Castro v. State

• Decision Date: 28 August 1987
• Docket Number: No. F-84-378,F-84-378
• Citation: 745 P.2d 394
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: John W. CASTRO, Sr., Appellant, v. The STATE of Oklahoma, Appellee.

Page 394

745 P.2d 394

John W. CASTRO, Sr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F-84-378.

Court of Criminal Appeals of Oklahoma.

Aug. 28, 1987.

As Corrected Oct. 6, 1987.

Rehearing Denied Nov. 24, 1987.

Thomas Purcell, Asst. Appellate Public Defender, Norman, for appellant.

Robert Henry, Atty. Gen., Terry J. Jenks, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

John Walter Castro, Sr., the appellant, was convicted of Robbery With Firearms (21 O.S.Supp.1982, § 801), and First Degree Felony-Murder in the commission of Robbery With A Dangerous Weapon (21 O.S.1981, § 701.7(B)). Appellant was tried by jury in Kay County District Court, Case No. CRF-83-130, before the Honorable Roger Mullins. The jury recommended a sentence of life imprisonment for robbery, and a sentence of death for felony-murder. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm the sentence of death for felony-murder, and vacate and remand the judgment and sentence for robbery with firearms.

On June 6, 1983, during the early afternoon, the appellant entered a fast-food restaurant called Hobo-T's located in Ponca City, and pointed a .25 semi-automatic pistol at the sole employee-manager, Rhonda Pappan. At some point, while the appellant was going through Pappan's purse, a money bag, and the cash register, Pappan allegedly obtained a knife and, following a struggle, the appellant stabbed her to death. Appellant was not injured during the struggle, and he escaped with an undetermined amount of money estimated at over $200.00. A knife was discovered under the victim's body. An autopsy revealed that Mrs. Pappan died from multiple stab wounds to the neck, back, and chest.

Police investigation of the crime resulted in the apprehension of the appellant on the night of June 6, 1983. After the appellant signed a consent to search form, officers seized several items following a search of the appellant's home, including several pairs of jeans, a baseball cap, and a Titan .25 semi-automatic pistol, all with blood stains which could not be typed. A hair found on a blood-stained man's sportshirt found at the scene was consistent with the appellant's hair. After the search, appellant voluntarily accompanied the officers to the police station for questioning. After the appellant was read his Miranda rights, and signed a form acknowledging that he understood those rights, he told officers that he had never been at a restaurant called Hobo-T's. Appellant then changed his story, claiming that when he had entered the restaurant he saw the victim lying in a pool of blood on the floor. He said he became frightened because he was carrying a gun, that as he started to leave he slipped and fell in the blood and because of that, he took his shirt off and threw it down. In his third statement, appellant said that he entered Hobo-T's with an unloaded Titan .25 semi-automatic pistol, intending to commit a robbery, and that he stabbed Pappan to death after she pulled a knife on him while he was removing money from the cash register.

Appellant presented no witnesses in his defense during the first stage of the trial. At the second stage of trial, the State alleged the existence of two aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel; and (2) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. See 21 O.S. 1981, § 701.12(4) & (7). The State produced evidence that the appellant had escaped from the Kay County jail when he was let out by two other prisoners who overpowered the guards on August 28, 1983, and that he had confessed to committing a prior murder in Stillwater, and two prior armed robberies in Ponca City. Appellent testified that he was twenty-three years old, and that the third statement he gave to police was accurate, although he was unaware of what occurred after the struggle started. Appellant admitted escaping, and robbing two Ponca City stores, but said that he did not harm any employees. He admitted killing Ms. Beulah Cox in Stillwater and Ms. Rhonda Pappan in Ponca City, but he did not know why. He said that he thought there was something wrong with his mind. Appellant testified concerning his troubled youth, including being raised by his poor grandparents, finding out that his mother was a prostitute, being seduced by his mother, and witnessing his brother bludgeon his father to death. The appellant expressed remorse for the killings, and said "I think I deserve to die." Laura Tucker, appellant's aunt, testified extensively concerning the appellant's troubled childhood, his experience with the police during his youth, his placement in state institutions, the stress he was under because his family refused to accept his wife, and stated that the appellant had served in the armed forces. The jury found the existence of both aggravating circumstances.

