Johnson v. State

• Decision Date: 16 January 1987
• Docket Number: No. F-82-312,F-82-312
• Citation: 1987 OK CR 8,731 P.2d 993
• Parties: Malcolm Rent JOHNSON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 993

731 P.2d 993

74 A.L.R.4th 361

Malcolm Rent JOHNSON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-82-312.

Court of Criminal Appeals of Oklahoma.

Jan. 16, 1987.

Rehearing Denied Feb. 9, 1987.

Thomas J. Ray, Jr., Asst. Public Defender, Oklahoma City, for appellant.

Michael C. Turpen, Atty. Gen., Mary F. Williams, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

On appeal from his sentence of death for the murder of a seventy-six-year-old woman, Malcolm Rent Johnson presents seventeen (17) assignments of error.

The victim, Ura Thompson, was found dead and partially decomposed in her apartment on October 27, 1981. The medical examiner determined that the cause of death was suffocation, and that the victim suffered blows to the head and jaw, as well as forced intercourse.

Jewelry, furs and other valuables were discovered missing from the victim's apartment. The police were given consent to search the apartment where appellant lived with his girlfriend. The victim's typewriter, rings, watch, antique jar, keyrings, cigarette case, and hand mirror were among the items found in the apartment. The specimens of hair and body fluids obtained from appellant were found to match the unknowns discovered in the victim's apartment.

I

As his second assignment of error (BI), appellant asserts that two prospective jurors were excluded for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Relevant portions of the record are set out in the margin. ¹ Careful reading of the voir dire reveals that each venireman excluded had views concerning the death penalty which would substantially impair his ability to serve as a juror in this case. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This is the proper standard of review. Accordingly, this assignment of error is without merit.

II

As his third assignment of error (BII), appellant complains of the exclusion of negroes from the jury in violation of the Sixth Amendment to the United States Constitution. The record reflects that the prosecutor used peremptory challenges to exclude the last three black veniremen from the panel. (Tr. 408-409). The judge denied a defense motion for mistrial, finding no evidence of intentional discrimination. Defense counsel argued that the State excludes black veniremen from juries whenever a black is charged with killing a white. However, he offered no evidence in support of that assertion.

Until recently, the prosecutor's exercise of peremptory challenges was essentially inscrutable under the authority of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). There was a presumption that the prosecutor used the State's peremptory challenges to obtain a fair and impartial jury. The presumption was not overcome by allegations that all negroes were removed from the jury, or that they were removed from the jury because they were negroes. See, Lee v. State, 637 P.2d 879, 881-82 (Okl.Cr.1981) (discussing the requirements of Swain ).

In the recent case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the prosecutor may not use peremptory challenges to racially discriminate against a criminal defendant. No longer are peremptory challenges beyond review. If a defendant establishes prima facie the discriminatory use of peremptories, the burden shifts to the prosecutor to explain his or her actions. Id. at ----, 106 S.Ct. at 1723.

To establish a prima facie case of purposeful discrimination in the selection of the petit jury, the defendant must demonstrate: first, that he or she is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove from the venire members of that race; second, a defendant can rely on the fact that the prosecutor can use peremptories as a tool with which to discriminate; and third, that the facts and other relevant circumstances raise an inference that the prosecutor used that practice to discriminate against appellant. Id. at ----, 106 S.Ct. at 1723. Once a prima facie showing is made, the prosecutor has the burden to offer a neutral explanation for challenging black jurors.

But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged the jurors of the defendant's race on the assumption--that they would be partial to the defendant because of their shared race ... [or] on the assumption that blacks as a group are unqualified to serve as jurors....

Id.

In the present case, prima facie discrimination was established. ² This case was remanded to the trial court for a hearing on defendant's allegations and the prosecutor's explanations. Although a record was not specifically made concerning inferences which could be made from the relevant circumstances, the third element of a prima facie case, the removal of all remaining blacks from the venire gives rise to a reasonable inference of racial discrimination. The prosecutor was then required to come forward with his explanations for excusing the black veniremen. The prosecutor did his best to reconstruct from the record, his memory, and from his own policies his reasoning in removing the particular jurors. The explanations were both neutral and logical based upon the record before him. ³ Such an explanation is not required to rise to the level of a challenge for cause. Id. at ----, 106 S.Ct. at 1723. We find this assignment to be without merit.

III

As his fourth assignment of error (BIII), appellant contends that the jury did not comport with the Sixth Amendment, citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). He complains that the excusal of veniremen under Witherspoon v. Illinois, supra, denies a capital murder defendant a jury composed of a representative cross section of the community as required by such cases as Taylor v. Louisiana, supra. This contention is without merit. "Nothing in Taylor, however, suggests that the right to a representative jury includes the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge." Lockett v. Ohio, 438 U.S. 586, 596-97, 98 S.Ct. 2954, 2960, 57 L.Ed.2d 973 (1978) (proper exclusion of jurors for cause under Witherspoon does not deprive a defendant of a jury chosen from a fair cross section of the community).

IV

Title 38 O.S.1981, § 28(A) provides in part that "persons over seventy (70) years of age shall not be compelled to serve as jurors in this State." Appellant contends as his fifth assignment of error (BIV) that the statute violates the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution, and that the judge erred in failing to quash the jury panel. Appellant offers no authority in support of his Eighth Amendment claim, rather relying upon the Sixth and Fourteenth Amendment requirement of a jury composed of a representative cross section of the community, as declared in such cases as Taylor v. Louisiana, supra, and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

In order to establish a prima facie violation of the fair cross section requirement, it must be shown that the group alleged to be excluded is a distinctive group in the community; that the representation of that group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and that the underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren, 439 U.S. at 364, 99 S.Ct. at 668. In the case at bar, appellant failed to establish a prima facie case. He consented to the determination of his motion to quash on the basis of the bare stipulation by the State that some of those seventy years of age and older summoned for jury duty in appellant's case would claim the statutory exemption. Tr. of Motion Hearing, March 11, 1982, pp. 4-7.

We reject the suggestion that we should remand for an evidentiary hearing on this matter under 22 O.S.1981, Ch. 18, App.--Rules of the Court of Criminal Appeals, Rule 3.11. Trial counsel was aware of the proof requirements of a prima facie case under Duren, supra. Tr. of Motion Hearing, March 11, 1982, pp. 6-7. Since counsel made no attempt to offer the necessary proof, there is no reason for us to assume that it exists at this late stage.

We decline appellant's request upon this and other assignments of error that we remand under Rule 3.11. That rule is designed to permit the supplementation of the record on appeal, not the relitigation of factual questions determined in the trial court.

V

As his sixth assignment of error (CI), appellant contends that the judge erred in overruling in part his motion for pretrial discovery. The judge overruled requests for the names of defendants prosecuted by the Oklahoma County District Attorney during an 18 month period for raping women fifty-five years of age and older; the names of suspects in the case at bar prior to the arrest of appellant; and information involving any unsolved rapes of women fifty-five years of age or older on the north side of Oklahoma City between January 1, 1980, and January 25, 1982. He relies upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The suppression of evidence despite defense request is a denial of due process where the evidence is material to guilt or punishment, irrespective of the good or bad faith of the prosecutor. Id. at 87, 83 S.Ct. at 1196-97. The test of materiality is whether the requested evidence might have affected the outcome of the trial. See, Hall v. State, 650 P.2d 893, 897 (Okl.Cr.1982) (discussing the requirements of Brady in light of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). We find no violation of Brady. The only requested information arguably material within the...