Browning v. State

Decision Date24 April 2006
Docket NumberNo. D-2003-363.,D-2003-363.
Citation134 P.3d 816,2006 OK CR 8
PartiesMichael Allen BROWNING, Appellant v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Robert J. Stubblefield, Tulsa, OK, Attorney for Defendant at trial.

Doug E. Drummond, Steve Kunzweiler, Assistant District Attorneys, Tulsa, OK, Attorneys for the State at trial.

William H. Luker, Jamie D. Pybas, Division Chief, Capital Direct Appeals Division, Oklahoma Indigent Defense System, Norman, OK, Attorneys for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Preston Saul Draper, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

CHAPEL, Presiding Judge.

¶ 1 Michael Allen Browning was tried by jury and convicted of Counts I and II, Murder in the First Degree in violation of 21 O.S.2001, § 701.7; Count III, Shooting with Intent to Kill in violation of 21 O.S.2001, § 652(A); Count IV, Arson in the First Degree in violation of 21 O.S.2001, § 1401; and Count V Robbery with Firearms in violation of 21 O.S.2001, § 801, in the District Court of Tulsa County, Case No. CF-01-1098. In accordance with the jury's recommendation the Honorable Rebecca Brett Nightingale sentenced Browning to two sentences of death on Counts I and II; life imprisonment (Count III); thirty-five (35) years imprisonment and a $25,000 fine (Count IV); and life imprisonment (Count V). In Counts I and II the jury found the murders posed a great risk of death to another person and were especially, heinous, atrocious and cruel. Browning appeals from these convictions and sentences and raises fourteen propositions of error in support of his appeal.

¶ 2 Browning met Cenessa Tackett in 1995 (when she was sixteen years old and he was twenty-one) and the two were romantically involved for about four years. Cenessa had learning disabilities and graduated from high school when she was twenty, continuing to live with her adoptive parents, Harry and Teresa Hye. Browning lived with Cenessa, Harry and Teresa for about a year. The two broke up, but continued to see one another in 2000. In August, 2000, Browning visited Cenessa at home; they had intercourse and she became pregnant. Browning was living with another woman at the time. In January, 2001, Cenessa told Browning she was pregnant with his child and wanted child support. Browning admitted it could be his child but refused to pay support. Browning did agree to take a paternity test after the child's birth. Teresa heard part of this conversation. Later in January or early February, Teresa contacted Browning's parents about the baby.

¶ 3 Shortly before 3:00 a.m. on February 18, 2001, Browning knocked on the Hyes' door. Cenessa, who was up watching television, answered. Browning asked her to come to a breezeway door the family often used. When she did, he and Shane Pethel came in. Cenessa did not know Pethel, but Teresa had met him. After some small talk Teresa and Pethel went outside to smoke a cigarette, leaving Browning alone with Cenessa. Teresa came in, followed by Pethel, who was carrying a pistol. Browning and Pethel ordered the women to sit on the couch. Pethel kept the gun pointed at them while Browning taped their mouths, wrists, and ankles (atop their pants) with duct tape. Browning told Cenessa that she should have kept her legs closed, and told Teresa she should not have called his parents. He also told both women that he didn't want to do this, but he had to. Browning and Pethel fetched Harry from his bedroom, ordered him to sit beside the women, and taped his mouth, wrists, and ankles. While the taped victims watched, Browning and Pethel carried valuables from the Hyes' bedroom outside. At one point Harry tried to move but Teresa, whose tape gag was loosened by tears, told him to stop because Browning had said he wouldn't hurt them. After several trips outside, Browning and Pethel carried all three victims into the Hyes' walk-in closet, which smelled of lighter fluid. Browning tried without success to set the carpet next to Harry on fire. Browning then lit the clothing hanging above Harry, which began to burn. Pethel asked Browning whether he should shoot Cenessa in the stomach, and Browning told Pethel to do what he had to do. At some point during the shooting Browning left the house. Pethel said "It's time", then shot Harry in the head. As Teresa screamed and tried to reach Harry, Pethel told her, "Shut the fuck up", and shot her twice. When Teresa fell, Cenessa fell over as if she had been hit. Pethel finally shot Cenessa and left the burning closet. Cenessa's neck was grazed and she had a through-and-through wound to her neck very near the carotid artery. She wriggled free from her taped sweat pants, leaving them by the closet door, ran for a phone, and ran outside. As she called 911, the phone died and she threw it by the breezeway door. She went back in, found a cell phone, and made a second emergency call. At some point she got a set of keys, hoping to drive Harry's truck for help, but had the wrong keys and dropped them by the truck. Cenessa returned again to the burning house, got a blanket and wet it at an outside hydrant, and went back in to find her parents. Harry had crawled to the closet door. She pulled him as far as the dining room before, overcome with smoke, she had to leave the house.

