Brewer v. State

• Decision Date: 18 April 1986
• Docket Number: No. F-83-677,F-83-677
• Citation: 1986 OK CR 55,718 P.2d 354
• Parties: Benjamin BREWER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 354

718 P.2d 354

Benjamin BREWER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-677.

Court of Criminal Appeals of Oklahoma.

April 18, 1986.

Rehearing Denied May 19, 1986.

Johnie O'Neal, Asst. Public Defender, Tulsa, for appellant.

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

OPINION

BRETT, Judge:

The appellant, Benjamin Brewer, was convicted of First Degree Murder (21 O.S.1981, § 701.7) and sentenced to death in Tulsa County District Court, Case No. CRF-78-2137, in 1979. This Court reversed the conviction on appeal because appellant had not received a fair trial. Brewer v. State, 650 P.2d 54 (Okl.Cr.1982). Upon retrial, appellant was again convicted of First Degree Murder and again sentenced to death. We affirm.

Karen Joyce Stapleton was found murdered in her Tulsa County apartment on August 17, 1978. She had died as a result of twenty stab wounds. Physical evidence introduced at trial corroborated Brewer's confession that he had killed Stapleton. The main issue of fact at trial was Brewer's sanity at the time of the slaying.

I.

In his first and second assignments of error, the appellant claims that his motion to dismiss should have been sustained because the intentional overreaching by the prosecutor in the first trial (a) gave rise to an exception to the general rule that retrial is not barred by double jeopardy when the appellant requests the same and (b) denied him his constitutional right to a fair and speedy trial.

The general rule is that double jeopardy principles do not bar retrial following appellate reversal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Under that rule, retrial is clearly not a violation of double jeopardy in this case as the reversal was granted at appellant's request.

Nevertheless appellant argues that this case falls under another category of cases, namely those in which double jeopardy precludes retrial following a mistrial if the defendant was goaded into requesting the mistrial by prosecutorial overreaching designed to provoke the mistrial. See, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

Without deciding whether the mistrial rule should ever be applied to reversals on appeal, we find that the retrial in this case was not barred by double jeopardy because in order to invoke double jeopardy as a bar to retrial following a mistrial, the appellant must show not only that there was error but that such error was committed by the prosecution for the purpose of forcing the defendant to move for a mistrial. Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977). The record is devoid of evidence that District Attorney Fallis was provoking a mistrial because there was a danger of acquittal or because a retrial would afford the prosecution a more favorable opportunity to convict the defendant. "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982).

Appellant filed a supplemental brief urging this Court to modify his sentence to life imprisonment on the basis of a recent United States Supreme Court decision, Morris v. Matthews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986). Inasmuch as his argument is based on the premise that jeopardy bars retrial, a contention we reject, this argument must also fail.

II.

We also reject the appellant's claim that the lapse of several years between the commission of the crime and the trial because of the reversal denied him his right to a fair speedy trial. We are cognizant of the greater difficulty involved in proving a defense five years after the fact. But at the same time, the State's case is also harder to prove after such a delay. Unfortunately the wheels of justice often turn slowly. It is no more a disadvantage or advantage to one party than to the other that the case was not properly tried the first time. We have already determined that the errors which mandated reversal of the case were not committed for the purpose of obtaining a new trial at a more favorable time. Thus, we sympathize with the appellant's plight but find no constitutional error. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) (a defendant who obtains a reversal of a conviction through appeal may be retried in the normal course of events, notwithstanding the delay incident to such legal proceedings).

III.

In his third assignment of error the appellant contends the trial court erred in overruling his motions to strike the bill of particulars and to accept his plea of guilty. The appellant had attempted to plead guilty in 1978 before the State filed a bill of particulars seeking the death penalty. Appellant has twice urged this Court to rule the district court had to accept the plea and impose life imprisonment. Twice this Court has rejected his argument.

Appellant's admitted reason for wanting to have his guilty plea accepted is his belief that entering a guilty plea to first degree murder before a bill of particulars is filed precludes the imposition of the death penalty. We find no authority for this theory. It is clear from reading the statutes that imposition of the death penalty is not contingent upon the filing of a bill of particulars.

A person who is convicted of or pleads guilty or nolo contendere to murder in the first degree is subject to punishment by death or by imprisonment for life. 21 O.S.1981, § 701.9. The death penalty cannot be imposed unless at least one statutory aggravating circumstance is found to exist beyond a reasonable doubt, and the State cannot present evidence in aggravation that has not been made known to the defendant prior to trial. 21 O.S.1981, §§ 701.11 and 701.10, respectively.

The filing of a bill of particulars is not required per se by statute but is simply written notice of which aggravating circumstances the State intends to prove and what evidence will be introduced to prove them. Of course if the defendant pleads not guilty, once trial has commenced it is too late for the State to notify the defendant of what evidence in aggravation will be relied upon. Thus, no evidence can be presented on which the judge could instruct and from which the jury could find beyond a reasonable doubt that an aggravating circumstance was present, justifying imposition of the death penalty.

But when a defendant pleads guilty or nolo contendere to first degree murder, there is no commencement of a trial to mark the deadline for notice by the State. In reading 21 O.S.1981, § 701.10 in conjunction with 22 O.S. 1981, § 973, it is clear that under these circumstances the court, upon the suggestion of either party that there are mitigating or aggravating circumstances to be considered, may in its discretion hear the evidence at a specified time and upon notice to the adverse party. Unlike commencement of a trial, acceptance of a guilty plea does not preclude the filing of a bill of particulars.

Even if this Court were to find that the trial court erred in the case at bar in failing to accept appellant's guilty plea, there is no reason to believe that life imprisonment, rather than death, would have been imposed by the court. Error, if any, was therefore harmless.

IV.

That the trial court improperly instructed the jury on the defense of insanity is appellant's fourth assignment of error. The trial court instructed that the defendant is presumed to be sane until a reasonable doubt of his sanity is raised, but that if a reasonable doubt is raised by sufficient evidence, the State then must prove beyond a reasonable doubt that the defendant was sane at the time of the commission of the crime. The appellant had requested that the jury instead be instructed only that the State has the burden to prove that the defendant was sane at the time of the commission of the crime, with no reference to the initial presumption of sanity or overcoming the presumption.

Appellant supports this contention with the Oklahoma Uniform Jury Instruction-Criminal Number 730, which recommends the instruction appellant requested and is followed by a discussion of why the OUJI Commission did not prepare instructions informing the jury of the presumption of sanity or of the defendant's burden to come forward with evidence of insanity, even though instructions on both were routinely being given when the Commission developed the Uniform Jury Instructions. The Commission felt that whether the defendant sufficiently raised a doubt about his sanity was a question of law: if the trial court does not find a sufficient doubt is raised, the jury is given no insanity instruction, but if a sufficient doubt is raised, the jury is instructed only that the State has the burden to prove beyond a reasonable doubt the defendant's sanity. The Commission feared that instructing the jury on the defendant's initial burden would confuse the jury.

We disagree with the Commission that OUJI-CR 730 does not change the law. Whether the defendant has raised a defense of insanity is a mixed question of law and fact. If any evidence of insanity is raised, the judge must instruct the jury on the defense of insanity. Johnson v. State, 621 P.2d 1162 (Okl.Cr.1980). But unless the jury determines the defendant has presented evidence sufficient to raise a reasonable doubt as to his sanity at the time of the offense, the presumption of sanity prevails.

If a defendant presents some evidence of insanity but the trial court refuses to instruct on the defense because he or she deemed the evidence insufficient to rebut the presumption, reversible error would be committed. On the other hand, if the trial court gave the instruction, the error would be against the...