Cleary v. State

• Decision Date: 24 June 1997
• Docket Number: No. F-93-197,F-93-197
• Citation: 942 P.2d 736,1997 OK CR 35
• Parties: 1997 OK CR 35 Norman Richard CLEARY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 736

942 P.2d 736

1997 OK CR 35

Norman Richard CLEARY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-93-197.

Court of Criminal Appeals of Oklahoma.

June 24, 1997.

Rehearing Denied Sept. 11, 1997.

Loretta Jackson, Sid Conway, and Denny Johnson, Assistant public Defenders, Tulsa, Defense Counsel at trial.

Johnie O'Neal, Public Defender, Tulsa, for Appellant on appeal.

David Moss, District Attorney and A.J. Schultz, Assistant District Attorney, Tulsa, Prosecutors at trial.

Susan B. Loving, Attorney General of Oklahoma and A. Diane Blalock, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

LANE, Judge.

Norman Richard Cleary was convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7, and First Degree Burglary After Former Conviction of Two Felonies in violation of 21 O.S.1991, § 1431 in Tulsa County District Court Case No. CF-91-5395, the Honorable B.R. Beasley presiding. Following the sentencing stage of trial the jury found four aggravating circumstances: (1) continuing threat, (2) avoiding arrest or prosecution, (3) prior felony conviction involving violence, and (4) murder committed while serving a term of imprisonment. The jury recommended a sentence of death for the murder and ninety-nine years imprisonment for the burglary. ¹

FACTS

In the early afternoon of December 6, 1991 Norman Richard Cleary, Kenneth "KC" Chandler, and Jack Bell drove around Tulsa in Cleary's truck. Bell was looking for a job; Cleary and Chandler decided to burglarize a home. Bell wanted no part of the burglary and was dropped off at a shopping mall.

Cleary and Chandler drove through Maple Ridge and cased the neighborhood. They knocked on the door of two homes, and when the residents answered from upstairs windows, they asked for the address of a fictitious person. Housekeeper Wanda Neafus answered the door of the third home. The handgun Chandler was carrying slipped out from under his coat, and believing they had been found out, the men pushed open the storm door and came into the house. They took Neafus to the basement where Cleary shot her five times in the face and neck. On their way out, they took Neafus' purse, and a cane with an eagle hand grip from the hall tree.

JURY SELECTION

Five African-American veniremen were in the jury pool. Two were struck for cause without objection: one who could not consider the death penalty, and one who overheard a conversation between the bailiff and an attorney unrelated to the case about the strength of the evidence. Two African-American veniremen were struck by peremptory challenge without objection: one who gave conflicting responses to voir dire, and one who believed his son had been treated unfairly by the District Attorney's staff.

The last African-American venireman stated she had a number of friends and family "in the system," and she was studying criminal justice in order to help them. Citing a "social worker mentality," the prosecutor exercised a peremptory challenge. Defense counsel objected under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Cleary reiterates the Batson challenge in his second proposition of error, arguing the given reason was a mere pretext, for this venireman aligned herself with law enforcement when asked directly.

Under Batson and its progeny, the threshold prima facie case for a discriminatory strike is met by challenging a strike on racial or gender grounds. This is so, for the challenger may "rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate." Id. at 96, 106 S.Ct. at 1723 (citation omitted). The burden then shifts to the striking party to articulate a race-neutral or gender-neutral reason for the strike. The neutral reason should be accepted by the court if it is supported by the We find no reason not to defer to the trial court in this decision for this race-neutral reason is supported by the record. See Neill v. State, 896 P.2d 537, 546 (Okl.Cr.1994)(strike of teacher accepted as race-neutral).

record. A pretextual reason, that is, one not supported by the record, should be rejected. See generally, Id.; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143-44, 114 S.Ct. 1419, 1429, 128 L.Ed.2d 89 (1994); Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992); Powers v. Ohio, 499 U.S. 400, 416, 111 S.Ct. 1364, 1374, 113 L.Ed.2d 411 (1991). On appeal the trial court's finding is to be treated with "great deference." Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21.

FIRST-STAGE EVIDENCE

The first evidentiary issue, raised in the third proposition of error, is whether the State presented sufficient evidence to prove two elements of the crime of burglary, "breaking" and the presence of a human being in the home. See 21 O.S.1991, § 1431. Appellant argues his statement that the storm door was closed and Neafus was in the house when he and Chandler came to the door is not sufficient proof for it is not corroborated.

