Cudjo v. State
Decision Date | 09 September 1996 |
Docket Number | No. F-91-130,F-91-130 |
Citation | 1996 OK CR 43,925 P.2d 895 |
Parties | Willard Keith CUDJO, Appellant, v. STATE of Oklahoma, Appellee. |
Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Willard Keith Cudjo was tried by a jury and convicted of Conspiracy to Commit Robbery by Force or Fear (Count I), Robbery with a Dangerous Weapon (Count II) and First Degree Malice Aforethought Murder (Count III) in the District Court of Seminole County, Case No. CRF-90-94. The jury found the existence of the following three aggravating circumstances: (1) the murder was especially heinous, atrocious or cruel; (2) the murder was committed for the purpose of avoiding lawful arrest or prosecution; and (3) Appellant posed a continuing threat to society. In accordance with the jury's recommendation, the Honorable Gary R. Brown sentenced Appellant to ten (10) years imprisonment for the conspiracy conviction, seventy-five (75) years for the robbery conviction, and death for the murder conviction. From this judgment and sentence, Appellant has now perfected his appeal to this Court.
During the evening hours of May 8, 1990, Appellant fatally shot Paul Pierce, the manager of the Wewoka Food Center grocery store. Appellant had entered the grocery store near closing hours and hidden so that he could burglarize the store after the store closed. However, Appellant was surprised by Pierce when he returned to the store to lock the cash register drawers and daily receipts in the store safe. Upon being confronted by Pierce, Appellant shot Pierce once in the back of the head. Pierce died a few days later from the gun shot wound.
Other relevant facts will be discussed in the assignment of error to which they relate.
Appellant contends in his eighth proposition of error that the Information was insufficient as it failed to allege the elements of the offense of First Degree Murder and failed to inform Appellant of the theory of homicide upon which the State would rely. Citing Pickens v. State, 885 P.2d 678, 683 (Okl.Cr.1994), Appellant contends the Information in the present case was clearly insufficient. The Court in Pickens applied Miller v. State, 827 P.2d 875, 877-879 (Okl.Cr.1992), which requires a criminal Information to set forth facts to allege each element of the crime charged. The Court concluded the Information did not properly allege each element of first degree murder under the theories of malice or felony murder. Pickens, 885 P.2d at 683-684.
However, this Court recently rejected Miller in Parker v. State, 917 P.2d 980 (Okl.Cr.1996). The Court concluded that any failure to allege facts constituting an offense raises due process questions, but does not automatically affect the trial court's jurisdiction. Id. at 985. Thus, our review now focuses on whether the Information gave the defendant notice of the charges against him and apprised him of what he must defend against at trial. Id. at 986. This determination will be made on a case-by-case basis.
In the instant case, Appellant never objected to the Information at the trial level. Furthermore, although a specific reference was made at the top of the Information to 21 O.S. § 701.7(B) which is the felony murder sub-section of the First Degree Murder statute, the jury was only instructed on malice aforethought murder. Defense counsel did not object to these instructions. Moreover, felony murder instructions were apparently never considered by any of the parties. Consequently, we will limit our review to whether the Information gave Appellant sufficient notice that he was to defend against the charge of malice murder.
Upon looking to the "four corners" of the Information together with all of the materials that were made available to Appellant at preliminary hearing and through discovery, we find Appellant received sufficient notice of the charge against him in the present case. See Parker, 917 P.2d at 986. It is also clear from the trial record that Appellant understood he was charged with malice aforethought murder. 1 Consequently, we find no due process violation occurred. This assignment of error is thus denied.
Appellant complains in his third proposition of error that two prospective jurors were improperly excused for cause sua sponte by the trial court when they expressed reservations about the death penalty. In Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968), the United States Supreme Court held:
... a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause SIMPLY BECAUSE THEY VOICED GENERAL OBJECTIONS TO THE DEATH PENALTY or expressed conscientious or religious scruples against its infliction. [footnote omitted] [emphasis added]
The Court in Witherspoon further noted that "[t]he most that can be demanded of a venireman in this regard is that he is willing to consider all of the penalties provided by state law, ..." Witherspoon, 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21.
The trial court in the instant case initiated the voir dire. The court limited its voir dire on the issue of the death penalty to the following question:
In a case where the law and the evidence warrant, could you without doing violence to your conscience recommend the death penalty?
After posing this question, the trial court polled the prospective jury panel for their responses. Venire-persons Redding, Warrior and Sawyer were not required to answer the question as the trial court stated it had already determined they would be excused for cause. Venire-persons Conley and Sands were the only two prospective jurors to express reservations about the death penalty. Thereafter, the trial court excused venire-persons Redding, Warrior, Sawyer, Conley and Sands. As the trial court had already determined that Redding, Warrior and Sawyer needed to be excused for other reasons, we must assume Conley and Sands were excused strictly because they expressed reservations about the death penalty.
This Court has repeatedly held the "violence done to your conscience" question is improper as it tends to be confusing. McGregor v. State, 885 P.2d 1366, 1375 (Okl.Cr.1994), cert. denied, --- U.S. ----, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995); Hooks v. State, 862 P.2d 1273, 1277 (Okl.Cr.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994). Moreover, violence done to one's conscience is not the point of the Witherspoon decision. Mayes v. State, 887 P.2d 1288, 1297 (Okl.Cr.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995); Duvall v. State, 825 P.2d 621, 630 (Okl.Cr.1991), cert. denied, 506 U.S. 878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992). Rather, the only legitimate concern is whether each jury member is willing to consider the imposition of the death sentence, as one of the alternatives provided by state law, should the case be appropriate for that punishment. Mayes, 887 P.2d at 1297.
Although we have found this error to be harmless on numerous occasions in the past where the record clearly demonstrated that the correct standard was substantially satisfied 2, we are unable to do so in this case. The trial court limited its questioning regarding the death penalty to the one improper question. Thereafter, the two venire-persons who expressed reservations about the death penalty were immediately excused. Without further inquiry into their views regarding the death penalty, we cannot conclude Conley and Sand's views would have prevented or substantially impaired the performance of their duties as jurors.
Finding plain error has occurred, Appellant's sentence of death cannot be permitted to stand. Witherspoon, 391 U.S. at 522-23, 88 S.Ct. at 1776-78. We are thus left with two options--either remand this case for resentencing or modify Appellant's death sentence. For reasons which will be discussed more fully when addressing the sentencing stage issues, we find Appellant's death sentence should be modified.
Appellant contends in his first assignment of error that the evidence was insufficient to support his convictions for First Degree Murder and Robbery with a Dangerous Weapon. Appellant contends the evidence established nothing more than a suspicion that he was in the Wewoka Food Center the night Paul Pierce was shot and the armed robbery was committed. Appellant specifically contends the State's key witness, Maurice Brown, was not credible, and thus, no rational trier of fact could have accepted his testimony as true. 3 Appellant further asserts that Brown's accomplice testimony was not sufficiently corroborated.
The State's proof at trial consisted of both direct and circumstantial evidence. Consequently, due process requires this Court determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985).
Prior to the murder, Appellant told several people that he had been burglarizing the Wewoka Food Center by hiding in the store near closing hours and taking things after everyone was gone. Appellant said that Maurice Brown, an employee at the grocery store, had been giving him "inside...
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