Fox v. State

• Decision Date: 30 August 1989
• Docket Number: No. F-86-511,F-86-511
• Citation: 1989 OK CR 51,779 P.2d 562
• Parties: Billy Ray FOX, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 562

779 P.2d 562

Billy Ray FOX, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-511.

Court of Criminal Appeals of Oklahoma.

Aug. 30, 1989.

Rehearing Denied Oct. 2, 1989.

An appeal from the District Court of Oklahoma County; David M. Cook, District Judge.

Billy Ray Fox, appellant, was convicted in Oklahoma County District Court of three counts of Murder in the First Degree, Case No. CRF-85-3343, and was given three sentences of the death penalty. Judgments and sentences are AFFIRMED.

Robert Ravitz, Oklahoma County Public Defender, Opio Toure, Pete Gelvin, Asst. Public Defenders, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Billy Ray Fox, appellant, was convicted in Oklahoma County District Court of three counts of Murder in the First Degree while in the commission of Robbery with a Dangerous Weapon, pursuant to the felony-murder doctrine codified at 21 O.S.1981, § 701.7(B). He was tried before a jury and punishment was set at death on each count. The trial court sentenced him accordingly.

Between 3:15 a.m. and 3:53 a.m. on the morning of July 3, 1985, three employees of the Wynn's I.G.A. grocery store in Edmond, Oklahoma, were murdered while on duty. Cash in the amount of $1,200.00 and checks totalling $1,500.00 were taken from the store. The three employees were killed in the back room of the store. Two of them, Rick Cast and Chumpon Chaowasin, died from single gunshot wounds to their heads. The third, John Barrier, died from being stabbed numerous times in the neck, chest, back and side, as well as from being bludgeoned on the back of his head with a shotgun.

At approximately 2:30 a.m. on July 3, 1985, Fox and his codefendant, Mark Fowler, had gone to the bedrooms of Fox's two roommates and asked to borrow a shotgun from each. When Fox returned home later that morning, he confessed to one roommate that he had killed some people. Afterwards, as a news broadcast of the killings appeared on the television, Fox admitted that that was what he had done.

Both defendants were arrested on the evening of July 3. Appellant was arrested as he approached his pickup, the same vehicle in which he had traveled to and from the grocery store. When two police officers appeared, appellant handed a companion a wad of cash. In the bed of the truck, the police found bloody splinters from the broken stock of a shotgun, together with the gun's forestock and two shell casings. The following morning, Fox made a statement to police detectives and led them to a white purse which contained some checks that had been taken from the IGA during the robbery. He also told the officers where in his home they could find a knife that he had hidden. The knife later proved to be consistent with the cause of Barrier's wounds. The barrel of the shotgun was found in some debris in Fox's yard.

Both Fox and Fowler admitted to police officers that they had gone to the grocery store to commit the robbery, but each denied committing or participating in the homicides.

I

Appellant's first assignment of error is that he was denied a fair trial through the systematic exclusion of "minorities" from the jury. He summarizes this contention by asserting "[t]he trial court committed reversible error by refusing to allow appellant an opportunity to produce the 'records' of the jury panel, the number of minorities in the panel on May 5, 1986." To the motion, appellant's counsel attached the affidavit of another attorney practicing in Oklahoma County stating that while "minorities" constituted seventeen percent of the population of the county, he believed that they represented only five percent of those called for jury duty. Defense counsel requested that the jury clerk be ordered to count the number of people who appeared for jury duty who physically appeared to represent a minority. The trial court denied the request. For the following reasons, we do not agree that appellant was denied a fair trial by the systematic exclusion of minorities or that the trial court erred by not requiring a count of apparent minorities.

The United States Supreme Court held in Hernandez v. Texas, 347 U.S. 475, 477, 74 S.Ct. 667, 670, 98 L.Ed. 866 (1954), that "it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury.... from which all persons of his race or color have, solely because of that race or color, been excluded by the State...." When a defendant asserts this form of denial of equal protection, he must show that the procedures used to call his jury "resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or applied." Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) (citing Hernandez ).

