Davis v. State

Decision Date07 February 2012
Docket NumberNo. D–2007–891.,D–2007–891.
Citation268 P.3d 86,2011 OK CR 29
PartiesNicholas Alexander DAVIS, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

OPINION TEXT STARTS HERE

¶ 0 An Appeal from the District Court of Oklahoma County; The Honorable Kenneth C. Watson, District Judge.Catherine Hammarsten, Cynthia Viol, Assistant Public Defenders, Oklahoma City, OK, counsel for appellant at trial.

C. Wesley Lane II, District Attorney, Sandra Howell–Elliott, Suzanne Lister, Assistant District Attorneys, Oklahoma City, OK, counsel for the State at trial.

Kim Chandler Baze, Assistant Public Defender, Oklahoma City, OK, counsel for appellant on appeal.W.A. Drew Edmondson, Attorney General of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.

OPINION

LUMPKIN, Judge.

¶ 1 Appellant Nicholas Alexander Davis was tried by jury and convicted of First Degree Malice Murder (Count I) (21 O.S.2001, § 701.7(A), two counts of Shooting with Intent to Kill After Former Conviction of Two or More Felonies (Counts II and III), (21 O.S.2001, § 652), and Felonious Possession of a Loaded Firearm, After Former Conviction of a Felony, (Count IV) (21 O.S.2001, § 1283), Case No. CF–2004–347, in the District Court of Oklahoma County. In Count I, the jury found the presence of three aggravating circumstances: 1) that the defendant knowingly created a great risk of death to more than one person, 2) the murder was committed by a person while serving a sentence of imprisonment on conviction for a felony, and 3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, and set punishment at death. In Counts II and III, the shootings of Tia Green and Chinetta Hooks, respectively, the jury recommended prison sentences of forty-five (45) years and sixty-five (65) years respectively. In Count IV, the jury recommended a sentence of twenty-five (25) years imprisonment. The trial judge sentenced Appellant in accordance with the jury's determination and ordered all sentences to run concurrently. Appellant now appeals his convictions and sentences. 1

¶ 2 On January 15, 2004, at approximately 10:30 p.m., Tia Green picked up her sister, Chinetta Hooks, from work and took her home. Hooks, her husband and four children, all under the age of ten, lived in Apartment 1111 in the Falls Creek Apartments in Oklahoma City. Seventeen year old, Marcus Smith, Hooks' brother-in-law, had been watching the children while Hooks and her husband worked. When Green and Hooks arrived at the apartment, the children had made a pallet in the living room intending to sleep there all night. Hooks rejected the idea and sent the children to bed. She, Green and Smith then visited for a while.

¶ 3 Shortly after 11:00 p.m., there was a knock on the front door. Smith went to the front door and tried to look out of the peephole. However, the person on the other side had put their thumb over it. The trio inside the apartment repeatedly asked who was at the door but received no response. Thinking it might be his brother, Smith slightly opened the door. Appellant, clad completely in black clothing, forced his way into the apartment with a gun in his hand. He shut the front door behind him and locked it. Appellant was Green's former boyfriend. She had only recently ended a turbulent relationship with him. When Appellant entered the apartment, he pointed the gun at Smith as Smith put his hands in the air and backed up. Green and Hooks remained seated on the sofa. Smith asked Appellant, “what's going on” and “why are you doing this, man?” Appellant offered no reply. Green also asked Appellant what he was doing. Appellant initially gave no response, but eventually looked at Green and said, “you hurt me for the last time.” Appellant then lowered the gun to his side. Green reached for her cell phone but Appellant told her, “you bet not touch that phone.” Green and Hooks then started screaming for Appellant not to shoot. Appellant responded by raising his gun, pointing it at Smith, then lowering the gun. Green pleaded with Appellant to go outside with her and talk things over. Appellant's response was to raise the gun a third time to Smith's head and fire.

¶ 4 After the first shot, Green ran into the nearby bathroom. She locked the door and attempted to call the police. Unable to get her call to go through, she phoned another sister, told her Appellant had shot her, and directed her to call the police. Appellant followed Green to the bathroom, kicking at the door and shouting at her to open the door.

