Brown v. State
| Decision Date | 31 December 1998 |
| Docket Number | No. F 97-493.,F 97-493. |
| Citation | 1998 OK CR 77,989 P.2d 913 |
| Parties | Darwin Demond BROWN, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Allen M. Smallwood, Tulsa, Oklahoma, for defendant at trial.
William LaFortune, District Attorney, Brett Swab, Assistant District Attorney, Tulsa, Oklahoma, for the state at trial.
Johnie O'Neal, Tulsa, Oklahoma, for appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer B. Miller, Assistant Attorney General, Oklahoma City, Oklahoma, for appellee on appeal.
¶ 1 Appellant, Darwin Demond Brown, was charged conjointly with three codefendants2 with the crimes of, count one, first degree malice murder and, in the alternative, first degree felony murder, 21 O.S.1991, § 701.7(A) & (B) and, count two, robbery with a dangerous weapon, 21 O.S.1991, § 801 in the District Court of Tulsa County, Case No. CF-95-1024. The State filed a Bill of Particulars alleging three aggravating circumstances. A jury trial was held before the Honorable E.R. "Ned" Turnbull, District Judge. The jury found Brown guilty of first degree murder and robbery with a dangerous weapon. After the punishment stage, the jury found the existence of all three aggravating circumstances: the murder was especially heinous, atrocious or cruel, the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12(4), (5) & (7).
¶ 2 Brown's codefendant Michael Wilson was employed at the QuikTrip convenience store located at 215 North Garnett Road in Tulsa, Oklahoma, where Richard Yost also worked. Brown and the codefendants came into the store during the early morning hours of February 26 and waited for the most opportune time to accost Yost. The QuikTrip surveillance camera captured the events as they unfolded. The video of the events is quite telling.
¶ 3 Yost was cleaning the windows on the coolers with all of the defendants surrounding him. As Yost was walking near a passage-way to the back room, all four defendants attacked him and dragged him to the back room. One of the defendants, Billy Alverson, came back out and picked up some items that were knocked from the shelves. He also kept watch for customers. A few moments later, Alverson and Richard Harjo walked out the front door of the store. While they were going out, Yost was yelling and screaming for help, possibly thinking that a customer had entered the store. Alverson and Harjo re-entered the store with Harjo carrying a black aluminum baseball bat. He carried the bat to where Yost had been taken. The surveillance camera picked up the sounds of the bat striking Yost. Circumstantial evidence showed that the baseball bat struck the handcuffs on Yost's wrists which Yost was holding above his head to ward off the blows. As the blows were being struck, Wilson walked from the back room, checked his hands, put on a QuikTrip jacket, got behind the counter and tried to move the safe. While Wilson was behind the counter, several customers came in. Wilson greeted them with a friendly greeting, sold them merchandise, then said "thank you, come again" or "have a nice day."
¶ 4 All this time Wilson continued to try and pull the safe from underneath the counter. He took money from the cash drawer and pulled money out of the currency change machine. At some point after this, Wilson left the counter area and the video went blank as the video was taken from the recorder. Brown was never seen exiting the back room between the times Yost was dragged into the room until the video recorder was stopped. The defendants then loaded two safes into Wilson's car using a dolly from QuikTrip.
¶ 5 Yost's body was discovered by customer Larry Wiseman at about 6:00 a.m. Yost was laying on the floor in a pool of blood, milk and beer. Yost's ankles were taped together with duct tape. One handcuff was found near Yost's body. The other cuff was missing from the scene. Detectives learned that Wilson was at the store between the hours of 4:00 a.m. and 6:00 a.m.
¶ 6 Wilson failed to show up for work at the scheduled time of 3:00 p.m. on the same day. Officer Allen set up surveillance on Wilson's house, and at about 4:00 p.m. he spotted Wilson get into a gray vehicle. The vehicle was stopped. All four defendants were taken into custody. A large number of five dollar bills was recovered from Harjo at the site of the stop. Later, at the police station, money was recovered from all of the defendants except Wilson.
