Duckett v. State

Decision Date17 October 1995
Docket NumberNo. F-89-644,F-89-644
Citation919 P.2d 7,1995 OK CR 61
PartiesRobert Don DUCKETT, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

JOHNSON, Presiding Judge:

Robert Don Duckett, Appellant, was charged, tried and convicted of the crimes of Murder in the First Degree, Concealing Stolen Property and Larceny of an Automobile in the District Court of Oklahoma County, Case No. CRF-88-6248. The State filed a Bill of Particulars asking for the death penalty, and the jury found evidence of five aggravating circumstances: 1) that Mr. Duckett was previously convicted of a violent felony; 2) that the murder was especially heinous, atrocious or cruel; 3) that the murder was committed for the purpose of avoiding arrest or prosecution; 4) that the murder was committed while Mr. Duckett was serving a sentence of imprisonment; and 5) that Mr Duckett constituted a continuing threat to society. The jury set punishment at death, 25 years and 10 years imprisonment, respectively. The trial court sentenced accordingly with the sentences on the lesser counts to run concurrently. Appellant does not contest the validity of the convictions on the second and third counts.

Appellant raised thirty-two propositions of error. While we found several errors, none, singly or cumulatively, warrant reversal of the judgment or modification of the sentence. We affirm the judgment and sentence of death.

On October 18, 1988, John Howard was found dead in his apartment. He had been severely beaten with a fireplace poker and the wooden stand of an ashtray. His hands and feet were bound with wire from a hanger. There were blood stains and spatters in all rooms but the two bedrooms of the apartment. His keys and car were missing, and over $200.00 was missing from the convenience store where John was a manager.

A few weeks prior to this, John had befriended a young transient male, Appellant, and helped him to obtain employment at the State Fair. He later offered Appellant a job helping with odd jobs at the convenience store which he managed, and offered to let Appellant stay with him. The deceased was unaware that Appellant was an escapee from prison, who had been convicted of robbery by force.

On November 1, 1988, Appellant was arrested in Clear Creek, Arizona. He was driving John Howard's car at the time. He had switched the license plates on John's car with the plates of another car in the parking lot of the victim's apartment complex. Found in the trunk were a blood-stained jacket and Levis and the bank bags from the store.

During questioning by Oklahoma authorities, Appellant admitted that he and John had a fight where five or six blows were exchanged, but that when he left, John was on his feet and breathing. He further told authorities that he had only bound John's hands to keep him from coming after him. Being an escapee, he was also afraid that John was going to call the cops on him. He told authorities that he had been gang-raped in prison, and that he and Mr. Howard were fighting over a homosexual pass Mr. Howard made toward him.

The State's case consisted of evidence which proved an unprovoked attack by Appellant in order to rob Mr. Howard and a murder to prevent Mr. Howard from having Appellant arrested. There was evidence that the victim was beaten with a fireplace poker and the wooden stand from an ashtray. His ankle was broken and he had been struck at least 19 separate times. Among various other head wounds, his skull was fractured in numerous places and his left eye was ruptured and punctured. There were blood spatters both high and low on the walls, indicating that Appellant continued to beat him after he was on the ground and incapable of running away. Blood smears on the victim's jeans indicate that he either was trying to crawl away or was dragged through the blood. Blood spatters on the windows and the closed curtains indicate that Appellant beat the victim with the curtains open, and then continued to beat the victim after stopping to close the curtains. The victim's hands and feet were bound with wire, and he had, at one point, been gagged with a rolled up sock and a bandanna. While the medical examiner could not tell if the wires were added before or after the beating ended, Dr. Choi did testify that there were bruises under the wire. Appellant stole the victim's keys and robbed the convenience store where the victim worked. Appellant also changed the license plates on the victim's car with another car in the parking lot and stole the victim's car.

Other relevant facts will be discussed in the assignments of error to which they relate.


In his first assignment of error, Appellant asserts he was denied effective assistance of counsel by the trial court's refusal to grant his attorney's request for a continuance. This case was set for trial on June 19, 1989. On June 2, 1989, the prosecution filed its bifurcated witness list distinguishing between first and second stage witnesses, endorsing 56 and 73 witnesses, respectively. Defense counsel moved for a continuance, which was denied. On June 5, 1989, the State provided defense counsel with second stage evidence summaries, and on June 14, 1989, the prosecution filed two amended witness lists, increasing the number of witnesses to 57 (first stage) and 74 (second stage). Defense counsel again moved for a continuance due to his inability to contact witnesses. On June 16, 1989, this motion was also denied.

Appellant contends that his rights to effective assistance of counsel were hampered by the excessiveness of the witness lists because his counsel was unable to contact all the people on the list in such a short period of time. Appellant further contends that defense counsel was also hampered by not knowing exactly which witnesses would be called during trial, therefore, spreading his resources too thin to effectively defend his client.

To show ineffective assistance of counsel, a defendant must meet the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, he must show that the performance of trial counsel was deficient. That is, that trial counsel was not really acting as "counsel" at all, that his representation was unreasonable under prevailing professional norms, and that the challenged action could not be considered sound trial strategy. Second, a defendant must show that trial counsel's performance prejudiced him and the outcome of the case. Any showing that the outcome would have been different is sufficient. Fisher v. State, 736 P.2d 1003, 1011-1012 (Okl.Cr.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988).

Here, Appellant did not show that he was unduly prejudiced by any of the testimony of the State's witnesses. There is nothing to show that a more extensive investigation would have helped his defense. As to the first stage, of the 17 witnesses called by the state, three (3) were not listed on the original Information. They were on the June 2nd list, thus giving defense counsel adequate time to investigate before trial.

As for the second stage of trial, Appellant also fails to show how he was prejudiced or unprepared for trial. Of the 74 names on the second-stage witness list, six were called. Of those six, one witness, David Britten, lived out of state. Counsel was allowed to interview David Britten prior to the second-stage of trial. Appellant has failed to show that he was unprepared to cross-examine any of these witnesses.

Where defense counsel is surprised at such action, he should withdraw his announcement of ready for trial and file a motion for postponement or continuance, in which he should set out the facts constituting such surprise and the other evidence, if any, he could produce to rebut the testimony of such additional witnesses if the trial of the case is continued. Where he fails to do this, the error, if any, is waived. Jones v. State, 542 P.2d 1316, 1324 (Okl.Cr.1975). In this case, there was no showing of surprise by defense counsel. We note that it is the policy of the Oklahoma County District Attorney's office to have an open file policy. This argument is without merit.


In his third assignment of error, Appellant claims that the trial court excused for cause Juror Weaver who, although against the death penalty, agreed to be fair and follow the law, while refusing to excuse Juror Hodge, who expressly admitted his inability to follow the law. We do not agree with Appellant's assessment of the trial court's actions. After much effort to determine Juror Weaver's ability to follow the law, the following ensued:

THE COURT: What you're telling me is you cannot divorce yourself from the individual to become that of the voice of the State of Oklahoma; is that right?

JUROR WEAVER: I think so.

MR. GEER: And, you could follow the law that the Judge gives you.

JUROR WEAVER: Except for in the case of the death penalty, I'm not too sure.

In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-852 (1985), the Supreme Court held that the test for whether a juror has been properly excused is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Applying this standard to Juror Weaver's responses, he was properly excused. He clearly indicated his inability to follow the law that was...

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