Brogie v. State

• Citation: 695 P.2d 538
• Decision Date: 02 January 1985
• Docket Number: No. F-80-553,F-80-553
• Parties: Kirk Wayne BROGIE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 538

695 P.2d 538

Kirk Wayne BROGIE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-553.

Court of Criminal Appeals of Oklahoma.

Jan. 2, 1985.

Rehearing Denied March 11, 1985.

Joel Barr, James I. English, III, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Presiding Judge:

Kirk Wayne Brogie was convicted of first degree felony murder, and was sentenced to death, in Cleveland County District Court, Case No. CRF-79-640. On appeal, he presents fifteen assignments of error.

The conviction arose out of the disappearance of Ms. Leslie Gail Buford on the evening of August 23, 1979. It appears that appellant and three passengers, John Webster, David Owens and David Blackwell, stopped to assist the woman along Interstate Highway 40 in Oklahoma City. One of the tires on her car was flat, and she did not have a spare. It was agreed that appellant would drive the woman to a telephone, while the other men remained with the disabled vehicle.

The lady was unable to reach her boyfriend, and appellant agreed to give her a ride home after picking up his friends. However, after going back for his companions, appellant drove to a remote part of Oklahoma City located within Cleveland County. En route, knives were pulled on the woman; she was undressed and repeatedly sexually assaulted; jewelry was removed from her person, and her purse was rifled.

After stopping the car, appellant also assaulted the victim. Eventually, the woman was forced to kneel in the gravel roadway, and her throat was slit. The victim was then stabbed repeatedly, and struck several times on the head with a piece of asphalt. Her car was taken to a remote location near an Oklahoma City lake and burned.

The body was not discovered until September 5, 1979, and was badly decomposed. However, the medical evidence was consistent with blows to the head with the rock, and numerous knife cuts to the body.

As his first assignment of error, appellant complains of the failure to afford him a preliminary hearing on the bill of particulars. However, this Court has firmly rejected the necessity of such a hearing in a capital case. See, Stafford v. State, 669 P.2d 285 (Okl.Cr.1983); Stafford v. State, 665 P.2d 1205 (Okl.Cr.1983); Jones v. State, 660 P.2d 634 (Okl.Cr.1983); and Brewer v. State, 650 P.2d 54 (Okl.Cr.1982). We see no reason to depart from that holding.

Appellant's second assignment of error is that three photographs, State's Exhibits 66, 67 and 68, were improperly admitted into evidence. However, the record reflects that those photographs were in fact excluded by the trial judge at the request of defense counsel.

As his third assignment of error, appellant complains of the refusal of the trial judge to appoint a psychiatrist to assist defense counsel. Here again, we have repeatedly stated that there is neither constitutional mandate nor statutory authority for the appointment of experts to assist an accused. See, e.g., Ake v. State, 663 P.2d 1 (Okl.Cr.1983) cert. den., 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 123; Cox v. State, 644 P.2d 1077 (Okl.Cr.1982); Goforth v. State, 644 P.2d 114 (Okl.Cr.1982); Maghe v. State, 620 P.2d 433 (Okl.Cr.1980); and Irvin v. State, 617 P.2d 588 (Okl.Cr.1980). We observe that appellant was examined at a state mental facility prior to trial.

Under his fourth assignment of error, appellant contends that the evidence was insufficient to support the finding in the penalty phase of trial that the murder was "especially heinous, atrocious, or cruel," 21 O.S.1981, § 701.12(4). This contention is without merit.

In assessing the sufficiency of the evidence of an aggravating circumstance, it must be determined whether there was any competent evidence to support the State's charge, in other words, whether there was any evidence from which the jury could find that the aggravating circumstance existed. Cf. Johnson v. State, 665 P.2d 815, 816 (Okl.Cr.1982) (trial judge must apply a similar standard in ruling on a motion for directed verdict in the sentencing stage). In the application of this aggravating circumstance, "heinous" means "extremely wicked or shockingly evil"; "atrocious" means "outrageously wicked and vile;" and "cruel" imports a design "to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others." Stafford v. State, 665 P.2d at 1217.

