Brecheen v. State, PC-89-183

Decision Date29 June 1992
Docket NumberNo. PC-89-183,PC-89-183
Citation835 P.2d 117
PartiesRobert A. BRECHEEN, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Robert Allen Brecheen, Appellant, was convicted of First Degree Murder and Burglary in the First Degree in the District Court of Carter County, Case No. CRF-83-127. He was sentenced to death for the murder and received a sentence of twenty years for the burglary. Both convictions were affirmed by this Court following Petitioner's direct appeal. Brecheen v. State, 732 P.2d 889 (Okl.Cr.1987) cert. denied 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 244 (1988). The trial court's decision to deny post-conviction relief is AFFIRMED.

Gloyd L. McCoy, Deputy Appellate Public Defender, Scott W. Braden, Asst. Appellate Public Defender, Allen Smith, Sp. Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Sandra Diane Howard, A. Diane Hammons, Asst. Attys. Gen., Oklahoma City, for appellee.

OPINION

LANE, Presiding Judge:

Petitioner, Robert A. Brecheen, was convicted of Murder in the First Degree and Burglary in the First Degree in the District Court of Carter County, Case No. CRF-83-127. The crimes occurred when Petitioner was discovered during his burglary of the Ardmore home of Marie and Hilton Stubbs. The prosecution contended that the crimes were in retaliation for Mr. Stubbs' refusal to lend money to Petitioner. Petitioner claimed that he was forced to commit the crimes by an unidentified black man. Following the jury's guilty verdict, Petitioner was sentenced to death for the murder of Mrs. Stubbs and ordered to serve a term of twenty years for the burglary. Both convictions were affirmed by this Court following Petitioner's direct appeal. Brecheen v. State, 732 P.2d 889 (Okl.Cr.1987), cert. denied 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 244 (1988).

In this first application for post-conviction relief, Petitioner has raised eleven allegations of error. Our consideration of these claims will be strictly limited by the statutory rules which establish our authority in post-conviction matters, 22 O.S.1981, § 1086. We held in Jones v. State, 704 P.2d 1138 (Okl.Cr.1985), that the provisions of Section 1080 are to be applied only those claims which, for whatever reason, could not have been raised on direct appeal. Id. at 1140. See also Johnson v. State, 823 P.2d 370 (Okl.Cr.1992); Banks v. State, 810 P.2d 1286 (Okl.Cr.1991). In keeping with this authority, we will address only those propositions which could not have been brought at the time of the direct appeal. All other allegations are not properly before the Court.

Our consideration of the claims before us indicate that review is appropriate only with respect to three of the propositions, two of which concern jury selection and a third dealing with exculpatory evidence. 1 We consider these claims only because of either an intervening change in the law or because of some circumstance which occurred that was not known (or could not have been discovered) at the time of the direct appeal.

Petitioner has raised a number of issues involving the trial court's denial of his request for a change of venue and how that denial adversely affected his ability to obtain a fair trial before an impartial jury. Although we discussed the merits of related propositions raised in the direct appeal, we feel compelled at this point to note that in actuality, any complaint which Petitioner may have about the composition of his jury must be considered waived due to his waiver of preemptory challenges at trial.

Following the exercise of his seventh of nine preemptory challenge, Petitioner declined to employ his remaining two challenges. At that point, the twelve jurors seated in the box were deemed acceptable and were sworn to try the case. As was the case in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), Petitioner may not complain about the specific composition of his jury, having dispensed with the opportunity to remedy the situation at the trial level. His claim then, that he was forced to use one of his challenges to excuse a potential juror, is totally lacking in significance, given the fact that he did not utilize all the challenges allowed by law. Id.

On another level, Petitioner's complaints concerning the general makeup of his jury are directed to the fact that the majority of those called to potentially serve on the jury were in some way familiar with the victim of this crime or her family. We will assume that this contention is general to the jury panel, rather than specific to individual jurors. The concern seems to be not that any single person on the jury was directly unacceptable in any articulable way, but that the prevalent familiarity 2 with the victims, who owned a popular western wear store, coupled with knowledge of pretrial publicity culminated in a denial of due process. We find that due to a subsequent change in the standard under which such a claim must be reviewed, this issue is properly before us at this time.

Although several allegations of error were asserted with respect to the voir dire process as a part of the direct appeal, Petitioner properly points out that since the decision was rendered in his case, this Court has substantially changed the standard of review which is applied to questions of fair venue. At the time his appeal was considered, this Court utilized a relatively strict test when considering claims that a different venue should have been allowed when there has been extensive pretrial publicity in the county where the crime occurred. In connection with this Court's affirmation of the trial court's denial of Petitioner's request for a change of venue, we held that such a change is warranted only "when a criminal defendant establishes by clear and convincing evidence that a fair trial is a virtual impossibility." Brecheen, 732 P.2d at 893.

Subsequent to our denial of Petitioner's claims on appeal, we considered the same issue in Coates v. State, 773 P.2d 1281 (Okl.Cr.1989). In that case, rather than considering whether selection of an impartial jury was a "virtual impossibility," we applied a two step test derived from previous cases by this Court in conjunction with dictates from the Supreme Court. The first prong of the analysis requires a finding that " 'the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings.' " Coates, 773 P.2d at 1286, quoting Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975). If the media involvement in the case is rampant, prejudice is presumed.

The second level of inquiry is more incorporeal in that it requires an examination of the entire process to determine whether or not the defendant received a " 'fundamentally fair' trial." Id. quoting Brown v. State, 743 P.2d 133, 136 (Okl.Cr.1987). This determination must go farther than a simple consideration of whether or not each juror has promised to "set aside his opinion and consider only the evidence presented at trial." Id.

In the present case, we need not reconsider the issue of venue in any great detail. Although it is quite true that almost all of the seated jurors had some knowledge of the victim in this case due to her store ownership, and had some media exposure to the facts underlying the charges, there is no indication that the influence of the media "pervaded the process" or that the jury selected was "inherently unfair." None of the jurors actually seated were acquaintances of the victim, but had merely been customers in a store bearing her name. Likewise, though most recalled reading about the crime, none recalled specific details and all related that the reports would not influence their decision making or fact finding processes.

Although we have changed the standard of review to some extent, we have not changed the ultimate fact that a fair jury does not necessarily require totally uninformed jurors. We held in Petitioner's direct appeal, that "a defendant is not entitled to a jury which is unacquainted with the victims or the facts of his or her case." Brecheen, 732 P.2d at 893. See also McBrain v. State, 764 P.2d 905 (Okl.Cr.1988); Wilkett...

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