¶ 4 Law enforcement and emergency personnel arrived and rescued Harry, who was shot and suffering second- and third-degree burns. He was conscious briefly at the scene and complained of pain. Officers could not return to the house for Teresa, and her body was recovered from the closet later that day. She had one gunshot wound to the neck and one to the chest, both potentially fatal, and no soot was present in her airway. The medical examiner concluded that Teresa died of gunshot wounds. Harry was hospitalized, underwent surgery for his head wound and skin grafts for his burns, and died on March 12. Cenessa was hospitalized briefly. At the scene and afterwards, she consistently told law enforcement and emergency personnel that Browning had done this, and she testified against Browning at trial. Cenessa had a baby boy on April 13, 2001. Browning never took a paternity test.

Pretrial Issues

¶ 5 In Proposition VI Browning claims that the trial court erred in admitting into evidence photographs of duct tape and cigarette lighter fluid found at his residence. He argues that the facts alleged in the affidavit supporting the search of the house did not set forth probable cause to show that these items were at that location. At trial, Browning objected and asked that this evidence be suppressed based on lack of probable cause for search in the affidavit. While this is imprecise, it arguably preserves this claim of error. The standard of review for this claim is whether, under the totality of the circumstances, a magistrate can make a "practical, common sense decision" there is a fair probability that evidence or contraband will be found at a particular place.1 Upon review, we ensure that the magistrate had a substantial basis for finding probable cause.2 An affidavit in support of a search warrant must include a particular description of the place, person or things to be searched.3 We will defer to the magistrate's determination of probable cause based on the affidavit.4

¶ 6 Browning complains that the affidavit in support of the warrant neither connected him with the crime, or gives any reason to believe that proceeds from the crime would be at his residence. The affidavit lists, and the search warrant authorizes a search for, guns, the clothing Cenessa said Browning wore, and duct tape, as well as specific items taken from the Hye house. Those items include jewelry, currency, video cameras and guns. The affidavit recounts Cenessa's story and says a neighbor saw Pethel and Browning at the house in Pethel's truck shortly before the crimes. The affidavit further states that the affiant trying to contact Browning looked through his front window and saw a video camera, tripod and guns similar to those stolen. Browning admits this Court has often held that a natural place to look for evidence of a crime is the residence of the person accused of the crime.5 Browning suggests this rule should not apply here, as there were two perpetrators and, thus, two potential residences to be searched. Understandably, Browning cites no cases for his argument that, where there are two suspects, law enforcement cannot act on the logical assumption that either residence might have been used to conceal contraband.6 The affidavit in this case refers exclusively to Browning's home. After listing details of the crimes and Browning's participation in it, the affiant states that, the day after the crimes, he saw items which appeared to be stolen from the Hye residence through Browning's window. This information constitutes a substantial basis for the magistrate's finding of probable cause. This proposition is denied.

Issues Relating to Jury Selection

¶ 7 In Proposition I Browning claims that the trial court abused its discretion in failing to either grant a mistrial or remove for cause a juror who was inappropriately contacted by a member of Teresa Hye's family. On the fourth day of voir dire, Juror Ridgeway joined the jury panel. Proceedings resumed after a day's break, during which time Ridgeway went to work. When asked about jury duty, she replied that it was a murder trial and she couldn't talk about it. Later that afternoon she received an internal phone call from someone who apparently worked in the same building and was on the company phone system....

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