The evidence, viewed in the light most favorable to the State, see generally Renfro v. State, 607 P.d 703 (Okl.Cr.1980), was clearly sufficient. The State secured the incorporation of the first stage evidence in the penalty phase by jury instruction. The State relied heavily in the first phase on the testimony of John Webster. According to Webster, the appellant was one of the men who threatened the victim with knives in the car. When the woman pleaded that she not be harmed, appellant put his knife to her throat and warned, "One more word and you get it now, baby."

After the car stopped, appellant was the one who ordered the victim to get on all fours in the gravel road. Appellant handed his knife to David Owens, ¹ and nodded his head up and down. As Owens walked over to the victim, she asked what they were going to do to her; Owens ordered her to be quiet. Webster turned away as Owens put the knife under the victim's throat; when he turned back, the victim lay on the ground bleeding heavily from the throat area.

Appellant and Blackwell then began stabbing the victim rapidly, all over. When one of the others remarked that Webster had not joined in the stabbing, appellant held his knife out to Webster, and said, "Do it or you'll be with her." After stabbing the woman twice, Webster went to the car and vomitted; when he looked back, appellant and Blackwell were stabbing the victim again.

Appellant instructed that the victim be dragged into the weeds. When Blackwell noticed that the woman was not dead, he and Owens struck her on the head with a piece of asphalt. Her body jumped after one of the blows, and she was struck a third time. Afterwards, appellant stated that "if she wasn't dead yet, that she would die by morning of exposure and bleed to death."

At appellant's direction, the men drove the victim's car to the spot at which it was later discovered, and set it afire with gasoline. Later, when Blackwell inquired whether there was anything wrong with the appellant, he stated that he was "just planning the next one."

According to the pathologist, the throat is a tender area, and a cut would cause a great deal of pain before the victim became unconscious. It would take at least several minutes for enough blood to pump out to cause shock and unconsciousness. The person could linger for a matter of minutes or for an hour or more, depending upon the vessels cut and the depth of the wound. In this case, the cut was not deep enough to have nicked the bones at the back of the victim's throat.

The evidence was clearly sufficient to support the aggravating circumstance. Appellant's further contention under this assignment of error, that the statutory aggravating circumstance is unconstitutional due to inconsistent application in other previous cases, is not well taken. Appellant concedes the facial validity of the aggravating circumstance. Jones v. State, 660 P.2d 634 (Okl.Cr.1983). This concession, coupled with our finding that the aggravating circumstance was properly applied to appellant's case, is fatal to appellant's contention, in our view. In effect, appellant urges the insufficiency of the evidence in other cases, a contention which affords no ground or relief for appellant.

As his fifth assignment of error, appellant argues that evidence of the burning of the victim's car, and a subsequent plot by appellant and Blackwell to kill Owens, was improper other crimes evidence. This contention is without merit. The burning of the car was part of the entire transaction surrounding the victim's death, and was properly admitted. See Blackwell v. State, 663 P.2d 12, 15 (Okl.Cr.1983).

The plot to shoot Owens was admissible under Wills v. State, 636 P.2d 372 (Okl.Cr.1981). The plot was hatched during the ten to twelve day period after the crime, and was spawned by the fear that Owens was about to go to the police. Evidence of efforts by the accused to suppress or destroy evidence, for example, by attempting to influence, bribe or cause the absence of a witness at trial, is admissible as a circumstance tending to show guilt.

We find no violation of Burks v. State, 594 P.2d 771 (Okl.Cr.1979), in the use of this evidence. Pretrial notice of intent to use the burning of the car at trial was not required, since it was part of the res gestae. Moreover, the record suggests that the State was not aware of the evidence in time to have afforded pretrial notice. See Wills v. State, supra. The transcript supports appellant's assertion in his brief that John Webster "suddenly volunteered" the information in response to an unrelated question by the prosecutor. Defense counsel did not object to the evidence, nor did he request a limiting instruction. Id.

As his sixth assignment of error, appellant contends that the death penalty is unconstitutional due to the absence of sufficient particularized guidance in the consideration of mitigating circumstances. He does not indicate the additional guidance which should be afforded.

The jury was instructed that it must assess punishment at life in prison if the aggravating circumstances did not outweigh the mitigating, and the judge submitted eight minimum mitigating circumstances for their consideration. See Chaney v. State, 612 P.2d 269 (Okl.Cr.1980). Specific standards for the balancing of the aggravating and mitigating circumstances are not constitutionally required. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983), Note 13. See also State v. Jordan, 137 Ariz. 504, 672 P.2d...