Darks v. State, F-95-1388

• Citation: 1998 OK CR 15,954 P.2d 152
• Decision Date: 12 February 1998
• Docket Number: No. F-95-1388,F-95-1388
• Parties: 1998 OK CR 15 Tyrone Peter DARKS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 152

954 P.2d 152

1998 OK CR 15

Tyrone Peter DARKS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-95-1388.

Court of Criminal Appeals of Oklahoma.

Feb. 12, 1998.

Rehearing Denied March 17, 1998.

Diane Box, Oklahoma City, for Defendant at trial.

Richard Sitzman, Assistant District Attorney, Norman, for the State at trial.

Jamie D. Pybas, Appellate Defense Counsel, Norman, for Appellant on appeal.

Richard Sitzman, Asst. District Attorney, Norman, for the State at trial.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

OPINION

JOHNSON, Judge.

¶1 Tyrone Peter Darks, hereinafter "Appellant," was tried and convicted by jury of the crime of Murder in the First Degree, malice aforethought, in Case No. CF-94-1024 in the District Court of Cleveland County before the Honorable William C. Hetherington, Jr., District Judge. The jury found one aggravating circumstance: that Appellant would constitute a continuing threat to society. The trial judge sentenced Appellant in accordance with the jury's recommendation of death. From this judgment and sentence, Appellant has perfected this appeal.

Facts

¶2 On Sunday, August 7, 1994, Sherry Goodlow, the decedent in this case, went to church with her two-year-old son, Scott, and her friend, Shurl Gabriel. After the services, they went grocery shopping in Del City, Oklahoma. According to the store receipt, the purchase was consummated at 2:19 p.m. and Ms. Gabriel went home. At 2:52 p.m., Ms. Goodlow called 911 from a pay telephone north of Reno on Eastern Avenue and reported that Appellant, her ex-husband and father of Scott, ran her off the road and took their son. After explaining she had legal custody of Scott, she was advised that an officer would meet her at Appellant's residence. At 3:09, Ms. Goodlow made another 911 call to inquire of the whereabouts of the officer. At 3:15, Sergeant Ken Davis, Oklahoma City police officer, received the dispatch to go to Appellant's residence. When the officer subsequently arrived at 3:27 p.m., he found neither Ms. Goodlow nor Appellant and was told by Appellant's mother that she had not seen or heard from Ms. Goodlow.

¶3 Jamey Harrison testified that on that same afternoon, he was working outside on the driveway of his home located near S.E. 89th and Westminster Road, east of Lake Stanley Draper, when a black male drove into his driveway. At trial, Mr. Harrison identified the vehicle from photographs as Appellant's vehicle. Thinking the man may have wanted directions, Mr. Harrison walked toward the vehicle which slowly backed out while the driver kept looking at Mr. Harrison. Mr. Harrison then noticed a small white vehicle with a black driver stopped at the intersection of 89th and Westminster. The white vehicle took off "real fast." Appellant's vehicle accelerated and turned behind the white vehicle. Mr. Harrison lost sight of both vehicles after they turned the corner. Approximately 10 to 15 minutes later, Mr. Harrison heard what sounded like exploding firecrackers coming from the direction southwest of his home.

¶4 Mark Folks testified that sometime after 3:00 p.m. on the same afternoon, he was working on his pickup truck in his home shop located near 97th and Westminster Road when he heard his dogs barking. He went outside and saw a black female driver in a white Mustang sitting in his driveway in front of the steel gate of his home. When Mr. Folks was about halfway to the vehicle, the woman backed out of the driveway and drove south to the intersection of Westminster and Draper Drive. Mr. Folks could hear the woman screaming. Thinking the woman may be in danger, Mr. Folks ran back to his shop and got into his pickup to follow the woman. When Mr. Folks got to the corner of Westminster, he did not see the vehicle. He turned south, drove a short distance and turned back around. When he got back to the intersection of Westminster and Stanley Draper Drive, Mr. Folks saw tire tracks in the grass along the north side of Stanley Draper Drive. Mr. Folks followed the tracks into the brush, discovered Ms. Goodlow's vehicle with the engine still running and the lights still flashing. Mr. Folks called out to determine if anyone would answer. When he got no response, Mr. Folks went back to his house and called 911. Mr. Folks then went to his neighbor's home where Oklahoma City Police Office Heinken lived. Officer Heinken was not at home. Mrs. Heinken accompanied Mr. Folks to the vehicle. As he approached the vehicle, he noticed the windows were down approximately four (4) inches on each side and Ms. Goodlow lying across the seat.

