Fontenot v. State, F-88-571

• Decision Date: 08 June 1994
• Docket Number: No. F-88-571,F-88-571
• Citation: 1994 OK CR 42,881 P.2d 69
• Parties: Karl Allen FONTENOT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 69

881 P.2d 69

Karl Allen FONTENOT, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-88-571.

Court of Criminal Appeals of Oklahoma.

June 8, 1994.

Petition for Rehearing Denied and

Mandate Ordered Issued

Sept. 30, 1994.

An Appeal from the District Court of Hughes County; Donald E. Powers, District Judge.

Karl Allen Fontenot was convicted of First Degree Murder, Kidnapping and Robbery with a Dangerous Weapon in the District Court of Hughes County, Case No. CRF-88-43, sentenced to death, ten years imprisonment and twenty years imprisonment, respectively, and appeals. The Judgments and Sentences for Kidnapping and Robbery are AFFIRMED. The conviction for First Degree Murder is AFFIRMED, but the sentence of death is VACATED and the cause is REMANDED for RESENTENCING.

George Butner, Wewoka, trial counsel for appellant.

Cindy G. Brown, Asst. Appellate Indigent Defender, Norman, appellate counsel for appellant.

William Peterson, Dist. Atty., Chris Ross & Linda G. Evans, Asst. Dist. Attys., Ada, trial counsel for appellee.

Susan B. Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, appellate counsel for appellee.

OPINION

CHAPEL, Judge:

Karl Allen Fontenot was tried by jury and convicted of First Degree Malice Aforethought Murder (21 O.S.Supp.1982 § 701.7) (Count III), Kidnapping (21 O.S.1981, § 741) (Count II) and Robbery with a Dangerous Weapon (21 O.S.Supp.1982, § 801) (Count I), in Hughes County District Court, Case No. CRF-88-43, before the Honorable Donald E. Powers, District Judge. Fontenot received a twenty year prison sentence for the robbery conviction and a ten year prison sentence for the kidnapping conviction. The jury found three aggravating circumstances and sentenced Fontenot to death for the murder conviction. We affirm all counts, but must remand ¹ the murder conviction for resentencing to afford Fontenot the "life without parole" jury instruction to which he is entitled. ²

The facts surrounding the abduction and murder of Donna Harraway are set forth generally in Fontenot v. State, 742 P.2d 31 (Okl.Cr.1987). In that opinion, this Court reversed Fontenot's first set of convictions and remanded for a new trial. ³ The present appeal is from the convictions obtained against Fontenot during his second trial. Any additional facts implicated in this appeal will be set forth in the discussion of those propositions to which they relate.

ISSUES RELATING TO JURY SELECTION

In his eighteenth proposition, Fontenot claims that the trial judge erred in denying his pretrial motion to have the jury panel individually voir dired. He argues that the history of the case, the large number of venirepersons subject to pretrial publicity and the special scrutiny required in capital cases merited individual voir dire. We disagree.

This Court has consistently held that there is no right to individual voir dire. See Trice v. State, 853 P.2d 203, 209 (Okl.Cr.1993); Douma v. State, 749 P.2d 1163, 1165 (Okl.Cr.1988). Whether to grant a motion for individual voir dire is a decision resting within the trial judge's sound discretion. See Trice, supra at 209. See also Brown v. State, 743 P.2d 133, 137 (Okl.Cr.1987). Fontenot has not demonstrated an abuse of discretion. Accordingly, this proposition is denied.

ISSUES RELATING TO GUILT/INNOCENCE

Fontenot argues in his first proposition that his confession was not voluntary and should therefore have been suppressed. He claims that the police used improper and coercive interrogation techniques to exploit his mental deficiencies. According to Fontenot, his explicit waiver of Miranda ⁴ rights and subsequent confession was no more than the product of police exploitation of his low mental capability. We disagree.

