Howell v. State

• Decision Date: 16 September 1994
• Docket Number: No. F-88-1045,F-88-1045
• Citation: 882 P.2d 1086,1994 OK CR 62
• Parties: Michael Wayne HOWELL, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1086

882 P.2d 1086

Michael Wayne HOWELL, Appellant, v. STATE of Oklahoma, Appellee.

No. F-88-1045.

Court of Criminal Appeals of Oklahoma.

Sept. 16, 1994.

Rehearing Denied Nov. 1, 1994.

An Appeal from the District Court of Oklahoma County, Richard Freeman, District Judge.

Appellant, Michael Wayne Howell, was tried by jury and convicted of Murder in the First Degree (With Malice Aforethought), Case No. CRF-87-6784, in the District Court of Oklahoma County before the Honorable Richard W. Freeman, District Judge. The jury, finding three (3) aggravating circumstances, recommended punishment of death. The trial court sentenced accordingly. From this Judgment and Sentence, Appellant has perfected this appeal. Oral argument was held before this Court. Affirmed as to guilt but Remanded for resentencing.

Robert Macy, Dist. Atty., Ray Elliott, Asst. Dist. Atty., Oklahoma City, at trial for State.

Tim Wilson, Paul Faulk, Public Defender's Office, Oklahoma City, at trial for defendant.

Chris Box, Oklahoma City, at trial for co-defendant.

David Autry, Asst. Public Defender, Oklahoma City, on appeal, for appellant.

Robert H. Henry, Atty. Gen., A. Diane Hammons, Asst. Atty. Gen., Oklahoma City, on appeal, for appellee.

OPINION

JOHNSON, Vice Presiding Judge:

Appellant, Michael Wayne Howell, was tried by jury and convicted of Murder in the First Degree (With Malice Aforethought), 21 O.S.1981, § 701.7, Case No. CRF-87-6784, in the District Court of Oklahoma County before the Honorable Richard W. Freeman. The jury, finding three (3) aggravating circumstances, recommended punishment of death. The trial court sentenced accordingly. From this Judgment and Sentence, Appellant has perfected this appeal and Oral argument was held before this Court.

There is no dispute that Appellant, accompanied by co-defendant Mona Lisa Watson, shot and killed USAF Sergeant Charlene Calhoun on November 2, 1987. Sgt. Calhoun was fatally wounded by one gunshot beneath her right eye in the parking lot of her apartment complex in Del City, Oklahoma. After the incident, Ms. Watson set fire to the truck in which she and Appellant came to Oklahoma City, which was later determined to have been stolen. Appellant and Ms. Watson loaded the victim's body into deceased's car, which Appellant drove to a deserted area of town where he dumped the body. The body was found on November 17, 1987.

On November 29, 1987, Appellant and Ms. Watson were captured in a police shoot-out in Florida. They were driving Sgt. Calhoun's car and Appellant was in possession of the handgun which was later identified as the murder weapon.

Appellant, who was tried jointly with Ms. Watson, defended on the grounds of self-defense and defense of another, namely, Ms. Watson.

I. ISSUES RELATED TO JURY SELECTION

Issues regarding jury selection were raised in Appellant's propositions VII and XXX. In proposition VII, Appellant asserts that despite "extensive" questioning about his employment background by both the State and the defense, jury Foreman, Les Bays, failed to reveal that he worked for the Central Intelligence Agency's Air America following his discharge from the Marine Corps. Appellant's defense attorney discovered this information after trial and asked Mr. Bays why he did not reveal this information. Mr. Bays responded, "You didn't ask the right questions." The defense attorney stated that had he known Mr. Bays had worked for the CIA, he would have excluded him on a peremptory challenge because CIA activities are akin to law enforcement connections.

Appellant, citing Tibbetts v. State, 698 P.2d 942, 945 (Okla.Cr.App.1985), argues that juror Bays' deliberate withholding of pertinent information was "not consistent with the principles of fundamental fairness." Appellant's reliance on Tibbetts is misplaced, and the proposition is denied.

