Brennan v. State, C-85-690

• Decision Date: 21 December 1988
• Docket Number: No. C-85-690,C-85-690
• Citation: 766 P.2d 1385
• Parties: Mark Edward BRENNAN, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1385

766 P.2d 1385

Mark Edward BRENNAN, Appellant, v. STATE of Oklahoma, Appellee.

No. C-85-690.

Court of Criminal Appeals of Oklahoma.

Dec. 21, 1988.

An Appeal from the District Court of Oklahoma County; William S. Myers, Jr., District Judge.

Mark Edward Brennan, appellant, pled guilty to Burglary in the First Degree and Murder in the First Degree in Oklahoma County District Court, Case No. CRF-84-5330. He received sentences of ten years' imprisonment and the death penalty, respectively. Judgment and sentence for First Degree Burglary AFFIRMED. Judgment and sentence for First Degree Murder MODIFIED to LIFE IMPRISONMENT.

Robert A. Ravitz, Public Defender, Oklahoma County, Tom R. Cornish, Oklahoma City, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PER CURIAM:

Mark Edward Brennan pled guilty to the crime of Murder in the First Degree and Burglary in the First Degree in Oklahoma County District Court on August 21, 1985. On September 30, 1985, District Judge William S. Myers conducting a hearing to receive evidence of aggravating and mitigating factors, at the end of which formal sentencing was conducted. A sentence of ten years' imprisonment was imposed for the burglary, and the death penalty was assessed on the murder conviction. He now urges that a number of error occurred in the district court and that his conviction for First Degree Murder should be reversed or his death sentence modified to life. He does not question this Burglary conviction and sentence.

Appellant assigns as error the presence of television cameras in the courtroom during the sentencing hearing which were allowed to remain over his objection. The trial court ruled it was within the Court's discretion to allow them. Appellant contends that their presence violated 5 O.S.1981, Ch. 1, App. 4, Canon 3(A)(7)(e), which provides:

No photographing, or broadcasting by radio or television of any portion of any criminal proceeding, and continuing until the issues have been submitted to the jury for determination, unless all accused persons who are on trial shall have affirmatively, on the record, given their consent to the photographing or broadcasting. (Emphasis added.)

He contends he was prejudiced by the presence of the cameras because one witness changed her statement about appellant's drunkenness on the day of the offenses, and because it pressured the judge into imposing the death penalty.

This Court discussed the use of television cameras in the courtroom in Kennedy v. State, 640 P.2d 971, 982 (Okl.Cr.1982), while discussing Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981), stated that Chandler establishes that there is no per se constitutional rule which forbids electronic coverage of a courtroom trial. However, this Court then noted that the Oklahoma Supreme Court guidelines place positive obligations on trial judges to insure protection of the accused's fundamental rights to a fair trial. In the instant case, the situation is different to that found in Kennedy in that each witness was televised and all court personnel, the district attorney, the appellant and defense counsel were photographed. There is no doubt in this Court's mind, after considering this appeal on petition for rehearing, and the provisions of Oklahoma law and specifically the provisions of the statute governing the use of cameras in the courtroom that it was error to permit filming over the defendant's objection.

In his second assignment, appellant argues the trial court erred in refusing to admit a letter from Dr. Garcia, a psychiatrist at Eastern State Hospital, wherein Garcia opined that appellant, if released, would probably not pose a continuing threat to society. Although the record reflects that the trial judge was "aware" of Dr. Garcia's letter (M.Tr. Oct. 17, 1985, at 34), in view of his sustaining the State's objection to its inadmissibility, it cannot be said that he properly considered it. In reviewing United States Supreme Court decisions concerning the admission of mitigating evidence, we recently reiterated that, in capital cases, "any relevant, reliable mitigating evidence should be presented to the sentencer...." Bromley v. State, 757 P.2d 382, 386 (Okl.Cr.1988). The State does not claim the letter was unreliable or irrelevant, but instead submits no error occurred for two reasons: (1) the letter was not admissible under provisions of the Oklahoma Evidence Code; or (2) because similar evidence was presented by a defense psychiatrist, Dr. Short, who testified that his opinion that appellant did not constitute a continuing threat to society was based in part on the records of Eastern State Hospital, such evidence was cumulative.

A State cannot mechanistically apply its rules of evidence to exclude relevant and reliable evidence from the punishment phase of a capital trial. See Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151, 60 L.Ed.2d 738 (1979). Accord Dutton v. Brown, 812 F.2d 593, 601 (10th Cir.1987). Characterizing excluded mitigating evidence as cumulative and thus harmless, is implausible where the evidence the defendant was allowed to present...