Coddington v. State , D–2008–655.

• Citation: 2011 OK CR 17,254 P.3d 684
• Decision Date: 13 May 2011
• Docket Number: No. D–2008–655.,D–2008–655.
• Parties: James CODDINGTON, Appellant,v.STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

254 P.3d 684

2011 OK CR 17

James CODDINGTON, Appellant,

v.STATE of Oklahoma, Appellee.

No. D–2008–655.

Court of Criminal Appeals of Oklahoma.

May 13, 2011.

¶ 0 An Appeal from the District Court of Oklahoma County; The Honorable Jerry D. Bass, District Judge.Cathy Hammarsten, Faustine Curry, Assistant Public Defenders, Oklahoma City, OK, for appellant at trial.Sandra Elliot, Suzanne Lister, Assistant District Attorneys, Oklahoma City, OK, for State at trial.Marva A. Banks, Andrea Digilio Miller, Assistant Public Defenders, Oklahoma City, OK, for appellant on appeal.W.A. Drew Edmondson, Attorney General of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, for appellee on appeal.

OPINION

SMITH, Judge.

¶ 1 James A. Coddington was tried by jury and convicted of Murder in the First Degree in violation of 21 O.S.1991, § 701.7, in the District Court of Oklahoma County, Case No. CF–97–1500. In accordance with the jury's recommendation, the Honorable Jerry D. Bass imposed a sentence of death. This Court affirmed Coddington's conviction, but reversed the sentence, and remanded the case for resentencing. Coddington v. State, 2006 OK CR 34, 142 P.3d 437. A resentencing trial was held June 9–16, 2008. The jury found that the murder was heinous, atrocious or cruel, that Coddington committed the murder to avoid arrest or prosecution, that Coddington had been previously convicted of a felony involving the use or threat of violence, and that Coddington posed a continuing threat to society. In accordance with the jury's recommendation the Honorable Jerry D. Bass imposed the death penalty. Coddington appeals from this sentence and raises eighteen propositions of error in support of his appeal.

¶ 2 The full facts of the case are set forth in Coddington, 2006 OK CR 34, ¶¶ 3–8, 142 P.3d at 442. Briefly, Coddington, a recovering drug addict, resumed using crack cocaine in March, 1997. On March 5, 1997, Coddington visited his friend Albert Hale at Hale's home, hoping to borrow money for crack cocaine. Coddington knew Hale routinely carried large amounts of cash. Hale refused to loan Coddington money and asked him to leave. Coddington picked up a claw hammer in Hale's kitchen, hit Hale at least three times in the head, and took $525.00 from Hale's pocket. Coddington left Hale for dead, but Hale regained consciousness, tried to clean himself up, and lay down in bed. He was found by his son several hours later, semiconscious and in pain. Hale died at the hospital approximately a day later. In the days immediately before and after his attack on Hale, Coddington robbed several gas stations and convenience stores, threatening the clerks at knifepoint. Coddington was arrested and confessed to the robberies and murder. He expressed remorse for Hale's death.

JURY SELECTION

¶ 3 Coddington claims in Proposition II that the trial court violated his right to a fair and impartial jury by removing prospective jurors for cause over objection and absent proper questioning, before it was adequately established that those jurors could not follow the law and consider the death penalty. Because Coddington had already been found guilty of first degree murder, the primary issue in jury selection was whether potential jurors could consider all three punishments. Coddington complains that the trial court removed 22 jurors for cause because the jurors were unable to consider imposing the death penalty, over his objection and without allowing him to rehabilitate the jurors. Of these 22 potential jurors, five were questioned as alternates. ¹ Coddington cannot show prejudice from any alleged error which may have occurred when questioning these jurors, as the record does not show any alternate jurors sat on Coddington's jury. Black v. State, 2001 OK CR 5, ¶ 87, 21 P.3d 1047, 1075; Powell v. State, 2000 OK CR 5, ¶ 36, 995 P.2d 510, 522.

