Brown v. State

• Citation: 871 P.2d 56,1994 OK CR 12
• Decision Date: 15 February 1994
• Docket Number: No. F-89-22,F-89-22
• Parties: David Jay BROWN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 56

871 P.2d 56

David Jay BROWN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-89-22.

Court of Criminal Appeals of Oklahoma.

Feb. 15, 1994.

Rehearing Denied March 30, 1994.

An Appeal from the District Court of Grady County; James R. Winchester, District Judge.

DAVID JAY BROWN, Appellant, was tried by jury and convicted of Murder in the First Degree (21 O.S.Supp.1982, § 701.7) in Case No. CRF-88-45, in the District Court of Grady County. The jury found the existence of one aggravating circumstance and recommended punishment of death. The trial court sentenced accordingly. From these judgments and sentences Appellant has perfected this appeal. AFFIRMED.

Chris Box, Oklahoma City, Trial Counsel, Thomas E. Salisbury & Anne M. Moore, Asst. Appellate Public Defenders, Norman, Appellate Counsel, for appellant.

Melvin Singleterry, Dist. Atty., Chickasha, Trial Counsel, Robert H. Henry, Atty. Gen., David Walling & A. Diane Blalock, Asst. Attys. Gen., Oklahoma City, Appellate Counsel, for appellee.

OPINION

LUMPKIN, Presiding Judge:

Appellant David Jay Brown was tried by jury and convicted of Murder in the First Degree (21 O.S.Supp.1982, § 701.7), Case No. CRF-88-45, in the District Court of Grady County. The jury found the existence of one aggravating circumstance, the existence of a probability Appellant would commit criminal acts of violence that would constitute a continuing threat to society (21 O.S.1981, § 701.12(7)), and recommended death as punishment. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal. We affirm.

The murder of Eldon McGuire was discovered on February 20, 1988, when his daughter Lee Ann McGuire, received word he could not be contacted by telephone. The decedent had telephoned his wife, who was a patient in a local hospital, between 7:30 and 7:45 the evening before. He told her he was tired and would visit her the next morning. Lee Ann and Eldon's mother arrived at his house, forced entry through the front door, and discovered the decedent lying in the south end of the living room. Authorities found a cordless telephone in the kitchen area. They also found in the kitchen some meat and cheese unwrapped and uneaten; it appeared the decedent was preparing to eat his evening meal. Appellant was formerly married to Lee Ann, and blamed the decedent for a multitude of problems in his life. He was arrested in Louisville, Kentucky, on March 3, 1988. As he has alleged insufficiency of the evidence in his first proposition, the evidence will be discussed in more detail below.

I. ISSUES RELATING TO JURY SELECTION/PRE-TRIAL

A.

In his eighth proposition of error, Appellant contends this Court must reverse his conviction because the trial court erred in failing to grant a change of venue. The issue is not properly before this Court, as Appellant failed to comply with 22 O.S.1981, § 561, which requires a motion for change of venue to be accompanied by three affidavits. It is thus waived, Shultz v. State, 811 P.2d 1322, 1329 (Okl.Cr.1991); Stafford v. State, 669 P.2d 285, 290 (Okl.Cr.1983), vacated and remanded on other grounds, 467 U.S. 1212, 104 S.Ct. 2652, 81 L.Ed.2d 359 (1984).

Furthermore, we find no fundamental error. Appellant claims this Court has adopted a "virtual impossibility test" which makes a change of venue very difficult to achieve. We have held that before relief can be granted, an appellant must show by clear and convincing evidence that a fair trial was "virtually impossible" at the venue where it was held. See Brecheen v. State, 732 P.2d 889, 893 (Okl.Cr.1987). After reviewing past caselaw, we agree the words "virtually impossible" are inappropriate, but do not feel it affects his case.

The words "virtual impossibility" seem to first surface in Thomsen v. State, 582 P.2d 829 (Okl.Cr.1978). A reading of that case reveals the word "impossible" comes first from the assertions of that appellant that it was "impossible to empanel a jury which did not have a fixed opinion concerning this case." Thomsen, 582 P.2d at 832. This Court responded in kind:

This Court has held previously that a change of venue on the ground that a fair trial cannot be had in the district where the actions is pending is warranted only where it is shown that the inhabitants of the district are so prejudiced that a fair and impartial trial for the defendant in that district would be impossible.

