DeLozier v. State

• Decision Date: 31 December 1998
• Docket Number: No. F 96-764.,F 96-764.
• Citation: 1998 OK CR 76,991 P.2d 22
• Parties: Michael DeLOZIER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

991 P.2d 22

1998 OK CR 76

Michael DeLOZIER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F 96-764.

Court of Criminal Appeals of Oklahoma.

December 31, 1998.

Rehearing Denied February 22, 1999.

Robert G. Perrine, Talley & Perrine, Norman, Oklahoma, for defendant at trial.

Walter Hamilton, District Attorney, Gary Brock, Assistant District Attorney McCurtain County,, Idabel, Oklahoma, for the state at trial.

Lee Ann Jones Peters, Appellate Defense Counsel, Indigent Defense System, Norman, Oklahoma, for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant

Attorney General, Oklahoma City, Oklahoma, for appellee on appeal.

OPINION

LANE, Judge:

¶ 1 Appellant, Michael DeLozier, was charged with two counts of First Degree Malice Murder in violation of 21 O.S.1991, § 701.7, in McCurtain County District Court Case No. CRF-95-258. The State filed Bills of Particulars for both counts alleging four aggravating circumstances for count one and three aggravating circumstances for count two.¹ A jury trial was held before the Honorable Willard Driesel, District Judge. The jury found DeLozier guilty of both counts of first degree murder and found in both counts that DeLozier knowingly created a great risk of death to more than one person and that there existed the probability that DeLozier would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12(2) & (7). As to count one, the jury also found that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. 21 O.S.1991, § 701.12(5). The jury recommended DeLozier be sentenced to death for both counts. The trial court sentenced accordingly. From this Judgment and Sentence DeLozier has perfected his appeal.

FACTS

¶ 2 Steven Morgan and Orville Lewis Bullard were camping in a converted step-van on the bank of the Glover River in northern McCurtain County. About 600 yards from their campsite was the "Tate bus," a bus also converted for camping. DeLozier, Glenney Dale Madison, Nathaniel Brandon Madison, and others were staying at the bus. Sometime on Saturday, September 23, 1995, DeLozier, the Madison brothers and James Oliver happened upon the Morgan campsite. They engaged in conversation for a few minutes.

¶ 3 While there DeLozier spotted a generator he thought would bring about $700 if stolen. Once back at the Tate bus, DeLozier mentioned stealing the generator. Several of the group, including DeLozier, talked about killing Morgan and Bullard and stealing everything they had.

¶ 4 That night, DeLozier, carrying a single shot shotgun, Glenny Madison, carrying a .22 caliber rifle, and Nathaniel Madison, set off for the Morgan site. Once there, according to Nathaniel Madison, DeLozier stepped into the camper and fired a single shot toward the rear with the shotgun. Then Glenny Madison stepped into the camper and fired a shot from the .22 rifle. The group then stood near Morgan's pickup where Glenny Madison fired several shots into the front of the camper. Nathaniel Madison shouted several times for the camper's occupants to come out, saying nothing would happen to them.

¶ 5 After several minutes, Morgan stepped from the camper. Upon doing so, DeLozier shot him once in the chest with the shotgun. DeLozier and Glenny Madison approached Morgan, and DeLozier took the rifle from Glenny and fired it once into Morgan's face.

¶ 6 The three loaded the generator and many other items from the campsite, some of which were taken from the camper, into Morgan's pickup and took the stolen items back to the Tate bus. On the final trip back to the Morgan camper, the trio encountered headlights coming from the Morgan camp site. All three bailed out from the pickup and left it sitting in the road.

¶ 7 George Vance was driving the vehicle which frightened the trio. He drove up on the Morgan camper and observed Morgan lying on the ground with his pants in his hands. Upon seeing this he turned around and got out as fast as he could. On his way out he found that he was blocked by Morgan's abandoned pickup. He got out of his vehicle and moved Morgan's pickup to the side of the road.

¶ 8 Morgan was found lying on his back outside the camper in front of the door. His body had been burned. Morgan's camper had been burned with the body of Bullard still lying in his bed. Morgan's pickup had also been burned.

¶ 9 DeLozier raises several propositions of error in his appeal. These propositions will be addressed in the order in which they arose at trial.

JURY SELECTION ISSUES²

¶ 10 In proposition eight DeLozier argues that he was denied a fair and impartial jury. DeLozer claims that four jurors should have been removed for cause because they indicated an inability to fairly consider the penalties of life or life without the possibility of parole.

