Freeman v. State, F-93-345

• Decision Date: 27 May 1994
• Docket Number: No. F-93-345,F-93-345
• Citation: 876 P.2d 283,1994 OK CR 37
• Parties: Jerry FREEMAN, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 283

876 P.2d 283

Jerry FREEMAN, Appellant, v. STATE of Oklahoma, Appellee.

No. F-93-345.

Court of Criminal Appeals of Oklahoma.

May 27, 1994.

An Appeal from the District Court of Oklahoma County; Niles Jackson, District Judge.

Jerry Freeman, Appellant, was tried by jury for the crime of Murder in the first degree while in the commission of Robbery with a dangerous weapon, in Case No. CRF-91-3560 in the District Court of Oklahoma County before the Honorable Niles Jackson. The jury found Appellant guilty of first degree murder in violation of 21 O.S.1991, § 701.7(B), and the jury recommended punishment of life without parole. The trial court sentenced Appellant accordingly. From this Judgment and Sentence, Appellant appeals. AFFIRMED.

Carolyn L. Merritt, Asst. Public Defender, Oklahoma County Public Defender's Office, Oklahoma City, OK, for appellant.

Susan Brimer Loving, Atty. Gen., Luke Simms, Asst. Atty. Gen., Oklahoma City, OK, for appellee.

OPINION

STRUBHAR, Judge:

Appellant, Jerry Freeman, was tried by jury for the crime of Murder in the first degree while in the commission of Robbery with a dangerous weapon, in violation of 21 O.S.1991, § 701.7(B), in the District Court of Oklahoma County, Case No. CF-91-3560. The jury found Appellant guilty of Murder in the first degree and recommended punishment of life without parole. The trial court sentenced Appellant accordingly. From this judgment and sentence Appellant perfected his appeal to this Court.

On June 19, 1991 Kathy Belden and Kelley Hendrix went to the Yucatan Liquor Stand in Oklahoma City. As they exited their car Belden noticed two men approaching and told Hendrix, "Here comes two black guys walking down this way." Hendrix and Belden decided to put their purses in the trunk of the car and hurry into the Yucatan. As they were standing at the trunk one of the men stopped while the other continued toward the car, pointed a gun at them and yelled "Move." Hendrix complied and moved to the side of the car, but Belden remained there holding the trunk open. The man repeated his demand to move. Hendrix moved and went to the front of the vehicle while Belden again failed to move. Finally, the man yelled "Move bitch" and walked up to the trunk. Suddenly, the trunk lid fell down on both Belden and her assailant and a gunshot was fired. Belden was mortally wounded by a gunshot to the right temple. The man opened the trunk lid and Belden fell to the ground. The two men fled into a wooded area. Later, Hendrix discovered that their purses were missing.

At trial Hendrix identified Appellant as the man who ordered them to move, pointed a gun at them and approached Belden at the trunk. Hendrix also identified a photograph of Appellant, wearing the same clothing he wore that evening, holding a baggie of Belden's jewelry she kept in her purse.

David Hooten testified that he saw an older model bluish green four door car with extensive body damage containing four or five black males with short hair in the Yucatan parking lot that evening. He noticed the car because it stopped suddenly in front of him with no brake lights. Greg Hix saw a similar car screeching out of the Lakeshore Mall parking lot across the street from the Yucatan around 9:50 p.m.

A few days later Hooten notified the police that he saw a similar car in the area of N.W. 24th and Western. Detective Terhune, of the Oklahoma City police department, responded and located the 1966 Malibu four door at N.W. 24th and Dewey. People in that neighborhood advised Detective Terhune that the car belonged to Robert Snowball. The following day Robert Snowball was interviewed and arrest warrants were issued for Appellant, Gerald Brown, Lee Gray and Cy Rich. ¹ Belden and Hendrix's purses were recovered from a dump near the home of Gerald Brown's mother. The purses had been partially burned and submerged in water. However, many forms of identification remained intact.

Nineteen latent fingerprints were recovered from the trunk area of Hendrix's car on June 19. Karen Smith, a fingerprint expert, testified that one set of fingerprints matched Appellant's left index, middle and ring fingers. None of the prints recovered matched any other co-defendant.

