Grant v. State, D 2000-653.

Citation58 P.3d 783,2002 OK CR 36
Decision Date18 November 2002
Docket NumberNo. D 2000-653.,D 2000-653.
PartiesJohn Marion GRANT, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

James Bowen, Amy McTeer, Indigent Defense System, Capital Trial Division, Sapulpa, OK, Attorneys for Defendant at trial.

Larry Stuart, District Attorney, Keith Sims, Assistant District Attorney, Pawhuska, OK, Attorneys for the State at trial.

William H. Luker, Sandra Mulair Cinnamon, James Lockard, Appellate Defense Counsel, Capital Direct Appeals Division, Indigent Defense System, Norman, OK, Attorneys for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Assistant Attorney General, Oklahoma City, OK, attorneys for Appellee on Appeal.

OPINION

LILE, Judge.

¶ 1 Appellant, John Marion Grant, an inmate at the Oklahoma Department of Corrections (D.O.C.) Connor Correctional Center, was charged with the First Degree (malice) Murder1 of D.O.C. employee Gay L. Carter in Osage County District Court, Case No. CF-99-28.2 The State filed a Bill of Particulars alleging three aggravating circumstances: "The defendant was previously convicted of a felony involving the use or threat of violence to the person;" "The murder was committed by a person while serving a sentence of imprisonment on conviction of a felony;" and "The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."3 A jury trial was held before the Honorable J.R. Pearman, District Judge. The jury found Grant guilty as charged, found the existence of the three aggravating circumstances, and set punishment at Death.

I. FACTS

¶ 2 On November 13, 1998, Grant savagely and repeatedly stabbed Gay Carter, a food service supervisor at the Connor Correction Center in Hominy, Oklahoma. Grant used a prison-made "shank" similar to a sharpened screwdriver. Grant was serving a total of one-hundred thirty (130) years for four separate armed robberies and had been in prison for about twenty years prior to this offense. On a previous stay at Connor Correctional Center, Grant had worked in the kitchen and he knew Carter; however, Grant lost this job because he was fighting with another inmate.

¶ 3 The morning of and the morning before this murder, Grant and Carter argued over the breakfast tray served to Grant. The previous morning Grant told Carter, "I'll get you bitch," and the morning of the murder Grant stated, "Your mine." Inmates Jerry James and Ronald Kuykendall, who held jobs in the dining area, witnessed these arguments.

¶ 4 After the last argument, James and Kuykendall saw Grant loitering in a storage area where cleaning supplies were kept, adjacent to the main dining area. Carter left the dining area to go to another building where the kitchen was located. When she returned, Grant grabbed her and pulled her into a mop closet. Inside the closet, Grant stabbed Carter numerous times in the chest while holding her mouth closed.

¶ 5 Witnesses summoned Sergeant Daniel Gomez, the first Correctional Officer to arrive. Gomez saw Grant still struggling with Carter. Grant then stood up and faced Gomez, looked at him with a vacant stare, and ran across the dining hall to the storage room, while still carrying the shank in his hand. Grant shut the door, closing himself inside.

¶ 6 After Grant left the mop closet, medical personnel arrived to aid Carter. They found that she was not breathing, and they could not find any vital signs. Carter was transported to the hospital, but efforts to revive her were unsuccessful. Medical Examiner Robert Hemphill determined that Carter died as a result of sixteen stab wounds. Carter's aorta was punctured, causing rapid blood loss resulting in her death.

¶ 7 The storage room to where Grant fled, has a wire mesh ceiling through which Correctional Officer Tony Reeves observed Grant. Grant ignored orders to lie down on the floor. Grant held the shank to his chest and ran into the wall, apparently in an attempt to stab himself. A special team of correctional officers entered the storage room and Grant made stabbing motions toward the officers. The officers were able to subdue Grant with the use of an electrical shock device.

¶ 8 Grant raises fifteen propositions of error in his appeal. These propositions will be addressed as they arose at trial.

II. JURY SELECTION ISSUES
A.

¶ 9 Grant claims, in his first proposition, that the trial court committed reversible error by improperly denying his challenges for cause against two jurors who expressed a reluctance to consider all three punishment options. He claims that he was forced to accept other objectionable jurors because he had to use his peremptory challenges to remove these two jurors that should have been removed for cause.