¶5 Richard Maytubby testified he was a cell-mate of Appellant while they were at the Oklahoma City jail. During a conversation among the other cell-mates, Appellant admitted he killed his girlfriend. According to Maytubby, Appellant told them his girlfriend was coming from church and somewhere on the east side [of the city], he got his son from her and put him into his car. She followed him up to Draper Lake. When he got there, he shot her twice in the head and three or four times in the back with a .38 caliber gun. She was sitting in the car, her foot on the brake, and the car still in drive when he shot her.

¶6 By stipulation, Gordon Robertson, ballistics expert for the State, testified that the three bullets recovered from the victim's body and the one recovered from her car were all consistent with a .38 caliber.

¶7 Other facts will be discussed as pertinent to the relevant propositions of error.

PRETRIAL ISSUES

A.

¶8 In his sixth proposition of error, Appellant claims the trial court never acquired subject matter jurisdiction because the Information failed to allege all of the elements of malice murder, specifically, the element "malice aforethought," on which the jury was instructed. Appellant acknowledges our ruling in Parker v. State, 917 P.2d 980 (Okl.Cr.1996), cert. denied, --- U.S. ----, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997), where we held that "any failure to allege facts constituting the offense raises due process questions but does not affect the trial court's jurisdiction." Id. at 985. We further held that "a trial court's jurisdiction is triggered by the filing of an Information alleging the commission of a public offense with appropriate venue." Id. Thus, a due process violation due to insufficiency of the Information does not necessarily mean that jurisdiction was not conferred.

¶9 However, Appellant asks this Court not to apply this new rule retroactively and submits that to do so is in violation of Oklahoma case law and is fundamentally unfair under federal and state constitutional provisions for due process of law and equal protection of the laws. Appellant relies on several cases where this Court did not apply new state law rules retroactively, regardless of whether the rule works to the benefit or detriment of the defendant. See Cargle v. State, 909 P.2d 806, 828-829 (Okl.Cr.1995), cert. denied, --- U.S. ----, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996); Wallace v. State, 893 P.2d 504, 512-513 (Okl.Cr.), cert. denied, 516 U.S. 888, 116 S.Ct. 232, 133 L.Ed.2d 160 (1995); Salazar v. State, 852 P.2d 729, 737 (Okl.Cr.1993); Salazar v. State, 859 P.2d 517, 518-19 (Okl.Cr.1993).

¶10 Appellant thus asks this Court to follow Revilla v. State, 877 P.2d 1143, 1148 (Okl.Cr.1994), cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995) and Pickens v. State, 885 P.2d 678, 684 (Okl.Cr.1994) where this Court held that the failure to use the term "malice aforethought" in a first degree murder Information did not properly charge the defendant with malice murder. However, in the recent decision of Cudjo v. State, 925 P.2d 895 (Okl.Cr.1996), cert. denied, --- U.S. ----, 117 S.Ct. 981, 136 L.Ed.2d 863 (1997), this Court held that the phrases "with premeditated design" and "malice aforethought" clearly conveyed the same meaning and that any subtle differences between the two terms are inconsequential. Additionally, this Court expressly overruled Pickens insofar as it was inconsistent with this holding.

¶11 In light of the foregoing, the use of the phrase "with premeditated design" in the instant case was sufficient to advise Appellant that he was charged with "malice aforethought" murder. Thus, Appellant's contention that the trial court lacked subject matter jurisdiction is without merit. This proposition of error is denied.

B.

¶12 In the first subproposition raised in Appellant's second proposition of error, Appellant contends that there was no probable cause to place him under arrest and therefore all evidence obtained as a result of the warrantless and illegal arrest was inadmissible. We note that this issue is raised for the first time on appeal. The record reveals that Appellant objected to the admission of the videotaped interview, Exhibits 57 and 58, ¹ on the grounds that 1) the interview was designed to portray Appellant in an unfavorable light for later presentation to the jury and 2) the interview was conducted for the purpose of preserving a record for a death penalty case by showing Appellant's lack of remorse. No objection was raised as to Appellant's arrest.

¶13 This Court has long held that failure to timely object to the legality of an arrest prior to entering a plea to the charges waives appellate review of the issue. Clayton v. State, 840 P.2d 18, 28 (Okl.Cr.1992), cert. denied, 507 U.S. 1008, 113 S.Ct. 1655, 123 L.Ed.2d 275 (1993); Holliday v. State, 755 P.2d 124, 126 (Okl.Cr.1988); Carter v. State, 738 P.2d 562, 563 (Okl.Cr.1987); Miles v. State, 416 P.2d 964, 965 (Okl.Cr.1966). Accordingly, this subproposition of error is waived.

¶14 In his second subproposition, Appellant claims that Exhibits 57 and 58 should have been excluded because they contained improper, prejudicial comments and opinions by the interviewing detectives. Specifically, Appellant complains of the statements...