Appellant presented no witnesses in his defense during the first stage of the trial. At the second stage of trial, the State alleged the existence of two aggravating circumstances: (1) the murder was committed to avoid arrest or prosecution; and (2) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. See 21 O.S.1991, Sec. 701.12(5) & (7). The State produced evidence that Appellant shot Chris Henderson in an unrelated incident two weeks prior to the Yucatan murder. Appellant's cellmate, Gerald Olden, testified Appellant admitted shooting Chris Henderson and Kathy Belden with the same gun. Olden said Appellant was only worried about his fingerprints being found on Hendrix's car. In support of the continuing threat aggravator Olden claimed Appellant made weapons out of pencils and shot them at other inmates. Olden also claimed Appellant threatened to harm him if he testified. In mitigation, Appellant's family testified that he was nineteen years old, a good son and a good father to his three year old little girl. Jerry Freeman, Sr., Appellant's father, testified extensively concerning the tragic murders of Appellant's cousin and best friend witnessed by Appellant. Dr. John Smith, a psychiatrist, testified that Appellant was not likely to commit murder in the future. Appellant's psychological profile indicated he could function well in prison and learn from his experience. All family members testified that Appellant was of benefit to them and asked the jury to spare his life. The jury found the existence of only the "continuing threat" aggravating circumstance.

In his first assignment of error Appellant asserts that the trial court erred in refusing to instruct the jury on second degree murder and first degree manslaughter. ² Appellant contends that the evidence was "undisputed that the shooting was the result of the trunk lid falling on Appellant and Belden, throwing them into the trunk, and causing the gun to discharge". (Brief at p. 12) Appellant argues since there was no evidence that he intended to kill or rob Belden, second degree "depraved mind" murder and first degree manslaughter instructions were warranted. We disagree.

Trial courts should instruct the jury on every degree of homicide where the evidence would permit the jury rationally to find the accused guilty of the lesser offense and acquit him of the greater. Boyd v. State, 839 P.2d 1363, 1367 (Okl.Cr.1992), cert. denied, 509 U.S. 908, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1993); Fowler v. State, 779 P.2d 580, 585 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990); Lee v. State, 700 P.2d 1017, 1019 (Okl.Cr.1985). However, lesser included offense instructions should only be given when the evidence presented warrants such an instruction. Id., Hale v. State, 750 P.2d 130, 136 (Okl.Cr.1988), cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988); Foster v. State, 714 P.2d 1031, 1039 (Okl.Cr.1986), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986). It is the duty of the trial court to determine as a matter of law whether the evidence presented is sufficient to warrant the submission of instructions on a lesser included offense to the jury. Id., Williams v. State, 807 P.2d 271, 275 (Okl.Cr.1991); James v. State, 736 P.2d 541, 545 (Okl.Cr.1987), cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987). To be entitled to instructions on Murder in the second degree or First Degree Manslaughter, the trial court must find that sufficient evidence was presented to support the conclusion that the homicide was perpetrated without a design to effect death. Id., See also, 21 O.S.1991, §§ 701.8(1) and 711(2).

The evidence presented in the instant case was that Appellant approached Hendrix and Belden as they were putting their purses in the trunk, pointed a gun at them and demanded that they move away from their purses. When Belden did not move, Appellant moved toward her. The trunk lid fell and Appellant shot Belden while they were bent over in the trunk. No one observed why the trunk lid fell. Appellant then stole Belden and Hendrix's purses and fled with another man into a wooded area.

We do not agree that this evidence supports instructions that Appellant's acts were "without any premeditated design to effect death." 21 O.S.1991, §§ 701.8 and 711(2). Direct evidence of intent to commit crimes is oftentimes lacking. Foster v. State, 714 P.2d at 1039-40. Consequently, we must rely on circumstantial evidence to determine with what purpose a person acted. Id. The circumstantial evidence in this case compels the finding that Appellant intended to rob Belden and that he was clearly engaged in the commission of that felony at the time of her death. The law infers a design to effect death from the fact of killing unless the circumstances raise a reasonable doubt whether such design existed. 21 O.S.1991, § 702. Moreover, a design to effect death sufficient to constitute murder can be formed in an instant. 21 O.S.1991, § 703. In felony murder prosecutions the underlying felony suffices as proof of intent to take away human life so that Appellant's premeditated design to effect death was proven when the State established his intent to rob Belden. McAlpine v. State, 634 P.2d 747, 749 (Okl.Cr.1981); Wade v. State, 581 P.2d 914, 916 (Okl.Cr.1978).

We have held that where there is no evidence to support a lower degree of the crime charged or lesser included offense, it is not only unnecessary to instruct thereon, but the court has no right to ask the jury to consider the issue. Boyd v. State, 839 P.2d at 1367-68; Bennett v. State, 743 P.2d 1096, 1098 (Okl.Cr.1987); ...