¶ 10 We begin with the basic premise that the decision to excuse a prospective juror for cause rests within the sound discretion of the trial judge, whose decision will not be overturned unless an abuse of discretion is shown. Myers v. State, 2000 OK CR 25, ¶ 6, 17 P.3d 1021, 1026, cert. denied, 534 U.S. 900, 122 S.Ct. 228, 151 L.Ed.2d 163 (2001). This Court will review the prospective juror's entire voir dire examination to determine if the trial court made the proper discretionary decision. Id. A prospective juror must be willing to consider all the penalties provided by law, and the juror must not be irrevocably committed to any one punishment before trial has begun. Myers, 2000 OK CR 25, ¶ 6, 17 P.3d at 1026-1027. ¶ 11 Grant specifically claims that he lost two peremptory challenges because the trial court wrongfully denied his for-cause challenges to jurors Gee and Martin. Grant does not claim that jurors who were strongly biased toward the death penalty were allowed to sit on the jury. He claims that jurors Gee and Martin were unwilling to consider one or both of the two "non-death" punishment options. In Oklahoma, a defendant who disagrees with the trial court's refusal to remove a juror "for cause" must utilize a peremptory challenge in order to preserve his claim on appeal. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

¶ 12 Furthermore, a defendant must show that the jury sitting in the trial was biased, because he exhausted his peremptory challenges by being forced to remove those that should have been removed for cause. Abshier v. State, 2001 OK CR 13, ¶¶ 113-14, 28 P.3d 579, 603-04, cert. denied, 535 U.S. 991, 122 S.Ct. 1548, 152 L.Ed.2d 472 (2002); also see Ross v. State, 1986 OK CR 49, ¶ 11, 717 P.2d 117, 120,

aff'd sub nom Ross v. Oklahoma,

487 U.S. 81,

108 S.Ct. 2273,

101 L.Ed.2d 80 (1988).

"Trial judges enjoy `broad discretion in deciding which members of the venire possess actual bias and should be excused for cause.' Warner [v. State,] 2001 OK CR 11, ¶ 6, 29 P.3d [569] at 572. However, in ruling on challenges for cause, all doubts regarding juror impartiality must be resolved in favor of the accused, who need not prove a juror's bias in favor of the death penalty with unmistakable clarity. Warner, 2001 OK CR 11, at ¶¶ 6 & 8, 29 P.3d at 572, 573. This means trial courts should consider the entirety of a prospective juror's voir dire to determine if their expressed feelings favoring the death penalty would prevent or substantially impair their performance as a juror. Warner, 2001 OK CR 11, ¶ 8, 29 P.3d at 573. On appeal, this Court will not grant relief based on the improper denial of a challenge for cause unless the record affirmatively shows that the erroneous ruling reduced the number of the appellant's peremptory challenges to his prejudice and he must demonstrate that he was forced, over objection, to keep an unacceptable juror. Warner, 2001 OK CR 11, ¶ 10, 29 P.3d at 573-74."

Matthews v. State, 2002 OK CR 16, ¶ 16, 45 P.3d 907, 915.

¶ 13 Initially prospective juror Gee stated that if it were proven that the murder was "premeditated or planned" he would vote for the death penalty. After questioning by the prosecutor and the trial court, Gee insisted that he would follow the Court's instructions and consider all three sentencing options. Then defense counsel resumed questioning Gee by presenting the hypothetical that "the State has proven to you that he [Grant] intended to kill this woman, that he either thought about it for days or he just thought about it and did it, but he intended to kill this woman for no good reason . . . without hearing another thing, would you automatically give him the death penalty?" Gee replied that he would have to think about that one. After given the opportunity to think, Gee replied, "Yes." Defense counsel then started to ask about instructions by the judge and Gee interrupted the questions and stated, "I would go by his instructions." Gee admitted that he was nervous and that he got confused. He stated that he would weigh the evidence and give it his best shot.

¶ 14 Prospective Juror Martin initially stated that he would consider all three sentencing options. When defense counsel asked Martin what the appropriate punishment would be for someone that committed intentional murder, Martin responded that he "wouldn't go less than life without parole." After the prosecution explained the procedure during a punishment stage, Martin gave assurances that he would consider all three punishment options. Even after further questioning by defense counsel, Martin stated that he changed his mind and that he would even consider a life sentence for an intentional murder. Clearly the trial court did not abuse its discretion in failing to remove Martin.

¶ 15 The harder issue is whether the trial court abused its discretion in failing to remove Gee. However, Grant has not shown that the arguably erroneous ruling reduced the number of his peremptory challenges to his prejudice, and he has not shown that he was forced, over objection, to keep an...

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