I.

PRE-TRIAL ISSUES

A.

In his third assignment of error, the appellant asserts that the trial court erred in refusing to provide funds for a psychiatrist. ¹ In a pretrial motion hearing, defense counsel stated that he had "employed Dr. [William] Hamilton ... to provide a psychiatric evaluation" of the appellant, and that Dr. Hamilton "certainly should be paid a reasonable fee in this case for the work that he has done." (Mot.Tr. Dec. 14, 1983, at 9-11) (emphasis added).

The foregoing indicates that appellant actually had access to a psychiatrist in spite of his indigency, and that his request for funds was to cover a past examination. In addition, the appellant was examined at Eastern State Hospital in Vinita and found competent to stand trial and able to assist in his defense. Both psychological examinations concluded that the appellant was "in touch with reality." Pre-Sentence Investigation Report, at 8.

Moreover, the record reveals that appellant wholly failed to make an ex parte preliminary showing to the trial judge that his sanity at the time of the offense was likely to be a significant factor at trial as required by Ake v. Oklahoma, 470 U.S. 68, 82-83, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985). Mere undeveloped assertions that psychiatric assistance would be beneficial is insufficient to meet the preliminary showing requirement in Ake. At a minimum, Ake requires that the defendant's allegations be undergirded with evidentiary support and particularized facts demonstrating that the defendant's sanity at the time of the offense is seriously in question. See Caldwell v. Mississippi, 472 U.S. 320, 323-24 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985); Cartwright v. Maynard, 802 F.2d 1203, 1211-12 (10th Cir.1986). The State did not introduce any psychiatric evidence against the appellant. We find that the trial court did not err in refusing to provide funds for a psychiatrist, since the appellant failed to make the preliminary showing required by Ake, ² and the record shows that appellant in fact had access to a competent psychiatrist.

B.

Next, we address appellant's related argument that the holding in Ake guarantees a defendant the right to put on a defense, including funds necessary to investigate and produce the testimony of lay witnesses. In a pretrial motion hearing, defense counsel requested "expense money in order to continue the interview of witnesses and the preparation for trial." Counsel for appellant explained that witnesses familiar with the appellant's background were located in Oklahoma City and Red Rock, and that funds were needed for travelling and interviewing expenses. Appellant has failed to cite any relevant authority to support his assertion, except for the Ake decision. In Standridge v. State, 701 P.2d 761, 764 (Okl.Cr.1985), this Court left open the question of whether the Ake holding extended to assistance "other than a psychiatric expert."

Counsel was entitled to seek reimbursement for extraordinary and additional expenses incurred in the representation of his indigent client upon a showing by clear and convincing evidence that he was unable to maintain his law practice, and that such extraordinary actions were necessary, reasonable, and taken in good faith. See Bias v. State, 568 P.2d 1269, 1272-73 (Okla.1977). We cannot agree that bald assertions of need alone are sufficient to warrant an award of public funds, especially where counsel failed to show that personal contact was the only way to obtain the information desired, as opposed to such alternate methods as mail, telephone or subpoena. See Johnson v. State, 731 P.2d 993, 1007 (Okl.Cr.1987). Because appellant has failed to show that the foregoing alternatives were inadequate to afford him the basic tools of his defense within the meaning of Ake, and because he has failed to demonstrate that he was denied access to favorable evidence which was material to guilt or punishment, he has failed to show prejudice sufficient to undermine confidence in the outcome of his trial. See United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985). This assignment is meritless.

II.

ISSUES RELATING TO JURY SELECTION

A.

In his first assignment of error, appellant urges that prospective juror Atteberry was improperly excused for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). In Walker v. State, 723 P.2d 273, 281 (Okl.Cr.1986) cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986), this Court held that the standard of Witherspoon was superceded by the current Wainwright v. Witt test of whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. See Wainwright v. Witt, 469 U.S. at 423-24, 105 S.Ct. at 852.

In applying the foregoing standard to this case, we note that the following...