Cipriano v. State

• Decision Date: 04 September 2001
• Docket Number: No. F-2000-890.,F-2000-890.
• Citation: 2001 OK CR 25,32 P.3d 869
• Parties: Michael Joseph CIPRIANO, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

32 P.3d 869

2001 OK CR 25

Michael Joseph CIPRIANO, v. STATE of Oklahoma, Appellee.

No. F-2000-890.

Court of Criminal Appeals of Oklahoma.

September 4, 2001.

Rehearing Denied October 11, 2001.

R. Scott Adams, Oklahoma City, OK, Counsel for Appellant.

Robert Macy, District Attorney, Marc Pate, Elizabeth Sharrock, Assistant District Attorneys, W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Assistant Attorney General, Oklahoma City, OK, Counsel for the State.

OPINION

LUMPKIN, Presiding Judge:

¶ 1 Appellant Michael Joseph Cipriano was tried by jury and convicted of First Degree Murder (21 O.S.1991, § 701.7), Case No. CF-98-4511, in the District Court of Oklahoma County. The jury recommended as punishment life imprisonment without the possibility of parole and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

¶ 2 Appellant was convicted of shooting to death fifteen (15) year old Candace Kerschner. On July 17, 1998, the deceased, along with her younger brother and sister, was visiting at her grandparent's home in Edmond. Behind the grandparents' home was a portable building referred to as the "dollhouse." The building contained dolls and toys and was large enough for the grandchildren to play and sleep in when they visited. That afternoon, Mrs. Kerschner, the deceased's grandmother, and her visiting grandchildren, including the deceased, cleaned the carpet in the dollhouse and changed the clothes on the dolls.

¶ 3 Later that evening, the family sat down to watch a movie. The deceased was excited because her boyfriend, Appellant, was coming to see her. When Appellant arrived, he joined the family in watching the movie. At approximately 10:30 p.m., the movie ended and the deceased's grandfather told everyone it was time for bed and that Appellant should be going home. The deceased told her grandmother she wanted to walk Appellant out by herself because she wanted to kiss him. The deceased also told her grandmother she was going to the dollhouse to finish recording a CD and it would probably take her fifteen minutes. Mrs. Kerschner told the deceased not to take any longer.

¶ 4 Approximately 15 to 20 minutes later, Mrs. Kerschner sent the other grandchildren to the dollhouse to get the deceased. The children came back in the house screaming "Michael beat up on Candace." Mrs. Kerschner ran to the dollhouse and found the deceased lying on her stomach on the daybed. Mrs. Kerschner turned the deceased over and saw marks and blood on her face. She ran back to the main house to call 9-1-1. Before she could return to the dollhouse, a police officer was on the scene. Emergency medical personnel arrived shortly thereafter. The deceased was pronounced dead at the scene.

¶ 5 Investigating officers observed the deceased lying on the floor. She had suffered one gunshot wound to the back of her head. Also observed was an exit wound on her forehead, slightly higher than the entrance wound. No other trauma to the body was found. A pool of blood was found on the east end of the daybed. The blood trickled off the bed and pooled on the floor near the deceased. A dent or deviation was found in the east side railing of the daybed and a bullet fragment lying on the dress of a doll sitting approximately 6 to 8 inches directly in front of the railing. A pillow containing blood and powder burns was found on the floor near the deceased. There were no signs of any struggle in the dollhouse and no signs of any weapons.

¶ 6 Upon leaving the "dollhouse," Appellant rode his bicycle to the home of Michelle Mayfield where his friend, Jason Hulsebus was staying. Hulsebus testified at trial that Appellant acted like he was running from someone. Hulsebus said that he and Appellant went into the bathroom to talk privately. Appellant told Hulsebus "I did it, I did it ... I shot her." When Hulsebus asked who she was, Appellant replied "[m]y girlfriend." Hulsebus testified that Appellant calmed down enough to tell him that he and the deceased had an argument, that the deceased had a "knife or something like that," and after getting the "knife" away from her, he shot her.