In proposition XXX, Appellant asserts that the method of venire panel selection from those persons eighteen years or older who hold current valid driver's licenses and who reside in the county where the trial is held results in the systematic exclusion of numerous potential jurors who are unable or unwilling to obtain driver's licenses. Appellant further questions the constitutionality of a system which involves the systematic exclusion of jurors over 70 years of age.

First, we note that 38 O.S.1981, § 28(A) does not systematically exclude persons over 70 years of age from serving on juries. This statute provides that those over 70 years of age have the option of declining jury service. We have previously addressed this issue and are unpersuaded to change our holding. See Fox v. State, 779 P.2d 562, 566 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990).

Concerning the complaint regarding the selection of juries from those with driver's licenses, we continue to adhere to the test enunciated in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), that to show prima facie violation of the fair-cross section requirement, an appellant must show (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in venires is not fair and reasonable in relation to the number of such persons in the community; (3) this under-representation is Neither this Court nor the U.S. Supreme Court has defined the term "distinctive group." However, we do find guidance in the three-prong test enunciated in Ford v. Seabold, 841 F.2d 677 (6th Cir.1988):

caused by systematic exclusion of that group in the jury selection process.

(1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process.

Id., 841 F.2d at 682. Appellant has alleged as distinctive groups, the physically impaired, certain religious groups, such as the Amish, Mennonites and those whose tenets forbid photographs as forbidden images, out-of state college students and military personnel who "do not need a driver's license." Appellant offers no authority in support of the assertions he ascribes to these groups, and such proposition is denied.

FIRST STAGE EVIDENCE

In the fourth proposition of error, Appellant claims that the trial court committed fundamental and reversible error in declaring Ms. Watson unavailable and admitting her preliminary hearing testimony into evidence in the State's case-in-chief. The record reveals that Ms. Watson, pursuant to a plea bargain agreement, agreed to testify on behalf of the State. She did so at the preliminary hearing. Her testimony provided the evidence to support the malice aforethought element of the first degree murder charge. She admitted during the preliminary hearing that she and Appellant drove around the apartment complex looking for a car to steal. She admitted that she spoke to Ms. Calhoun for the purpose of diverting her attention while Appellant shot her. She testified that she burned the truck they were driving and helped to load Sgt. Calhoun's body into her car.

Ms. Watson subsequently changed her mind about the agreement, alleging that she was the target of coercion and suggestion with respect to the substance of her preliminary hearing testimony. Several pre-trial motions and hearings were had on this issue as well as objections at trial. The trial court overruled the motions and objections to the admission of the preliminary hearing testimony at trial.

The threshold issue to be determined in this case is whether co-defendant Watson was actually unavailable to testify for the State. It is generally recognized that the "availability" of a witness depends as much on the production of his or her testimony as it does on his or her presence in court. Testimony from a witness who will claim a privilege is, for all practical purposes, just as inaccessible as if he or she were dead or out of the jurisdiction of the court. Mason v. United States, 408 F.2d 903 (10th Cir.1969).

In Oklahoma, a person charged with a crime is a privileged witness who cannot be made to testify (except at his or her own request) in a trial where the person or any co-defendant is being tried for the respective charge. See 22 O.S.1981, § 701 which provides as follows:

In the trial of all indictments, informations, complaints and other proceedings against a person charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this State, the person charged shall at his own request, but not otherwise, be a competent witness ...

This Court decided more than a half a century ago in Wells v. State, 29 Okla.Cr. 11, 231 P. 1087 (1927), that a co-defendant may testify if he so desires, but cannot be compelled to testify either for himself, his co-defendant or for the State, where he is a party in the case. We further noted in Morris v. State, 68 Okla.Cr. 147, 96 P.2d 88 (1946), that where two or more persons are jointly charged with the commission of a felony and separately tried, each is a competent witness for or against a co-defendant, if he voluntarily elects to become a witness. (Emphasis added)

In this case, it would have resulted in prejudicial error if the State had called co-defendant Watson to the stand with knowledge that she would invoke her privilege against self incrimination. Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). See also Fletcher v. United States, 332 F.2d 724, 727 (D.C.Cir.1964) which held that the refusal of a witness, who claimed the Fifth Amendment privilege, added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.

Therefore, we...