Douglas v. State
| Citation | 1997 OK CR 79,951 P.2d 651 |
| Decision Date | 17 December 1997 |
| Docket Number | No. F-95-834,F-95-834 |
| Parties | 1997 OK CR 79 Yancey Lyndell DOUGLAS, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
¶1 Appellant, Yancey Lyndell Douglas, was tried by jury and convicted of one count of Murder in the first degree (21 O.S.1991, § 701.7(A)) and one count of Shooting With Intent to Kill (21 O.S.Supp.1992, § 652) in the District Court of Oklahoma County, Case No. CF93-3926, the Honorable Virgil C. Black, District Judge, presiding. The jury found two (2) aggravating circumstances 1 and recommended death for the murder and life imprisonment for shooting with intent to kill. From this Judgment and Sentence, Appellant appeals. We affirm.
¶2 Late in the evening on June 24, 1993, Derrick Smith, a Southeast Village Crip gang member, escorted fourteen year old Shauna Farrow home after socializing at the Ambassador Court Apartments in southeast Oklahoma City. As they walked, Smith heard a car approach from behind and watched a gray Datsun two-door hatchback drive by, turn around and approach them driving 10-15 mph. Smith testified the car stopped, the driver's side door opened and Paris Powell, Appellant and an unidentified person(s) opened fire on them. Although he did not see a gun in Appellant's hand, Smith said he saw "fire" coming from Appellant's hand that he knew was gunfire. Smith was shot in the hip and Farrow was shot in the chest and died at the scene. After the gunfire ceased, Smith heard a voice he believed was Appellant's say, "fuck 'em" and the car drove away.
¶3 Smith admitted that he had been smoking marihuana and drinking alcohol while he was at the Ambassador Court Apartments that evening, but denied that he was so intoxicated that he could not identify the men who shot him. Smith admitted that he was carrying a .380 automatic weapon which he disposed of before the police arrived, but denied firing it at Powell and Appellant. Smith also maintained that he had not received any favorable treatment from the District Attorney's Office in exchange for his testimony. Smith surmised that the shooting was in retaliation for a prior killing in which a member of Appellant's gang, the 107 Hoover Crips, was killed by a member of Smith's gang.
¶4 Prior to the shooting several witnesses saw Appellant talking about committing a drive-by shooting with several other young men at Pitts Park, a park claimed by the 107 Hoover Crips. 2 As the group of boys disbanded, the girls saw Appellant get in the front passenger seat of a bluish/gray two-door hatchback car and fire a nine millimeter gun out the window. Three nine millimeter cartridge casings were found at the scene of the shooting. Lawrence Kuykendoll testified that Appellant brought Powell to his home in the early morning hours of June 25 because Powell had been shot in the hand and needed medical attention. Kuykendoll took Powell to the hospital and saw Appellant leave in a bluish two-door hatchback.
¶5 In his defense, Appellant called several witnesses who testified Smith had told them that he could not identify the shooters because it was either too dark or because he was too intoxicated. 3 Appellant also took the stand, against his attorney's advice, and denied any involvement in the shooting. Appellant claimed he was at his mother's selling crack cocaine to raise money to get his car out of the police impound lot and to pay his attorney in an unrelated case.
¶6 In his eighth proposition of error, Appellant argues the trial court improperly excused seventeen potential jurors for cause based on their opposition to the death penalty without first ascertaining whether these prospective jurors could set aside their personal objections and follow the law and the court's instructions. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
¶7 "The decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion whose decision will not be disturbed unless an abuse of discretion is shown." Salazar v. State, 919 P.2d 1120, 1127 (Okl.Cr.1996); Spears v. State, 900 P.2d 431, 437 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995). When this Court reviews the voir dire examination of potential jurors who are unclear or equivocal about their ability to consider the death penalty, we traditionally defer to the impressions of the trial court who can better assess whether a potential juror would be unable to fulfill his or her oath. Scott v. State, 891 P.2d 1283, 1289 (Okl.Cr.1995), cert. denied, 516 U.S. 1031, 116 S.Ct. 784, 133 L.Ed.2d 735 (1996). However, "[r]emoval for cause of even one venire member who has conscientious scruples against the death penalty but is nevertheless able to set aside those scruples and consider the penalty of death and is therefore eligible to serve on the jury is error of constitutional magnitude not subject to harmless error analysis." Scott, 891 P.2d at 1289; Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2057, 95 L.Ed.2d 622, 638 (1987).
¶8 During voir dire, the trial court asked prospective jurors substantially the same question, "[i]f selected as a juror and you find that the law and the evidence in this case warrant assessment of the death penalty, could you vote to assess the death penalty?" Fourteen of the seventeen prospective jurors of whom Appellant complains stated unequivocally that they could not assess the death penalty under any circumstances. The remaining three gave equivocal answers before stating unequivocally they could not consider the death penalty under any circumstances. By stating they could not consider the death penalty under any circumstances, the prospective jurors advised the trial court they could not put aside their beliefs and follow the law and the court's instructions. Because the proper inquiry was made by the trial court to determine whether prospective jurors could consider the death penalty, we find no error occurred when the trial court failed to further inquire after receiving unequivocal answers. See Scott, 891 P.2d at 1290.
¶9 Appellant also argues it was error for the trial court to excuse sua sponte these prospective jurors without a motion from the State. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Because Appellant did not object to the removal of the jurors without a motion from the State, he has waived all but plain error. The record shows the prospective jurors' views were such that they could not perform the duties of a juror in this case in accordance with the court's instructions or the oath of a juror and as such they were the proper subject of a challenge for cause. Accordingly, we find no plain error occurred when the trial court removed these jurors for cause without a motion from the State.
¶10 Lastly, Appellant argues the trial court erred in removing prospective juror Fundom for cause. As stated above the decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion whose decision will not be disturbed unless an abuse of discretion is shown. Salazar, 919 P.2d at 1127; Spears, 900 P.2d at 437. "To determine if the trial court properly ruled on a challenge for cause, this Court will review the entirety of the [prospective] juror's voir dire examination." Salazar, 919 P.2d at 1127. "To withstand a challenge for cause concerning punishment issues, a venireperson need only be willing to consider all the penalties provided by law and not be irrevocably committed to any one punishment option before the trial has begun." Id.
¶11 When asked if she could assess the death penalty if the law and the evidence warranted it, Fundom stated, Fundom then qualified her answer stating, "I believe I could, if I felt very strongly." When questioned by the State, Fundom continued to give equivocal answers to questions concerning her ability to consider the death penalty. When questioned by defense counsel, Fundom said she thought the death penalty would be appropriate for someone who "backs a truck up to the Federal Courthouse and blows it down and kills 30 or 40 babies." The trial court then asked:
Court: Okay. Do your feelings on the death penalty--would your feelings on the death penalty prevent or substantially impair you from the performance of your duty as a juror in accordance with the instructions that I would give you and the decisions you would have to make and after hearing the evidence?
Fundom: Could you repeat that, please?
...
Court: Do your views on the death penalty--would your views on the death penalty prevent or substantially impair you from doing your duty as a juror in this case?
Fundom: I guess it's possible.
Fundom: Right.
Court: Okay. Could you assess the death penalty in this case?
Fundom: When it came right down to it, I don't--I probably wouldn't be able to or I don't--I don't think I would be able to, no.
Court: Okay. Do you think your views on the death penalty would substantially impair you from--from reaching ...
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