Harris v. State, D-2005-117.

• Decision Date: 19 July 2007
• Docket Number: No. D-2005-117.,D-2005-117.
• Citation: 2007 OK CR 28,164 P.3d 1103
• Parties: Jimmy Dean HARRIS, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

164 P.3d 1103

2007 OK CR 28

Jimmy Dean HARRIS, Appellant v. STATE of Oklahoma, Appellee.

No. D-2005-117.

Court of Criminal Appeals of Oklahoma.

July 19, 2007.

An Appeal from the District Court of Oklahoma County; the Honorable Virgil C. Black, District Judge.

James T. Rowan, Oklahoma City, OK, attorney for defendant at trial.

Michael D. Morehead, Kathleen Smith, Appellate Defense Counsel, Capital Direct Appeals Division, Oklahoma Indigent Defense System, Norman, OK, attorneys for appellant on appeal.

C. Wesley Lane II, District Attorney, Patricia L. High, Assistant District Attorney, Oklahoma City, OK, attorneys for the state at trial.

W.A. Drew Edmondson, Attorney General of Oklahoma, Preston Saul Draper, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

CHAPEL, Judge.

¶ 1 Jimmy Dean Harris was tried by jury and convicted of Murder in the First Degree in violation of 21 O.S.1991, § 701.7, in the District Court of Oklahoma County, Case No. CF-1999-5071. On appeal, this Court reversed the punishment of death recommended by the jury and imposed by the trial court, and remanded the case for resentencing.¹ The jury at Harris's resentencing trial found that Harris knowingly created a great risk of death to more than one person, and constituted a continuing threat to society. In accordance with the jury's recommendation, the Honorable Virgil C. Black imposed the death penalty. Harris appeals from this sentence.

¶ 2 Harris, who was a skilled transmission mechanic, and his wife, Pam, worked in front office positions in transmission shops. Throughout their relationship the two often worked together. Despite being business partners as well as husband and wife, they had a stormy relationship. This worsened significantly when Pam was hired, but Harris was not, to work in Merle Taylor's AAMCO transmission shop in Oklahoma City. Harris commuted to work in Texas for several months, during which time the marriage suffered. After Harris had a work-related accident, he returned to Oklahoma. By the summer of 1999, Pam told him the marriage was over. While Harris agreed to a divorce, he was angry and upset, and continued to hope Pam would return to him. In mid-August of 1999, Harris called Pam, threatening to kill her, her parents, their daughter, her co-workers, and Merle Taylor. Pam got a protective order against Harris and filed for divorce. The divorce was granted on August 25, 1999, and Harris was ordered to leave the home without removing any property. Harris and Pam had previously taped an agreement dividing the house property. On the evening of the 25th, Harris moved out of the home, taking furniture and many of Pam's personal possessions. He also vandalized the house. Pam discovered the damage the next day, found out where Harris had stored her furniture and his tools, and had a lock put on that shed. In the succeeding days Harris called Pam often demanding that she remove the lock. Each time, she explained she could neither talk to him nor remove the lock, and told him to call her attorney. He refused, explicitly stating he would talk to her. He continued to threaten her and others. On August 31, 1999, he threatened to kill Pam and was seen driving by the AAMCO shop.

¶ 3 On the morning of September 1, 1999, Harris called the AAMCO shop several times, demanding that she remove the lock on the storage shed and threatening Pam and Merle Taylor. At approximately 9:00 a.m. Harris arrived at the shop and asked for Pam, who was standing with Merle Taylor and his daughter-in-law Jessica. He shot Taylor twice at close range, and shot at Jessica. Harris shot Pam, chased her when she ran, and pistol-whipped her when he ran out of bullets and could not quickly reload his gun. When Pam escaped, Harris fled, discarded the gun and his van, and hid in a friend's garage. Harris claimed he was angry and upset, and could not make good decisions because he was of low intelligence, was under the influence of alcohol and drugs, and was mentally ill (although not legally insane).

¶ 4 To support the aggravating circumstances, the State presented the evidence of the circumstances of the crimes. There was also evidence that, during the ongoing difficulties in mid-August, Pam had called police and Harris had resisted arrest. The State presented evidence that Harris assaulted a jailer while awaiting trial, and had physically, verbally and emotionally abused Pam throughout their relationship. The State also presented victim impact evidence. In mitigation, Harris presented evidence from his family and former co-workers, as well as expert evidence, regarding his traumatic and abusive childhood, history of substance abuse, low intelligence, emotional instability, and possible mental illness.

