Chaney v. State

Decision Date15 May 1980
Docket NumberNo. F-77-699,F-77-699
Citation1980 OK CR 37,612 P.2d 269
PartiesLarry Leon CHANEY, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

BRETT, Judge:

Larry Leon Chaney, hereinafter to be called the defendant, was convicted of Murder in the First Degree 21 O.S.Supp.1979, § 701.7 in the District Court, Tulsa County, in Case No. CRF-77-756. After a hearing on the aggravating and mitigating circumstances of the case, the jury voted to impose the death penalty.

The victim was Mrs. Kendal Inez Ashmore, an authority on Morgan horses. On March 17, 1977, Mrs. Ashmore and her assistant, Ms. Kathy Brown, went to meet a man neither of them knew, who had expressed an interest in Morgan horses. They were never seen alive again. On March 22, their bodies were found buried on the defendant's property in Sequoyah County, Oklahoma. Although the defendant was charged with both deaths, the murder of Mrs. Ashmore was tried first. The trial on the murder of Ms. Brown is still pending.

In his first and seventeenth assignments of error, the defendant complains that a prospective juror was excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon, the Supreme Court held that persons cannot be excused from jury service for cause just because they are opposed to the death penalty. They can be excused for cause if their views are so strong that they would refuse to return a verdict of guilty, where it was justified, because the defendant could be sentenced to death. Prospective jurors can also be excused for cause if they have decided in advance that they will not vote to impose the death penalty, regardless of the circumstances. However, the questioning in this area during voir dire cannot be too specific:

". . . The most that can be demanded of a venireman . . . is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. . . ." (Emphasis original) Witherspoon v. Illinois, 391 U.S. 510, n. 21, 88 S.Ct. 1770, n. 21.

In the instant case, we believe that it was proper to excuse the juror. The defendant's attorney and the State's attorney questioned the woman; and both sides point to answers given by her, which they say support their respective arguments. But one of the tendencies of voir dire in a challenge situation is that the longer it lasts the less objective it becomes, as both parties attempt to phrase their questions in such a way as to elicit the desired answers. We are most impressed by the answers the prospective juror gave to the first questions asked by the trial court:

"THE COURT: I'll ask you the same question I asked the other jurors. In a case where the law and evidence warrant, in a proper case, could you without doing violence to your conscience agree to a verdict imposing the death penalty?

"MS. FETERLY: No, sir, I don't believe I could.

"THE COURT: If you found beyond a reasonable doubt that the defendant was guilty of murder in the first degree, and if under the evidence and circumstances it would permit you to consider a sentence of death, are your reservations of the death penalty, regardless of the law and facts and circumstances of the case, such that you could not inflict the death penalty?

"MS. FETERLY: No, sir, I don't think I could.

"THE COURT: Did you hear my question: Are your reservations about the death penalty such that regardless of the law and facts and circumstances of the case you would not inflict the death penalty?

"MS. FETERLY: Yes, sir. I understand. I could not."

The defendant also argues from Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), that the exclusion of this juror denied the defendant a jury which represented a cross-section of the community. But this argument is without foundation. Taylor involved the exclusion of all women from jury service, while in the present case only one prospective juror was excused on the Witherspoon issue, and we find that this was valid.

In his second assignment of error the defendant objects to the introduction into evidence of soil samples extracted from four locations on his property near Sallisaw, Oklahoma. But the defendant not only failed to object to the introduction of the evidence at the trial, he also failed to cite any authority to support his argument in this Court. Both of these lapses constitute failure to properly set the issue before the Court. Roberts v. State, Okl.Cr., 568 P.2d 336 (1977), and Robertson v. State, Okl.Cr., 562 P.2d 880 (1977). We therefore do not reach the merits of this issue.

The fourth assignment of error is concerned with the trial court's denial of the defendant's motion for a change of venue. Such motions are directed to the trial court's sound discretion Andrews v. State, Okl.Cr., 555 P.2d 1079 (1976) and we do not find any abuse of that discretion in this case. The record makes clear that the judge was sensitive to the publicity problem: Although he denied the defendant's motion, he said that he would reconsider it if jury selection became difficult. But no juror expressed any preconceptions as to the defendant's guilt, and the defendant was given wide latitude during the voir dire. Compare Hammons v. State, Okl.Cr., 560 P.2d 1024 (1977).

The fifth assignment of error points to statements made by the prosecutors during closing argument statements which the defendant says were intended to be emotional arguments instead of comments on the evidence. While the remarks were unnecessary, they were not so grossly improper as to affect the jury's verdict. The evidence herein, even though circumstantial, was conclusive. See Beeks v. State, Okl.Cr., 563 P.2d 653 (1977).

We see no merit to the defendant's contention that the prosecuting attorney commented on the defendant's failure to take the stand. The judge instructed the jury that it should consider whether the aggravating circumstances in the case, if any, were offset by any mitigating circumstances, and he gave them a list of mitigating circumstances as examples. One of these was the age of the defendant. During closing argument, the prosecutor said he had heard no evidence of the defendant's age, and this is the comment which the defendant challenges. This is not a comment on the defendant's failure to testify because there are many ways to prove one's age besides personal testimony.

The sixth assignment of error is an umbrella-type argument challenging the introduction of several pieces of evidence. The first item is the introduction of photographs of the defendant's Chevrolet Corvette. However, the fact that a Corvette similar to the defendant's was seen in the area of the ransom money drop site could circumstantially imply that the defendant's Corvette was the vehicle observed. Because the defendant was charged with felony-murder as well as with malice aforethought murder, this evidence was relevant to connect the defendant to the kidnapping.

The next item under this assignment is the introduction of two groups of photographs of the grave scene State's Exhibits 44 through 61, and 104 and 105. The defendant also challenges State's Exhibit No. 71, a slide of the calf and ankle of Kendal Ashmore's leg taken during the autopsy. We have viewed the photographs in question and their introduction was not counter to our holding in Oxendine v. State, Okl.Cr., 335 P.2d 940 (1958). In Oxendine we imposed a balancing test on the introduction of photographs, which because of their subject matter, carry a danger of prejudice. Such evidence is inadmissible unless the possibility of prejudice is outweighed by the probative value. This is, of course, nothing more than the common judicial determination of relevancy. McCormick, Evidence, 438-441 (2nd Ed. 1972). And see 12 O.S.Supp.1979, § 2403.

With the exception of State's Exhibit No. 71, all of the photographs before us were taken during the exhumation of the bodies of Mrs. Ashmore and Ms. Brown, beginning with the pile of brush covering the gravesite and ending with the photograph of Mrs. Ashmore. These photographs allowed the jury to see the manner in which the victims had been bound and the way in which they were killed, as well as the attempt that had been made to conceal the grave. The pictures are not offensive, and their admission was proper. (Exhibits 104 and 105 were photographs of Ms. Brown's body, which makes them pertinent to the ninth assignment of error; but as far as this sixth assignment of error is concerned the exhibits were not objectionable.)

The admission of State's Exhibit No. 71 was also proper. A fact in contention was the time of Mrs. Ashmore's death in relation to the time of the kidnapping, and the defendant, hoping to disprove the State Medical Examiner's estimation of the time of death, put in issue the length of the hair on Mrs. Ashmore's legs. The State then introduced its photograph of Mrs. Ashmore's calf and ankle so that the jury could decide the issue for itself. Because the defendant invited the introduction of this exhibit by placing the matter in issue and because the picture is not gruesome, the trial court did not abuse its discretion in allowing the slide to be shown to the jury.

State's Exhibits 1 and 3, tape recordings of the ransom demand telephone calls made to Mr. Ashmore, were admitted into evidence and...

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