The ultimate test of the voluntariness of a confession is whether it is the product of an essentially free and unconstrained choice by its maker. See Crawford v. State, 840 P.2d 627, 635 (Okl.Cr.1992), citing Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). A confession is involuntary or coerced if the "totality of the circumstances" demonstrates that the confessor did not freely decide to give the statement. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Under the totality of the circumstances approach, both the characteristics of the accused and the details of the interrogation are considered. Turner v. State, 803 P.2d 1152, 1158 (Okl.Cr.1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2859, 115 L.Ed.2d 1026 (1991), citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Fontenot cites the testimony of Dr. Sandra Petrick, a clinical psychologist, and Dr. Joel Dryer, a psychiatrist, as evidence of his mental deficiencies. Dr. Petrick had interviewed Fontenot on May 17, 1985, for the limited purpose of determining whether he was competent to stand trial. ⁵ She concluded that he was. During the second trial, which is the subject of the present appeal, defense counsel asked Dr. Petrick questions about her session with Fontenot. Based upon the information she had obtained, she could not offer a conclusive opinion on whether Fontenot could have knowingly and voluntarily waived his Miranda rights prior to his confession.

Defense counsel also questioned Dr. Petrick about some additions she made to her original report, in which she initially concluded Fontenot was competent to stand trial. While her competency determination was unconditional, Dr. Petrick also mentioned that Fontenot might need assistance in understanding legal terminology. ⁶ After the first trial in August of 1986, Dr. Petrick generated a supplemental competency report in response to Fontenot's then appellate counsel. She stated in that report that Fontenot had been competent to stand trial but added the stipulation "that he receive assistance in the area of legal terminology." Dr. Petrick also stated in this supplemental report that Fontenot did not understand the implications of a confession when he was arrested. During the second trial, Dr. Petrick testified that she did not consider these additions to be changes in her original report, but merely detailed elaborations on conclusions already reached.

Dr. Joel Dryer evaluated Fontenot on May 23, 1988, just prior to the second trial, at defense counsel's request. Dr. Dryer ultimately concluded that Fontenot suffered from "post-traumatic stress disorder," but that he did not kill Donna Harraway. This conclusion was based in part on his review of a psychological report written by a doctor who had analyzed Fontenot when he was six years old. Dr. Dryer also obtained information about Fontenot's mother. Fontenot witnessed and apparently felt responsible for his mother's death. According to Dr. Dryer, Fontenot wanted to die. Dr. Dryer concluded that Fontenot's guilt and death wish, coupled with his loneliness and desire for attention, caused Fontenot falsely to confess to the murder of Donna Harraway.

Fontenot claims that the testimony of Drs. Petrick and Dryer, the testimony of witnesses who stated that he was prone to exaggeration, and the fact that he was a twenty year old with a twelfth grade education, together support his claim that he was incapable of giving a knowing and voluntary confession. Even if we were to find Fontenot's mental condition to be a significant factor in the voluntariness calculation, the dispositive inquiry is whether police misconduct contributed to the confession. See Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986). We therefore turn to Fontenot's allegations of improper interrogation techniques.

An officer read the Miranda warnings to Fontenot at the beginning of his October 19, 1984, videotaped confession. Fontenot stated that he understood his rights and agreed to talk to the police. Agent Gary Rogers then asked Fontenot if he was giving the statement freely and voluntarily; Fontenot stated that he was.

Agent Rogers and Captain Dennis Smith were present during the interrogation. They each acknowledged that the videotaping did not commence until almost two hours after Fontenot had entered the police station. Both Rogers and Smith also testified that during this two hour time period, they did not supply Fontenot with any of the information surrounding the death of Mrs. Harraway, other than to tell Fontenot that Tommy Ward had confessed and implicated him. Rogers and Smith also denied ever threatening or coercing Fontenot in any manner.

Fontenot claims that to fully appreciate the degree of police misconduct to which he was subjected, we must consider three other instances of separate but related improper police behavior toward other people involved in the case. First, Fontenot offers the circumstances surrounding Tommy Ward's confession. However, the evidence allegedly supporting these claims is contained in the transcripts from the first trial, which is not at issue here. Because there is no evidence in the record now before this Court to support these particular claims, we will not address them.

As his second argument in support of police misconduct, Fontenot points to the manner in which the police allegedly interrogated former suspect and defendant Odell Titsworth. ⁷ Fontenot claims that during Titsworth's three or four interrogation sessions, Captain Smith and Detective Mike Baskin repeatedly fed him facts about the Harraway case. However, when asked during preliminary hearing whether he had learned facts about the case from these officers, Titsworth initially replied "Not really." P.Hrg.Tr. 809. Titsworth later contradicted himself, stating that the officers had told him facts about the crimes which he did not already know.

Finally, Fontenot describes two instances of police misconduct directed toward him after his confession and argues that these incidents are indicative of their mistreatment of him during the confession. ⁸ The first involved Titsworth. Captain...