Issues Regarding Jury Selection

¶ 5 In Proposition V Harris claims that the trial court's failure to provide the jury with cautionary instructions on the taking and use of notes during trial and deliberation deprived him of his rights to a fair trial and due process. The trial court allowed jurors to take notes during the course of the trial and provided them with notebooks and pencils. The court told jurors that any notes they took were for their personal use, and would not become part of the public record. However, the trial court did not instruct jurors on the taking and use of notes during trial or deliberations. Harris claims this omission deprived him of a right to a fair trial and due process. He neither requested these instructions at trial, nor objected to the trial court's failure to give them, and has waived all but plain error. There is none.

¶ 6 In Cohee v. State we held that a trial court may, in its discretion, allow jurors to take notes.² While Cohee explained why note-taking may be beneficial, and set forth guidelines for the trial court's consideration, it did not promulgate or require any specific instructions on the process of note-taking.³ The Uniform Jury Instructions include instructions on note-taking which are based on the comments and guidelines in Cohee.⁴ The Notes on Use to the Uniform Jury Instructions (revised) note that, in keeping with Cohee, these instructions are recommended, not mandatory. Trial courts should use both mandatory and recommended uniform instructions which accurately state the applicable law.⁵ However, the failure to use recommended instructions does not require reversal where the jury is accurately instructed on the law. In Hanson v. State,⁶ this Court previously considered the failure to use the recommended instructions on jury note-taking. We determined that this omission was not plain error, where the instructions to the jury, "taken as a whole, fairly and accurately stated the applicable law, channeling juror's discretion in their use of notes."⁷ The trial court told jurors that notes were for their personal use only. Jurors were otherwise properly instructed on their function, the definition of evidence, and the trial and deliberations process. Taken together, these instructions properly narrowed the jury's discretion to use notes taken during trial. The trial court's omission was not plain error.

Issues Relating to the Sentencing Stage of Trial

¶ 7 Harris argues in Proposition III that the trial court's failure to provide a complete record of the proceedings leading to his death sentence violated his constitutional rights. In a capital case, the State has the burden to ensure a complete record of the trial is provided, which will enable the Court to conduct its mandatory sentence review.⁸ However, failure to provide a complete record is not per se reversible error.⁹ In Pickens v. State, private conversations with two jurors during voir dire were not recorded. The Court found that, as no errors were alleged during jury selection and the potential jurors were excused for cause, no error was shown and our ability to conduct the mandatory sentence review was not affected.¹⁰ By contrast, in Van White the parties completely failed to transcribe voir dire proceedings. This deprived the Court of the ability to consider potential juror bias or other questions of improper juror prejudice as part of our mandatory sentence review, and required reversal.¹¹ The defendant must show that the failure to transcribe a portion of the trial resulted in error and affects this Court's ability to conduct a mandatory sentence review.¹² Harris fails to meet this standard. As our discussion shows, this record is complete enough for this Court to determine whether the jury's verdict was imposed under the influence of passion, prejudice, or any other arbitrary factor, and whether sufficient evidence supports the aggravating circumstances.¹³

¶ 8 During deliberations, Harris's jury asked for a dictionary. The trial court responded in writing by asking what word the jury wanted defined. Jurors replied that they wanted definitions for "probability" and "possibility". The trial court sent typewritten dictionary definitions of those words to the jury room. While this exchange of notes is physically preserved, the trial record makes no mention of them. There is no indication whether the trial court discussed these requests with the parties, or if so, whether defense counsel agreed to the trial court's resolution of the question.¹⁴

¶ 9 Harris first claims that this Court cannot determine whether the trial court appropriately answered the jury by supplying the requested dictionary definitions without knowing the context for the jury's request. Harris suggests that a dictionary definition would be inappropriate for "some words" which are legal terms of art, but fails to show that either "probability" or "possibility" falls within that category. The word "possibility" is found in every instruction which mentions the punishment alternatives "imprisonment for life without the possibility of parole, or imprisonment for life with the possibility of parole."¹⁵ "Probability" occurs in the...