¶ 7 Officers searched Alverson's place of abode where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes and the store surveillance videotape. A search was conducted of Wilson's house but nothing of value was discovered. The next day Wilson's mother called Officer Makinson to come to her house. Once there, the detectives found several items of evidence on the front porch, including the baseball bat, a bloody QuikTrip jacket with Yost's name on it, Wilson's Nike jacket matching the one worn in the store video and the other cuff of the set of handcuffs.
¶ 8 Brown raises eighteen propositions of error in his appeal. These propositions will be addressed as they arose at trial.
¶ 9 In proposition two, Brown raises several issues concerning the use of dual juries in this case. Although he was tried conjointly with codefendant Wilson, each defendant had a separate jury deciding their fate.
¶ 10 In Cohee v. State, 1997 OK CR 30, ¶ 2, 942 P.2d 211, 213, a majority of this Court set forth Guidelines Governing Juries in Criminal Trials which included, in Guideline 2, approval of the use of dual juries in cases where codefendants are charged. Very little guidance was given to trial courts in the implementation of this procedure except for the provision that:
Both juries will be seated in the jury box and the evidence pertaining to both defendants will be presented to both juries simultaneously. Evidence admissible as to one co-defendant shall be presented to that defendant's jury only.
Cohee, 942 P.2d at 213. We now have before us Brown's claim that the dual jury system is not authorized under Oklahoma law and the procedure violates a defendant's constitutional rights. We previously ruled, in an "Extraordinary Writ" action by Brown, that the trial court has the discretion to implement a dual jury procedure because Oklahoma law does not prohibit such a procedure.3 Under the theory of collateral estoppel (issue preclusion), "once a court has decided an issue of fact or law necessary to its judgment, that issue may not be re-litigated between the same parties or their privies in a suit on a different cause of action." Wilson v. Kane, 1993 OK 65, n. 23, 852 P.2d 717, 727, n. 23.4 Therefore, the principle of collateral estoppel prevents Brown from raising the issue of whether the dual jury procedure is authorized in Oklahoma. However, Brown's arguments regarding the dual jury procedure's effect on his rights are properly before us.
¶ 11 We first note that jurisdictions which have approved the use of a dual jury system or a multiple jury process require a defendant to show actual prejudice from the use of this novel approach to multiple defendant trials.5 We find this approach comports with Oklahoma law. The use of the multiple jury process is constitutional, and a conviction had with the use of the multiple jury system will be upheld absent a showing of specific prejudice.
¶ 12 Brown claims that the dual jury system violates his right to free, unfettered cross-examination because it has a chilling effect on effective cross-examination. He claims that this problem was magnified when the trial court instructed defense counsel that it is the responsibility of attorneys for the State and defense to advise the Court of testimony which would make it necessary to have the juries separated. The trial court told the attorneys that they would have to work a little harder and that the trial court did not anticipate that any of the attorneys would purposely taint the proceedings in front of the jury.
¶ 13 Brown asserts that counsel could either pursue evidence prejudicial to the codefendant and cause a prejudicial spectacle of removing one jury during the course of the trial; prejudicial because removal would place, in the removed jurors' minds, the idea that something bad was about to be said about their respective defendant.
¶ 14 We fail to see the quandary here. The better course is to remove the jury which may be subject to information that they would otherwise be prohibited from hearing. The jury should be instructed that they are not to speculate about what went on in their absence and not to hold it against the defendant for whose fate they were deciding. We believe that the trial court's instructions to the juries sufficiently protected Brown from any prejudice arising from removal of his jury.
¶ 15 The trial court, in its initial instructions, told both juries that they would be removed from the court room when evidence was presented that did not pertain to their particular defendant. The trial court asked the juries collectively if they could assure the court that they would "not attempt to draw any inference, or come to any conclusions, or guess at what evidence may be presented or is being presented at the time when you were outside of the courtroom." The juries collectively answered in the affirmative.
¶ 16 We believe that the trial court's instructions to the juries correctly informed them of their duty. We have not found nor has Brown presented evidence that the jurors did not follow this admonishment.
¶ 17 Brown claims that the dual jury system creates a conflict of interest for defense counsel because he must not...
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