to purchase cocaine. After Traylor made his purchase, and as he was leaving, he was shot by Ervin, then died a short time later. Ervin testified that appellant paid him five thousand dollars ($5,000) a few weeks later for killing Traylor.

In his first assignment of error, appellant contends that the rebuttal testimony of Detective Pacheco deprived him of a fair trial because the officer gave his opinion as to appellant's guilt. It is the sole and exclusive province of the jury to determine whether the accused is guilty or not, to which a witness may not give an opinion. McCarty v. State, 765 P.2d 1215 (Okl.Cr.1988).

In this case, however, the officer, as the State's only rebuttal witness, was not testifying that in his opinion appellant was guilty of murder, as the witness in McCarty had done, but rather the reasons for the almost two year delay in filing charges against Mr. Bowie. Part of appellant's case dwelled on the fact that this murder charge was filed against him the day after he was sentenced in federal court on charges arising out of his narcotics organization. Appellant was implying that Oklahoma authorities were upset that he only received eleven years with no parole and therefore filed the murder charge in retaliation. The essence of Detective Pacheco's testimony was that he had been working on the Traylor murder from the beginning and the State did not have sufficient evidence to link appellant with the murder until charges were filed on April 18, 1986. ¹ Defense counsel did object, which the court sustained, not because the officer gave an improper opinion, but because his answer was unresponsive to the question. Given the tone of the appellant's case-in-chief, we find that this rebuttal testimony was proper and does not require reversal.

In his second assignment of error, appellant asserts that because the testimony of accomplices Britt and Ervin were not corroborated, his conviction must be reversed. Standing alone, the testimony of

an accomplice cannot support a conviction. Title 22 O.S.1981, § 742; Nunley v. State, 601 P.2d 459 (Okl.Cr.1979). There must be some independent evidence linking appellant to the crime as to a material fact; however, the accomplice's testimony need not be entirely corroborated. Lister v. State, 758 P.2d 831, 833 (Okl.Cr.1988). Also, the testimony of one accomplice may not be used to corroborate another. Cox v. State, 726 P.2d 909 (Okl.Cr.1986).

The trial court properly found that both Ervin and Britt were accomplices as a matter of law and correctly instructed the jury that they must find their testimony to be corroborated by independent evidence. We find that there was sufficient evidence corroborating the testimony of both Ervin and Britt to convict appellant; several people, other than Ervin and Britt, testified that appellant offered five thousand dollars for the death of Traylor. Gary Fisher testified that just ten days before the murder appellant said he found someone to kill Traylor, and after Traylor was dead, appellant talked about how good it felt to order someone killed. Therefore, reversal is not warranted and this assignment of error must fail.

Appellant's third assignment of error is related to his second, but likewise does not require reversal of his conviction. In this assignment, appellant contends that the trial court abused its discretion by failing to submit to the jury the question of whether three of the State's witnesses were accomplices as well. The only instance in which the jury needs to be instructed on this issue is when the question of whether someone is an accomplice is susceptible to alternative findings. Underwood v. State, 659 P.2d 948, 954 (Okl.Cr.1983). As to the three witnesses to which appellant is referring, no evidence was presented that would suggest that these witnesses were involved in the murder of Traylor. All three knew that appellant had offered $5,000 to anyone who would kill the decedent, but none of them acted upon that offer or helped Ervin in furtherance of the crime. Therefore this assignment is denied.

In his fourth assignment of error, appellant contends that his fundamental right to a fair trial was violated by the repeated introduction of irrelevant, prejudicial other crimes testimony. The State offered extensive evidence of appellant's illicit drug organization. He concedes that most of the evidence he now complains of was not met with contemporaneous objection at trial and that the State did file notice as required by Burks v. State, 594 P.2d 771 (Okl.Cr.1979). Also, a Motion in Limine was filed to limit the other crimes evidence prior to the first trial which was not renewed prior to the second trial. A ruling on that motion by the trial court is not included in the record before this Court. Therefore, we can only review this issue for fundamental error since it has not been properly preserved for appellate review.

The introduction of this evidence does not amount to fundamental error, especially since appellant told the jury himself about his illegal activities. Even though there does not appear to be a close connection between the illegal drug operations and the murder of Traylor, we do not find that appellant was unduly prejudiced by that evidence. Appellant cites Coates v. State, 773 P.2d 1281 (Okl.Cr.1989), to support his contention that this is reversible error. However, in Coates, the defendant objected to all of the other crimes evidence, the State failed to give adequate notice on some of the evidence, and the defendant did not testify about that other crimes evidence as appellant did in the case at bar. Therefore, though introduction of appellant's drug organization may have been improper, it does not amount to fundamental error that requires reversal.

Appellant's fifth assignment of error is related to the fourth in that he claims reversible error because the trial court refused to give his requested instruction limiting the jury's consideration of the other crimes evidence. Normally, refusal to give such an instruction could amount to reversible error; however, we find that the trial court gave an instruction that was substantially the same as that requested by appellant. (Instruction 14 O.R. 249). See Ross v. State, 717 P.2d 117, 121 (Okl.Cr.1986). Therefore, the trial court's refusal to instruct the jury with the specific language in which appellant requested does not require reversal of his conviction. This assignment is denied.

In his sixth assignment, appellant complains that prosecutorial misconduct in the closing arguments deprived him of a fair trial. Appellant contends that the prosecutor's extensive argument concerning the other crimes evidence was improper and prejudicial. However, most of the statements appellant complains about were not met with objection at trial. The only statements to which counsel did object, appellant contends were attacks on counsel's integrity. As previously discussed, the introduction of the other crimes evidence was not so prejudicial as to deprive appellant of a fair trial, therefore the prosecutor's comments on the same does not amount to reversible error either. After a review of the statements, we find that they do not require reversal since appellant failed to object and most of the comments were fair inferences from the evidence presented. See Johnson v. State, 751 P.2d 196 (Okl.Cr.1988); Wachoche v. State, 644 P.2d 568 (Okl.Cr.1982).

Appellant contends in his seventh and supplemental propositions that the State violated the 120 day time limit under the...