¶ 11 DeLozier first complains that the trial court erred in failing to remove juror 14 for cause as trial counsel requested. Juror 14 told the court that she could fairly consider all three punishments. The trial court did not abuse its discretion in refusing to remove juror 14 for cause. Smith v. State, 1991 OK CR 100, ¶ 16, 819 P.2d 270, 275, cert. denied, 504 U.S. 959, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992).

¶ 12 DeLozier complains that jurors 18, 41 and 49 should have been removed for cause, sua sponte. Trial counsel removed juror 49 by use of a peremptory strike. Jurors 18 and 41 remained on the jury panel. Trial counsel did not ask to have any of these three jurors removed for cause. Therefore, we review for plain error only. Plain error is error which goes to the foundation of the case, or which takes from a defendant a right essential to his defense. Cleary v. State, 1997 OK CR 35, ¶ 81, 942 P.2d 736, 752, cert. denied, 523 U.S. 1079, 118 S.Ct. 1528, 140 L.Ed.2d 679 (1998). In reviewing the record in this case, we cannot say the failure to remove these jurors, sua sponte, rose to the level of plain error. They each indicated a willingness to consider all three punishment options.

FIRST STAGE ISSUES

¶ 13 In proposition two, DeLozier claims that the evidence was insufficient to convict him of first degree murder. DeLozier bases this argument on the premise that Nathaniel Madison's testimony was not sufficiently corroborated.

A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

22 O.S.1991, § 742. If the accomplice's testimony is corroborated as to one material fact by independent evidence tending to connect the defendant with the commission of the crime, from that, the jury may infer that the accomplice speaks the truth as to all. Sellers v. State, 1991 OK CR 41, ¶ 30, 809 P.2d 676, 686, cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991).

¶ 14 Nathaniel Madison's testimony only needed to be corroborated in one material fact by independent evidence tending to connect DeLozier with the murders of Morgan and Bullard. The corroborative evidence need not be complete, independent proof of the crime; it is sufficient if it connects DeLozier to the murders. See Spears v. State, 1995 OK CR 36, ¶ 29, 900 P.2d 431, 440,

cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995).

¶ 15 The corroborative evidence in this case was as follows: testimony that DeLozier admitted killing two men while he was threatening another inmate in the county jail; DeLozier's testimony that he left his camp site carrying the shotgun that was used in the murders; DeLozier's admission that he stole from the victim's campsite; and Vance's testimony that he observed Morgan lying on the ground outside the camper before meeting DeLozier and the others on the road, corroborating Nathaniel Madison's story that Morgan and Bullard were killed while all three were at the Morgan camp.

¶ 16 DeLozier argues in proposition three that the introduction of Nathaniel Madison's out of court statements to O.S.B.I Agent Birchfield constituted improper bolstering. The State argues that the statements were admissible pursuant to 12 O.S. 1991, § 2801(4)(a)(2), which reads in part,

A statement is not hearsay if . . . the declarant testifies at the trial . . . and is subject to cross-examination concerning the statement, and the statement is . . . consistent with his testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. . . .

¶ 17 In discussing this same issue in Plotner v. State, 1988 OK CR 139, ¶¶ 32-33, 762 P.2d 936, 943-44, overruled on other grounds in Parker v. State, 1996 OK CR 19, 917 P.2d 980 (1996),

we said:

that two foundational requirements must be met before such statements are admissible: "First, there must have been a suggestion that the witness has either fabricated his trial testimony or has been unduly influenced. Second, it must be established that the consistent statement was made prior to the time when there was a motive for the witness to lie or there was an exercise of improper influence." quoting 1 L. Whinery, Guide to the Oklahoma Evidence Code 263 (1985).

See also Huckaby v. State, 1990 OK CR 84, ¶ 13, 804 P.2d 447, 451

; Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 705, 130 L.Ed.2d 574 (1995) (Fed.R.Evid.Rule 801(d)(1)(B), from which 12 O.S.1991, § 2801(4)(a)(2), is copied, requires that the prior consistent statement must have been made before the alleged motive to falsify arose). In the present case the that there was a suggestion that the witness had fabricated his trial testimony or had been unduly influenced is shown by defense counsel's cross-examination. In the cross-examination defense counsel made a point to carefully detail the plea agreement Nathaniel Madison had made with the...