We find three facts in the record which, when taken together, are corroborating: (1) Neafus was holding a kitchen towel when she was shot; (2) she had swept together a pile of debris at the top of the basement stairs, but had not removed it; and (3) it was her habit to keep a door closed when she worked. The jury could conclude from these facts Cleary and Chandler interrupted Neafus while she was working, and the door was closed. The evidence was sufficient to prove both the element of breaking and the presence of a person in the home.

Appellant also argues two letters were improperly admitted at trial. Cleary's girlfriend testified Cleary told her he had them written by someone in his cell and he mailed them to her. Defense counsel objected for lack of foundation since Cleary did not write the letters himself.

Appellant relies on Schorr v. State, 499 P.2d 450, 452-53 (Okl.Cr.1972), in which this Court held a letter written by the defendant's brother was not admissible against him because he had no control over its contents. The State counters that by sending the letters, Cleary tacitly approved and sponsored them. Appellant also relies on 12 O.S.1991, § 2801(4)(b) (authorized statements are not hearsay) to argue these statements are not authorized and thus, are not admissible.

Schorr is not persuasive here, for by being in the position to send or not send the letter, Cleary had final control of its contents. Sending the letter also defeats the section 2801 argument, for sending implies authorization. The trial court properly admitted these exhibits.

The admission of State's Exhibit 22, a styrofoam wig head pierced with foot-long dowels showing the location and trajectory of the five shots fired into the victim's face and neck, is challenged in Appellant's ninth proposition. This exhibit was used in conjunction with the medical examiner's testimony. Cleary argues the prejudicial effect of this gruesome exhibit greatly outweighed any probative value it might have had.

The decision of the trial court to admit evidence will be upheld on appeal absent a clear abuse of discretion. Hill v. State, 898 P.2d 155, 164 (Okl.Cr.1995). If evidence is relevant and its probative value is not substantially outweighed by its danger of unfair prejudice, admission is proper. See 12 O.S.1991, § 2403. This exhibit was relevant to show the victim's injuries, injuries which the admitted photographs did not show clearly. And while memorable, the exhibit was not particularly gruesome. We find the trial court properly admitted the exhibit, for its probative value was not substantially outweighed by the danger of unfair prejudice.

Preliminary hearing testimony of Dolores Riffe, an absent witness, was admitted at trial pursuant to 12 O.S.1991, § 2804(B)(1) following an in camera hearing at which the trial court ruled Riffe was unavailable. Appellant argues in his tenth proposition this was error, for the State failed to exercise due diligence to locate her.

Previous testimony may be admitted at trial if two threshold requirements are satisfied: the witness must be unavailable despite good faith and due diligence of the party calling the witness, and the transcribed testimony must bear sufficient indicia of reliability to allow the trier of fact a satisfactory basis for evaluating its truth. Davis v. State, 753 P.2d 388, 391 (Okl.Cr.1988); Funkhouser v. State, 734 P.2d 815, 817 (Okl.Cr.), cert. denied, 484 U.S. 942, 108 S.Ct. 326, 98 L.Ed.2d 354 (1987).

Appellant hangs his argument on the fact the State did not issue a subpoena. The State relies on the many efforts taken short of a subpoena to secure the presence of this witness, and the fact she was not available at Chandler's trial some months earlier.

On appellate review we look to all the relevant facts of the case, and issuance of a subpoena is not the sine qua non of good faith and due diligence. See Rogers v. State, 721 P.2d 820, 823-24 (Okl.Cr.1986). Cleary stipulated to the following efforts by the State to locate Ms. Riffe: (1) prior to Chandler's trial the prosecutor and defense counsel tried to locate Riffe who was believed to be a migrant fruit picker; (2) informants advised a State investigator the witness was somewhere in Arkansas; (3) a drivers' license check was run without result; (4) a witness told investigators she believed Riffe was in Texas, and the investigators tried unsuccessfully to locate Riffe; (5) the Tulsa Police looked for Riffe unsuccessfully; and (6) the investigator followed all available leads. The trial court properly found these facts establish good faith and due diligence.

As to reliability, Riffe was cross-examined thoroughly in the preliminary hearing, and at trial her entire testimony, including cross-examination, was read to the jury. This testimony thus bore sufficient indicia of reliability, and gave the jury a sound basis for...