¶ 7 Appellant and Hulsebus left the bathroom intending to tell Mayfield what had happened. Initially, Appellant said he had been in a fight with three guys. Upon hearing sirens, Mayfield pressed for more information. Appellant then told her he had gone over to his girlfriend's house and a fight ensued. Appellant said his girlfriend screamed at him, and hit and slapped him. He said he told her to stop, but when she refused, he shot her. As he told his story to Mayfield, details changed. At one point, he said he took the gun with him because he might need it for his own protection. At another point, Appellant said he did not initially take the gun with him, but after the argument with the deceased began, he rode home, retrieved his father's gun, and went back and shot the deceased. Appellant also told Mayfield he had put a pillow over the deceased's head so no one would hear the gunshot. Appellant consistently stated he had "messed up" his life.

¶ 8 Mayfield asked Appellant if he wanted to call his father. Appellant said he would rather turn himself into the police. So Mayfield drove Appellant to the police station. Finding no one at the police station, she drove to a nearby pay phone. Appellant asked Mayfield to call the police because he did not know what to say. Mayfield called 9-1-1 and waited with Appellant until the police arrived a few moments later.

¶ 9 Appellant was fifteen (15) years old at the time of the offense. A reverse certification hearing was held on March 2, 1999, and Appellant's motions for certification as a youthful offender or juvenile were denied.

¶ 10 Appellant testified in his own defense at trial. He stated the deceased had called him July 17, 1998, stating that her father wanted to talk with him. Appellant said he was afraid of the deceased's father, and that her father had threatened him in the past. Despite his fear, Appellant said he went to see the deceased, but he took a gun with him. Appellant said he did not see the deceased's father that evening but was continually on the lookout for him. He explained that he and the deceased went to the dollhouse where an argument ensued. He said the deceased started hitting him and threw a pillow at him. He grabbed the pillow and held it with his left hand. Appellant said the deceased then went to the daybed and pulled out what he thought was a knife, although later he found out it was a piece of glass. Appellant said the deceased came at him with the piece of glass. He said he took out the gun with his right hand, thinking that if she saw the gun she would stop. She didn't stop, but swung at him. When she swung she turned. Appellant pushed her and they both fell. He explained that "somewhere in between the pushing and the fall to the bed" the gun went off. Appellant said he still had hold of the pillow. Appellant said he jumped up, took the piece of glass out of the deceased's hand, and ran out of the door.

¶ 11 Appellant testified he was scared when he left but he did not know that the deceased was hurt or that she had been shot in the back of the head. He testified that at the time, he did not know the gun had fired because his ears were ringing. Appellant testified he rode his bicycle through some alleyways and threw the gun into a trash dumpster behind a restaurant. Despite repeated thorough searches by the investigating officers no gun, knife or glass shard was ever found.

¶ 12 In addition to Appellant's testimony, the defense presented the testimony of Tom Bevel, an expert in bloodstain pattern analysis. Bevel testified that in his opinion the gun was not in contact with the pillow when fired but was from one to three inches away from the pillow. He opined that there would have been a smaller ring of gunpowder residue on the pillow if the gun had been pressed into the pillow while it was fired. Bevel also testified it would have been possible for two individuals to fall to the bed and the gun accidentally discharge. On cross-examination, he testified that the accidental discharge theory was not the only possible explanation for the sequence of events in this case.

¶ 13 In his first assignment of error, Appellant contends the trial court failed to properly instruct the jury. Appellant offered written requested instructions on the lesser included offenses of first degree misdemeanor-manslaughter, i.e., a death caused during the commission of the misdemeanor offense of reckless conduct with a firearm; and second degree manslaughter, i.e., that the death occurred as a result of Appellant's culpable negligence in handling the firearm. Appellant also requested an instruction on the defense of excusable homicide. The trial court rejected these instructions, concluding the theory of first degree manslaughter by use of a dangerous weapon was more appropriate given the evidence presented at trial. Defense counsel objected to the giving of the first degree manslaughter instruction in exclusion of other instructions which he opined more closely followed his theory of defense. The objection was overruled and the court issued instructions on first degree murder and first degree manslaughter. Based upon this record, the issue has properly been preserved for appellate review.

¶ 14 The determination of which instructions shall be given to the jury is a matter within the discretion of the trial court. Patton v. State, 973 P.2d 270, 288 (Okl.Cr. 1998), cert. denied, 528 U.S. 939, 120 S.Ct. 347, 145 L.Ed.2d 271 (1999). Absent an abuse of that discretion, this Court will not interfere with the trial court's judgment if the instructions as a whole, accurately state the applicable law. Id. "[A]ll lesser forms of homicide are necessarily included and instructions on lesser forms of homicide should be administered if they are supported by the...