Brewer v. State
| Decision Date | 18 August 1982 |
| Docket Number | No. F-79-609,F-79-609 |
| Citation | 1982 OK CR 128,650 P.2d 54 |
| Parties | Benjamin BREWER, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Benjamin Brewer, was charged, tried and convicted in the District Court of Tulsa County, Oklahoma, Case No. CRF-78-2137, for Murder in the First Degree, pursuant to Laws 1976, ch. 1, § 1, now 21 O.S.1981, § 701.7. He was sentenced to death by the jury.
The facts in this case are relatively simple. Karen Joyce Stapleton was found dead in her Tulsa apartment on August 17, 1978. Examination of the semi-nude body revealed that death had occurred on or around August 16, 1978, as a result of twenty (20) stab wounds. The appellant was arrested on August 19, 1978, for the murder. He made three separate statements to Tulsa police officers in which he confessed killing Karen Stapleton and directed them to the location of her car, which he had stolen and hidden.
Unfortunately, the appellant's right to a fair trial was the victim of an overzealous prosecutor. The record is replete with error committed during both stages of the trial, which when considered in a cumulative fashion, necessitates that the conviction be reversed and remanded for a new trial. Because of the result reached in this decision, we need only address those issues pertinent to our reasons for reversal, and to those affecting the re-trial.
We turn first to the factor contributing the most weight to our decision to reverse the appellant's conviction: the overzealous conduct of the prosecuting attorney. The prosecutor in this case embarked on a campaign of prejudicial theatrics which doubtless resulted in unfair prejudice to the appellant. The following examples illustrate, though certainly do not exhaust, the prosecutor's erroneous conduct at trial.
1) As he was cross-examining the appellant's expert witness concerning the appellant's insanity defense, the prosecutor stabbed State's Exhibit Number 10 (a 16 inch by 20 inch photograph of the deceased victim's body as it was found at the murder scene) four separate times with the knife used in the murder. Although we recognize that the prosecutor's range of free speech and illustration is wide, Wright v. State, 617 P.2d 1354 (Okl.Cr.1979), this policy does not contemplate such outrageous behavior. It is impossible to attribute any probative value whatsoever to the prosecutor's actions. The episode went entirely outside the scope of the record and was designed purely for its unfair prejudicial impact on the jury. This conduct was impermissible.
2) At another point the prosecutor ridiculed the defense attorney's objections before the jury:
MR. McCARTHY: We object to counsel's comments concerning matters of law. That's up to the court.
MR. McCARTHY: Would you admonish the jury?
THE COURT: They are so admonished.
The prosecutor's conduct of not allowing defense counsel an opportunity to be heard on his objections, coupled with the needless ridicule demonstrate a lack of respect for the appellant's constitutional right to a fair trial which this Court shall neither tolerate nor condone. See generally, Chandler v. State, 572 P.2d 285 (Okl.Cr.1977). We cannot say that the trial court's statement "They (the jurors) are so admonished" was sufficient to cure the error.
3) During the sentencing hearing, the prosecutor twice referred to the possibility that, if acquitted, the appellant would commit similar crimes in the future. This line of argument is highly improper. It is error to comment on the possibility that a defendant may commit crimes in the future. 1 See, Hager v. State, 612 P.2d 1369 (Okl.Cr.1980); Lime v. State, 479 P.2d 608 (Okl.Cr.1971).
4) The prosecutor told the jury during the sentencing stage that the homicide rate in Oklahoma had increased 28 percent, and that although juries were imposing the death penalty, no one had been put to death since 1966. We have held numerous times that references to the crime rate are improper because they present matters extraneous to the evidence and tend to impose responsibility on the jurors for the rising crime rates. Hager, supra; Coats v. State, 589 P.2d 693 (Okl.Cr.1978); Cooper v. State, 584 P.2d 234 (Okl.Cr.1978).
The above remarks and other similar comments amply support the appellant's contention that he was denied a fair trial.
The appellant's next contention that certain evidence should have been excluded from the trial pursuant to a motion in limine presents a troublesome issue. In one of his statements to the police, the appellant admitted that he gained entrance into the victim's apartment by first breaking into an adjacent apartment and crawling through a common attic-way. The judge sustained the appellant's motion in limine to delete that portion of the confession. During the hearing on that motion, the prosecutor agreed to the deletion, stating:
When taken as a whole I can see no relevance to the entry into the apartment next door at this time and I can find no exception for its use as evidence in this case, so we have no objection to the court granting that motion and we would join in the motion and the only thing left, of course, is the physical aspect of extracting that from the confession, so however counsel wants to go about that, we'll be glad to join in that.
During the trial, the State introduced evidence which demonstrated that the appellant may have broken into the apartment adjacent to the victim's. 2 , 3
The prosecutor complied with the motion to the extent that no references to the deleted portion of the appellant's confession were made. However, the prosecutor accomplished the same result that the motion in limine was designed to prevent by introducing the evidence described above. Thus, although we do not accuse the prosecutor of going back on his word, we urge that the better practice on retrial will be for the prosecutor to either 1) not join in such a motion, and then to follow the procedure outlined in Burks v. State, 594 P.2d 771 (Okl.Cr.1979) to introduce the appellant's acts of breaking in; or 2) to join in the motion and delete all references to the breaking in. 4
The appellant further complains that the prosecutor improperly introduced evidence of other crimes in his trial. There was evidence which indicated that the appellant stole the victim's automobile, purse, and dog. The presence of semen in the victim's vagina led the prosecutor to infer throughout the trial that the appellant raped her. Because of the manner of disposition of this case, we need once again only remind the prosecutor of the guidelines established in this State for the introduction of other crimes at trial. If the State wishes to use the evidence, the appropriate measures must be taken to ensure the appellant is forewarned.
We turn now to issues not affecting our decision in this case, but nonetheless pertinent to retrial.
In his eighteenth allegation of error, the appellant claims the trial court erred in failing to sustain his demurrer to the information. The information adequately met the requirements of 22 O.S.1981, § 401. The appellant was not misled as to the charges against which he had to defend himself, neither was he exposed to the possibility of being placed in jeopardy a second time for his offense. Holloway v. State, 602 P.2d 218 (Okl.Cr.1979). The trial court did not abuse its discretion in overruling the demurrer.
The next issue concerns the introduction of photographic reproductions of the victim's body and wounds at trial. We find no error in the introduction of eight color slides depicting specific wounds on the victim's body. The photographs were taken at the morgue after the body had been cleansed. They served to illustrate the testimony of the medical examiner. See, Bills v. State, 585 P.2d 1366 (Okl.Cr.1978).
We also find no error in the introduction of a 16 inch by 20 inch black and white photograph of the victim's body as it was found at the murder scene. The photograph is admittedly gruesome in nature, however the occasioned death was a gruesome deed. The photograph accurately and faithfully represented the scene as it was found by Tulsa police...
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