Id. The case cites Mooney v. State, 273 P.2d 768 (Okl.Cr.1954) and Wininegar v. State, 97 Okl.Cr. 64, 257 P.2d 526 (1953) in support of its language. However, the word "impossible" is not found in either of those cases. We believe the more traditional and most accurate statement of the law is found in Wininegar, where this Court held

On application for a change of venue, the affidavit of the defendant in support thereof must not only aver "that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein," but it must also set forth the facts rendering a fair and impartial trial there improbable.

Id. at 68, 257 P.2d at 531 (quoting Starr v. State, 5 Okl.Cr. 440, 115 P. 356 (1911)). This is the correct test. Thomsen and other cases using the wording "virtual impossibility" are hereby overruled to the extent they conflict with the "improbable" wording found in Wininegar and Starr.

We still believe there is a rebuttable presumption an accused can receive a fair trial in the county where the offense occurred. Shultz, 811 P.2d at 1329. Appellant does not contest the standard by which this evidence must be proved, and we believe our earlier holdings are correct that the burden of persuasion still lies with the accused to present evidence that shows by clear and convincing evidence, Brecheen, 732 P.2d at 893, "that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein." The appellant in doing so must set forth the facts "rendering a fair and impartial trial there improbable." Wininegar, 97 Okl.Cr. at 68, 257 P.2d at 531.

Here, the record contains nothing to show such a prejudice, nor does it show a pervasiveness of the media in the proceedings which may give rise to a presumption of prejudice. See Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). A transcript of the voir dire shows some members of the panel had read articles about the murder in the Chickasha newspaper; but nothing shows that anyone on the jury was so influenced by the articles he or she could not render Appellant a fair and impartial trial. There is no fundamental error present here, and this proposition is without merit.

B.

Appellant complains in his seventh proposition of error the court erred in not excusing a prospective juror for cause. The juror, Allen Huffines, was a client of Mike Bradford, a barber who testified in the sentencing stage of Appellant's trial. Appellant claims the prospective juror should have been excused for cause, as he had talked with Bradford about an incident in the beauty shop during which Appellant brandished a weapon and shot an empty chair. The evidence was used to support the continuing threat allegation, and is discussed more fully below.

When asked whether Mr. Bradford had related the incident to him, Mr. Huffines said "He just--I really don't remember. Seemed like he said something about it." When asked further whether he had a conversation with the barber, Mr. Huffines said "I really don't remember. I remember what was in the paper more than anything." When asked if Mr. Bradford had been present during the incident, he replied: "Yes. I think that's what the newspaper said" (Tr. 56). He added Mr. Bradford "really didn't say much about it," adding it would not affect his consideration in the case at all (Tr. 57). He also said he would not give Mr. Bradford's testimony any more weight (Tr. 59).

This Court has held that a court does not abuse its discretion simply because a juror may be acquainted with a witness if the juror says it would not affect his ability to be impartial. Bass v. State, 733 P.2d 1340, 1341 (Okl.Cr.1987). Nor is it an abuse of discretion to leave on a juror who has read something about the incident in question, so long as the juror can put that information aside and act fairly and impartially on the matter submitted to him. 22 O.S.1981, § 662; see also Nauni v. State, 670 P.2d 126, 130 (Okl.Cr.1983). We see no merit to this proposition.

C.

In his nineteenth proposition of error, Appellant urges reversal of his conviction because the method of venire panel selection systematically excludes as jurors those who choose not to obtain driver's licenses, and provides those over 70 years of age have the option of declining jury service. We find no merit to this proposition.

We previously addressed the complaint arising from the ability of citizens over 70 years of age to decline to serve if they so desire, and see no need to revisit that. Fox v. State, 779 P.2d 562, 566 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990); Moore v. State, 736 P.2d 161, 165 (Okl.Cr.1987), cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987).

Concerning the complaint arising from the selection of those with driver's licenses, we continue to adhere to the test enunciated in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), that to show a prima facie violation of the fair cross-section requirement, an appellant must show (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in venires is not fair and reasonable in relation to the number of such persons in the community; (3) this underrepresentation is caused by systematic exclusion of that group in the jury selection process.

The...