Harmon v. State

• Decision Date: 01 April 2011
• Docket Number: No. D–2008–657.,D–2008–657.
• Citation: 2011 OK CR 6,248 P.3d 918
• Parties: Marlon Dean HARMON, Appellant,v.STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

248 P.3d 918

2011 OK CR 6

Marlon Dean HARMON, Appellant,

v.STATE of Oklahoma, Appellee.

No. D–2008–657.

Court of Criminal Appeals of Oklahoma.

Jan. 27, 2011.As Corrected April 1, 2011.

Catherine Hammarsten, Jacob Benedict, Assistant Public Defenders, Oklahoma County Public Defender's Office, Oklahoma City, OK, attorneys for defendant at trial.Steve Deutsch, Scott Rowland, Cindy Truong, Assistant District Attorneys, Oklahoma City, OK, attorneys for State at trial.Andrea Digilio Miller, Assistant Public Defender, Oklahoma County Public Defender's Office, Oklahoma City, OK, attorney for appellant on appeal.W.A. Drew Edmondson, Oklahoma Attorney General, Jennifer L. Strickland, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

A. JOHNSON, Presiding Judge.

¶ 1 Marlon Deon Harmon was tried in the District Court of Oklahoma County, Case No. CF–2004–4956, and found guilty of First Degree Felony Murder in violation of 21 O.S.2001, § 701.7(B). The jury imposed the death penalty after finding that the murder was especially heinous, atrocious, or cruel, the murder was committed by Harmon while serving a sentence of imprisonment on conviction of a felony, and that Harmon presented a continuing threat to society. See 21 O.S.2001, § 701.12(4), (6) and (7). The Honorable Jerry D. Bass, who presided at trial, sentenced him accordingly. From this Judgment and Sentence he appeals, raising twenty-three claims of error. We find none of these claims merit relief and affirm the judgment and sentence.

FACTS

¶ 2 On August 17, 2004, Appellant Harmon picked up his friend, Jasmine Battle, and asked her to go with him to rob a nearby convenience store.¹ Harmon was driving a green Honda Accord, and had brought a gun. As they neared the Q & S convenience store at 26th Street and Independence in Oklahoma City, Harmon got out of the car and walked to that store while Battle drove around the block. Shortly, she heard three gunshots and saw that Harmon had blood on his hands when he came running back to her. A frightened Battle abandoned the car and left.

¶ 3 A young girl riding her bicycle across from the store saw Harmon run out of the store. He was clutching money in one hand and a gun in the other. She watched him run away and saw Kamal Choudhury, the owner of the store, run out and fall to the ground. She tried to call 911 from a pay phone outside the store. Unsuccessful, she then ran home to tell her mother what she had witnessed. Lance Nicholas arrived just as Choudhury emerged from the store. He heard Choudhury calling for help and saw a red substance on his clothes. He called 911 and tried to help Choudhury. When Nicholas asked Choudhury to describe the man who shot him, Choudhury pointed to Nicholas' baseball cap, worn backwards.² Choudhury was alert and responsive when he was transported to the hospital, but died early the next morning as a result of the gunshot wounds he sustained during the robbery.

¶ 4 Inside the store responding police officers found a large amount of blood and what appeared to have been the contents of a wallet: money, an I.D. card, and notes. Choudhury's wallet and credit cards were missing. Harmon's palm print was identified on a blood stained piece of paper found among the contents of the wallet. By the following day, Choudhury's credit cards had been used sixteen times. A card was first used fifteen minutes after the shooting at a gas station located a block away from the apartment Harmon shared with his girlfriend. Cards were also used at gas stations in El Reno and Chandler; witnesses placed Harmon in both towns after the shooting. Battle identified Harmon and one of his friends on the security videotape obtained from the Chandler gas station.

¶ 5 Tyrone Boston provided information to the police about Harmon's involvement in the robbery-murder. Learning of Boston's statement, Harmon responded by saying Boston was a “snitch” and voicing his regret that he had not killed him. Boston claimed to suffer from memory problems at trial, but acknowledged that Harmon had told him that he (Harmon) had been required to “plug” a man. Other facts will be discussed as necessary with Harmon's individual claims of error.

DISCUSSION

1.Jury Selection: Trial Court's Limitations on Questions

¶ 6 Harmon claims that his constitutional rights to due process and to a fair trial were denied by the limitations the trial court placed on the questions defense counsel was permitted to ask potential jurors during jury selection. He argues he was further prejudiced when the trial court reprimanded his attorney in front of the jury.

