Burrows v. State
| Decision Date | 20 January 1982 |
| Docket Number | No. F-78-40,F-78-40 |
| Citation | 1982 OK CR 6,640 P.2d 533 |
| Parties | William R. BURROWS, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
William R. Burrows, was charged, tried and convicted for the offense of Murder in the First Degree, in the District Court of Oklahoma County, Case No. CRF-77-2769, and was sentenced to death.
On August 1, 1977, William R. Burrows and his spouse were engaged in a domestic dispute arising out of the defendant's drinking problem. When she threatened to leave him and take their eighteen (18) month old son with her, Burrows, according to his confession, seized a .25 caliber Browning semi-automatic pistol, and shot her in their bedroom. He continued to shoot her until she collapsed in the hallway. He then called an ambulance and attended his stricken spouse until she died. Thereafter, Burrows notified his spouse's parents of the incident and requested that they come to Oklahoma City to take care of their grandson. In a second conversation he engaged in a heated argument with his father-in-law.
Additional facts are that:
(1) Police officers investigating the homicide recovered a .25 caliber weapon from the premises, and ballistic reports established that the shots which had been fired into the victim's body had been fired from that weapon.
(2) An autopsy upon the body of Mrs. Burrows established that she was seven and one-half (71/2) months pregnant, and that she had died as a result of gunshot wounds.
(3) The defendant, who had been taken into custody at the scene of the murder gave a detailed confession to police officers after having been fully advised of his constitutional rights.
(4) During the trial, the investigating officers testified that at the scene, when Burrows was questioned, he was "indifferent, like he didn't care what was going on."
(5) A clinical psychologist, Dr. Krimsky, testified that, in his opinion, the defendant did not know right from wrong at the time he shot his wife. On rebuttal, the State introduced the testimony of Dr. Lorraine Schmidt, who testified that she had examined the defendant after the homicide and that, based upon that examination, it was her opinion that the defendant was capable of distinguishing between right and wrong at the time of the homicide.
In his first assignment of error the defendant contends that the court abused its discretion by refusing to accept a negotiated plea agreement, and requests this Court to set aside the Judgment and Sentence and to remand the cause with instructions requiring the imposition of a life sentence of imprisonment.
An agreement was allegedly presented to the presiding criminal judge of the district court and rejected, whereby the defendant would plead guilty to first degree manslaughter, if the State would recommend a life sentence. However, no transcript of the matter has been filed with this Court and the original record contains no motion by the State requesting a reduction of the charge. With no record of the evidence presented by the State or the defendant, if indeed evidence or argument was presented to the presiding judge pursuant to a motion to reduce, this Court cannot infer an abuse of discretion. One who seeks relief from a conviction on appeal has the burden to present sufficient facts to warrant affirmative relief. Shipman v. State, 483 P.2d 761 (Okl.Cr.1971).
Further, immediately before trial, the record reveals the State's position as "ready" to present evidence in support of aggravation if the defendant chose to enter a plea of guilty, thereby leaving intact the charge of aggravated Murder in the First Degree. After some discussion (all of which is not contained in the record) the defendant announced ready for trial, unless he was guaranteed a recommendation of life imprisonment by the prosecutor. At that time, the State made no motion to the court orally, or in writing, that it intended to amend the information or strike the bill of particulars. To the contrary, the State emphatically informed the court that it was ready to proceed to present evidence in support of aggravation if the defendant chose to plead guilty. Since the alleged irregularity has not been adequately preserved for appellate review, such is deemed to be waived.
In his second assignment of error the defendant contends that five (5) jurors were excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and subsequent court decisions, disallowing the imposition of the death penalty when jurors have been excluded for expressing general objections to capital punishment. In the matter at bar, the trial judge did not use exact language from Witherspoon during voir dire. However, it is clear from the questions and answers that the jurors who were excused would not have given proper consideration to the penalties provided by law, and were, under Witherspoon, "irrevocably committed, before the trial (had) begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." 1 We find that the five (5) veniremen were properly excused for cause under the guidelines set forth in Witherspoon v. Illinois, supra.
In his third assignment of error the defendant contends that 22 O.S.1971, § 660, 2 is more restrictive than the Witherspoon rule, in that a venireman can be excused under Oklahoma law only if he or she could not find the defendant guilty as opposed to being unwilling to consider capital punishment. In Chaney v. State, 612 P.2d 269 (Okl.Cr.1980), we addressed a similar argument as the one now before us and stated: "Prospective jurors can ... be excused for cause if they have decided in advance that they will not vote to impose the death penalty, regardless of the circumstances." In accordance with Chaney, supra, this assignment of error is without merit.
The contention advanced by the defendant in his fourth assignment of error is likewise without merit. The questioning during voir dire which he now alleges as error was but one question in a set of questions presented by the district attorney. When the questions and answers during voir dire are considered in context we find no error resulting therefrom. 3
In his next assignment of error the defendant contends that admission of evidence of his deceased wife's pregnancy was error.
We agree with the defendant that the fact that the victim was seven and one-half months pregnant at the time of her death was irrelevant during the first stage of the trial, and his motion to exclude such testimony should have been sustained by the trial court. Combs v. State, 87 Okl.Cr. 283, 197 P.2d 524 (1948). Under the circumstances of this case the prosecutor should not have introduced the issue of pregnancy until the second stage of the proceedings. 4 When incompetent or irrelevant evidence has been received the entire record must be considered to determine if the evidence contributed to the verdict of guilty. In Chaney, supra, the defendant argued that evidence of aggravation was improperly admitted during the first stage of trial, and we determined the same to be harmless and stated that:
Even had the evidence not been admitted, the verdict of guilty unquestionably would have been the same. Modification is not appropriate since it was proper to admit the evidence in the sentencing stage.
Since evidence of a deceased's condition of pregnancy at the time of the homicide has generally not been held grounds for reversal, standing alone, 5 and has even been ruled admissible in some jurisdictions, 6 we do not feel that the introduction of such evidence in the case contributed to the finding of guilt. 7
For the reasons hereinbefore stated, we also hold defendant's next assignment to be without merit. We do hold, however, that the State is estopped from prosecuting the defendant for manslaughter by causing the death of the unborn child. 8 Chaney v. State, supra.
Next, the defendant alleges that it was error for the trial court to allow lay witnesses to testify as to ultimate issues bearing on the defendant's state of mind. 9 The complained of testimony, when carefully examined, does not relate to the defendant's state of mind; rather, it was a description of his behavior and reactions, and as such, it was proper. See, Garcia v. State, 501 P.2d 1128 (Okl.Cr.1972).
As his eighth assignment of error the defendant argues that the trial court erroneously permitted the State, on rebuttal, to introduce evidence that an unfinished needlework doily of Raggedy Ann and Andy was found lying on the bed at the homicide scene, and that the admission of such evidence was highly prejudicial to the defendant. Conceding that the admission of this testimony was not relevant to any issues raised during the trial, and had little, if any, probative value, the defendant has failed to demonstrate that he has suffered any prejudice therefrom. We have consistently held that a defendant must show prejudice to warrant reversal or modification on appeal. See, Frazier v. State, 607 P.2d 709 (Okl.Cr.1980); and, Holder v. State, 556 P.2d 1049 (Okl.Cr.1976). This assignment of error is without merit.
The defendant next contends that the trial court erred in failing to sustain a demurrer to the evidence,...
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