¶ 5 Meanwhile, intending to call the police, Hooks had run into the kitchen upon hearing the first gunshot. She felt a shot go through her leg before falling to the floor. She heard a total of nine gunshots. The children, upon hearing the gunshots, ran to the kitchen to find their mother on the floor in a pool of blood. When they began screaming that their mother was going to die, Hooks told them to go to the neighbor's apartment. Still holding the telephone, she dialed 911, said she had been shot and then lost consciousness.

¶ 6 Green was still hiding in the bathroom when she heard the children run down the hallway toward the kitchen. As Appellant was no longer kicking the door, Green left the bathroom and sat with her sister until police arrived. Oklahoma City Police Officer Matthew Reed responded to the 911 call and was met at the apartment complex gate by Hooks' children. Before being taken to the hospital, Green identified Appellant as the shooter. She had been shot twice—once in the side and once in the back. The bullet which entered her side became lodged in her chest while the other bullet exited her body.

¶ 7 Hooks had been shot in the right arm, right leg, and the back of her head. Only the bullet to her arm became lodged in her body, the other two having exited. Marcus Smith was dead at the scene. He had been shot three times—on the top of his head, the left shoulder, and the back between the shoulder blades. The bullet to his left shoulder was the only one to exit his body.

¶ 8 After the shootings, Appellant fled the scene. He was eventually arrested four months later in San Antonio, Texas. Appellant voluntarily spoke with police and told them he threw the murder weapon onto the side of an interstate highway in Oklahoma. The weapon has never been recovered. Appellant also told police that Green had called him and told him to meet her at her sister's apartment so they could talk. He said he took a gun with him because he did not trust Green as she had tried to harm him in the past. Appellant said he was surprised to find Smith at the apartment as he was not expecting a man to be there. Appellant admitted shooting Green, Hooks and Smith but said he shot Smith in self-defense after Smith lunged at him. Further facts will be set forth as necessary.

JURY SELECTION

¶ 9 In his first proposition of error, Appellant contends that orange ribbons commemorating “National Victims Week” worn in the courtroom during voir dire denied him a fair trial and due process. Appellant asserts the wearing of the ribbons constituted state action which severely prejudiced him and were “clearly intended to brand [him] with an ‘unmistakable mark of guilt.’ (Appellant's brief, pg. 22).

¶ 10 The record reflects that after a lunch recess on the second day of voir dire defense counsel informed the court that another attorney in her office had seen people in the courthouse wearing orange ribbons. Defense counsel said she had noticed the ribbons for the first time that day and asked a woman wearing one where she got it. The woman told her the District Attorney's Victim Witness Center was handing them out.2 Defense counsel described the ribbons as orange with the words “one victim, one crime, one week” written in gold. Defense counsel asked the court for an in-camera voir dire of the prospective jurors to determine if any of them had seen the ribbons and if they were prejudiced by them. The prosecutors objected, commenting that the writing on the ribbons was small and only visible up close and there had been no claim that any of the jurors in Appellant's case had even seen the ribbons. The court denied Appellant's request for an in-camera voir dire, but agreed to collectively inquire of the prospective jurors if they had seen and read the ribbons. The court reminded defense counsel that “a lot of these things are going to be able to be resolved by you on your voir dire.

¶ 11 After a brief in-camera hearing on an unrelated juror matter, the prosecutor informed the court that the court's bailiff had said that the decedent's mother, accompanied by a victim-witness advocate, had entered the courtroom wearing the orange ribbon while the court and counsel were occupied in chambers. This occurred in full view of the prospective jurors awaiting the resumption of voir dire. The women went to the bar of the courtroom looking for one of the prosecutors and one of the women was identified as the decedent's mother. When the bailiff informed the women she didn't think they should be in the courtroom at the time, one of them wrote a note and told the bailiff to tell the prosecutor they were going back to the witness center.

¶ 12 Defense counsel asked for a mistrial “based on the ribbon, coupled with the victim's mother and the jury realizing that that's who it was.” Defense counsel argued that [n]ormally the jurors don't know who the victim's mother is until some point down the road, like after they have testified” and therefore this was prejudicial to the defendant. The court denied the request for a mistrial finding no impropriety in the decedent's mother's presence. However, the court did question the prospective jurors regarding the ribbons.

¶ 13 When the trial court asked the prospective jurors if they had seen anyone wearing ribbons with some distinct...

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