¶ 4 Coddington objected to excusal of each juror on the grounds that he was entitled to jurors representing a fair cross-section of the community, including people opposed to the death penalty. This is not an accurate statement of law. “A prospective capital juror should be excused for cause when the juror's views on capital punishment would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.’ ” Sanchez v. State, 2009 OK CR 31, ¶ 44, 223 P.3d 980, 997, quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). A juror who would under no circumstances vote for capital punishment is not impartial and must be removed for cause. Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492 (1992). On its face Coddington's objection would have required the trial court to allow on the panel a juror who could not fulfill her duties and would be ineligible to serve. It is possible that the defense attorney intended to say that Coddington had a right to a jury which included people who objected generally to the death penalty, as long as those persons were willing to consider imposing the death penalty in this case. This is true. The trial court should not excuse for cause persons who oppose in principle, harbor doubts or express scruples regarding imposition of the death penalty, as long as those persons can consider the punishment. Witherspoon v. Illinois, 391 U.S. 510, 522–23, 88 S.Ct. 1770, 1776–77, 20 L.Ed.2d 776 (1968). Whether the issue was properly preserved or not, there was no error in jury selection.

¶ 5 Voir dire examination allows both sides to gather enough information about prospective jurors to discover grounds for challenges for cause, and to permit the intelligent use of peremptory challenges. Sanchez, 2009 OK CR 31, ¶ 44, 223 P.3d at 997. The manner and extent of voir dire are within the trial court's discretion. Id. A capital juror must be willing to consider all three punishments provided by law. Hogan v. State, 2006 OK CR 19, ¶ 17, 139 P.3d 907, 918; Mitchell v. State, 2006 OK CR 20, ¶ 39, 136 P.3d 671, 688–89. Jurors need not flatly say they will automatically vote against the death penalty, and a juror's bias need not be proved with unmistakable clarity. Jones v. State, 2009 OK CR 1, ¶ 14, 201 P.3d 869, 877; Hanson v. State, 2003 OK CR 12, ¶ 10, 72 P.3d 40, 48. Because the trial court is in a position to assess each juror's response to questions, including non-verbal responses which may not appear in a cold transcript, we defer to the trial court's personal observations. Harmon v. State, 2011 OK CR 6, ¶ 14, 248 P.3d 918, 929; Jones, 2009 OK CR 1, ¶ 14, 201 P.3d at 877.

¶ 6 Coddington complains that the trial court did not question jurors correctly. This Court has upheld the “always” and “never” line of questions similar to that used here. Harmon, 2011 OK CR 6, ¶ 22, 248 P.3d at 930–31; Stouffer v. State, 2006 OK CR 46, ¶¶ 14–16, 147 P.3d 245, 257. The trial court correctly instructed jurors regarding aggravating circumstances, mitigating evidence, the three punishments provided by law, and the jury's duty to consider all three punishments. The trial court explained that jurors could only consider the death penalty if they found at least one aggravating circumstance beyond a reasonable doubt, and then unanimously found that the aggravating circumstance outweighed any mitigating evidence. The trial court asked jurors whether they could give meaningful consideration to all three possible alternative penalties. The court told potential jurors that each had to keep an open mind and consciously, and conscientiously, consider all three punishments. After this, the trial court told jurors that some people would “always” impose the death penalty and others would “never” do so. He asked each juror if he or she was in either of those categories. The trial court excused the jurors who said they would “always” impose the death penalty. Coddington did not object to this procedure and in fact joined the State in asking that the “always” panelists be excused for cause. Coddington also asked that one prospective alternate juror who answered “always” be excused for cause.

¶ 7 Despite accepting the process for jurors who would automatically impose the death penalty, Coddington claims the trial court improperly excused the jurors who said they were included in the “never” category. These prospective jurors were questioned individually regarding their ability to consider the death penalty in this particular case. The trial court told each juror the law required them to meaningfully consider all three punishments, asked if he or she could do so, and asked whether each juror was irrevocably committed to a position on punishment before the trial began. Contrary to Coddington's claim, fifteen prospective jurors unequivocally stated they would or could not consider imposing the death penalty in this case. ² The trial court asked the prospective jurors if they refused to give the death penalty in this case no matter what the law and evidence were, if they refused to deliberate or would be unable to deliberate, and if they could follow the law. The trial court asked each panelist if they were firm in their answer and convictions. Before excusing each of these fifteen jurors, the trial court made a record noting his observations of jurors as they answered, and finding that the jurors could not deliberate, were not impartial and were not eligible to serve. The trial court's questions did not directly quote the language approved in the uniform jury instructions, but the questions sufficiently identified the jurors who were ineligible to serve because they could or would not consider the death penalty in this case, regardless of the law or facts presented. Harmon, 2011 OK CR 6, ¶ 22, 248 P.3d at 931; Williams v. State, 2001 OK CR 9, ¶ 13, 22 P.3d 702, 710.

¶ 8 Coddington complains that prospective juror M.M. was improperly excused for cause over his objection, but this is not supported...