¶ 7 The purpose of voir dire examination is to discover whether there are grounds to challenge prospective jurors for cause and to permit the intelligent use of peremptory challenges. Sanchez v. State, 2009 OK CR 31, ¶ 44, 223 P.3d 980, 997, cert. denied, ––– U.S. ––––, 131 S.Ct. 326, 178 L.Ed.2d 212 (2010). “The manner and extent of voir dire lies within the District Court's discretion.” Id. The District Court may, in its discretion, restrict questions that are repetitive, irrelevant or regard legal issues upon which the trial court will instruct the jury. Id. “There is no abuse of discretion as long as the voir dire examination affords the defendant a jury free of outside influence, bias or personal interest.” Id.

¶ 8 Rule 6, Rules of the District Courts, Title 12, Ch. 2, App. (2011) instructs:

The parties or their attorneys shall be allowed a reasonable opportunity to supplement [the District Court's] examination. Counsel shall scrupulously guard against injecting any argument in their voir dire examination and shall refrain from asking a juror how he would decide hypothetical questions involving law or facts. Counsel shall avoid repetition, shall not call jurors by their first names or indulge in other familiarities with individual jurors, and shall be fair to the court and opposing counsel.

¶ 9 The limitations imposed upon defense voir dire in this case were proper. The trial court excluded inquiry designed to elicit answers based on facts that were not before the jury or about matters on which the court would instruct. ³ The record shows that defense counsel was permitted to question the potential jurors at length about their attitudes toward the death penalty, including questions such as: is life imprisonment without the possibility of parole a serious punishment; do you support the death penalty; do you consider yourself a strong or weak supporter of the death penalty; should the death penalty be reserved for only the worst cases; would you be open to hearing mitigating evidence; do you favor one punishment over another; is the decision whether to impose the death penalty a serious one; are there too many steps required to impose a death sentence; do you think this is a decision that will stay with you for years; and will you just pay lip service to considering all three punishments. The district court's limitations did not prevent defense counsel from fully exploring the potential jurors' views on the death penalty. The voir dire allowed was broad enough to enable defense counsel to challenge prospective jurors for cause and to intelligently exercise peremptory challenges. There is no error here.

¶ 10 Harmon also claims that he was prejudiced when the district court admonished his attorney in front of the jury about his questioning and the amount of time he was taking. We disagree. Defense counsel told the potential jurors that he was a young lawyer and that he had not been in the Public Defender's office very long. He also said that he was bound to make some mistakes. It was no surprise under the circumstances that the district court prompted defense counsel to keep the trial focused on the issue of selecting qualified jurors and to refrain from asking borderline or improper questions. The few times that the district court directed defense counsel to move on or to ask more relevant questions did not subvert the purpose of a well conducted voir dire. Furthermore, the court permitted defense counsel sufficient latitude to talk with potential jurors about hobbies or other personal interests.⁴ The court's comments that Harmon characterizes as reprimands were mild indeed. We cannot find those few judicial prompts to “move on” resulted in any prejudice to Harmon.

2.Lack of Jury Questionnaires and Individual Voir Dire

¶ 11 Harmon claims that the jury selection process in his case denied him due process because the trial court refused his requests to use jury questionnaires and to allow individual sequestered voir dire.⁵ He argues that the deprivation of information discoverable through these tools, coupled with the use of the “struck juror” method in this case denied him the full and intelligent exercise of his peremptory challenges.⁶

¶ 12 Harmon did not object to the “struck juror” method of selecting jurors in his case, waiving review for all but plain error. See Jones v. State, 2006 OK CR 5, ¶ 9, 128 P.3d 521, 533; Simpson v. State, 1994 OK CR 40, ¶ 23, 876 P.2d 690, 698 (plain error is error which counsel failed to preserve through a trial objection, but upon appellate review, is clear from the record and affected the defendant's substantial rights). The “struck juror” method of jury selection has been upheld where the record shows that the defendant was provided “the opportunity to examine each prospective juror to determine whether grounds existed to challenge the juror for cause and was allowed to exercise all of his peremptory challenges provided by law.” Jones, 2006 OK CR 5, ¶ 8, 128 P.3d at 533. The record shows that Harmon's attorney was allowed to question all potential jurors, with an emphasis on their views on the death penalty and the presumption of innocence, and that defense counsel exercised all nine peremptory challenges. Harmon has neither shown that the “struck juror” method affected his substantial rights nor that he was...