"Minorities" is not a recognizable, distinct class. Appellant does assert that he is half Asian, his mother being Polynesian/Hawaiian. However, we cannot say that even this group is a recognizable, distinct class which could be singled out for different treatment in Oklahoma County. According to the 1980 U.S. Census, Asians constituted .99 percent of its population. The group to which appellant belongs is not sufficiently numerous to form a distinct class. Because the appellant failed to reach the first step in establishing systematic exclusion of his group, the trial court was under no obligation to provide appellant the "records" of the jury panel.

At the hearing on appellant's pretrial motion, the Oklahoma County Election Secretary was called to testify as to the procedures utilized in registering voters in the county. The local jury clerk also described how names of all registered voters in the county were entered into a computer and then randomly withdrawn for petit juries. It was clear that the procedure set forth in the Oklahoma Statutes for calling jurors, 38 O.S.Supp.1985, § 18, was followed and that it was racially neutral and not susceptible to abuse. The method qualified any registered voter to be called as a grand or petit juror. Thus, had appellant made a prima facie case of discriminatory purpose by showing substantial underrepresentation of his group, the State would have easily rebutted it. Castaneda, 430 U.S. at 494, 97 S.Ct. at 1280. Accordingly, this assignment of error is without merit.

II

Appellant's second assignment of error is that he was denied a jury representing a fair cross section of the community because 38 O.S.1981, § 28(A), allows jurors seventy years of age or above to opt out of jury service. We have previously discussed this issue and are unpersuaded to change our holding that this exemption from jury service does not exclude a sufficiently numerous and distinct group. Moore v. State, 736 P.2d 161, 165 (Okla.Crim.App.1987), cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987). Appellant did not demonstrate that representation of this group in venires is not fair and reasonable in relation to the number of such people in the community. Id. Furthermore we find the exemption to be reasonable in light of the increasing rate of physical infirmities incurred by senior citizens and the resulting hardships if lengthy jury service is required. The Supreme Court held in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), that the fair cross section principle must offer much leeway and allow for relevant qualifications for jurors as well as reasonable exemptions. ¹

III

Appellant urged in a pretrial motion for change of venue that he could not receive a fair trial in Oklahoma County due to extensive pretrial publicity. He contends that the voir dire examination at trial showed that it was impossible for a truly fair and impartial jury to be seated in his case. We disagree with this conclusion.

While it is true that most of the venire had read or heard media accounts of the robbery/homicides, none of those serving on appellant's jury had formulated an opinion of his guilt or innocence. In fact, during voir dire, the one individual that had formed an opinion was excused for cause. Another had heard in the media that each codefendant had placed the blame for the homicides on the other, and was also excused for cause.

The trial judge voir dired at the bench and out of hearing of the others, each venireman who had learned of the case from the media. Thus, he carefully prevented the venire from being contaminated by information others had acquired from the media while at the same time allowing each venireman to disclose his or her own knowledge and opinion. We are satisfied that this procedure adequately allowed thorough inquiry into the veniremen's knowledge and opinions acquired from media accounts and ensured that those who sat on the jury could impartially and fairly judge appellant on the evidence presented at trial. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Walker v. State, 723 P.2d 273, 278 (Okla.Crim.App.1986); Moore v. State, 672 P.2d 1175, 1177 (Okla.Crim.App.1983).

We cannot say on the record before this Court that the jury that tried the appellant was unfairly prejudiced against him because of the media coverage of his case or that there was a deep pattern of prejudice throughout the community. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). This assignment is without merit.

IV

Appellant next asserts that the trial court committed reversible error in not severing his trial from his codefendant's trial because of their mutually antagonistic defenses. He claims that their defenses pitted them against one another because each sought to blame the homicides on the other.

In statements made to the police, each defendant...