Jones v. State

Decision Date27 January 2006
Docket NumberNo. D-2002-534.,D-2002-534.
Citation128 P.3d 521
PartiesJulius Darius JONES, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

David McKenzie, Malcolm Savage, Robin McPhail, Assistant Public Defenders, Oklahoma

City, OK, attorneys for defendant at trial.

Wendell B. Sutton, Assistant Public Defender, Oklahoma County Public Defender's Office, Oklahoma City, OK, attorney for appellant on appeal.

Sandra Howell-Elliott, Suzanne Lister-Gump, Assistant District Attorneys, 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

C. JOHNSON, J.

¶ 1 Appellant, Julius Darius Jones, was tried by a jury in Oklahoma County District Court, Case No. CF 1999-4373, for First Degree Murder, in violation of 21 O.S.Supp.1998, 701.7(B) (Count 1); Possession of a Firearm after Conviction of a Felony, in violation of 21 O.S.Supp.1998, § 1283 (Count 2); and, Conspiracy to Commit a Felony, in violation of 21 O.S.Supp.1999, § 421 (Count 3). Jury trial was held February 11th—15th, 19th—22nd, 25th—28th, and March 1st—4th, 2002. The jury found Jones guilty as charged on all counts. The Honorable Jerry D. Bass, District Judge, presided at trial. On Count 1, the jury found the existence of two aggravating circumstances: the defendant created a great risk of death to more than one person1 and there exists the probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.2 The jury fixed punishment at death on Count 1, fifteen (15) years imprisonment on Count 2, and twenty-five (25) years imprisonment on Count 3. Formal sentencing was held on April 19, 2002. Judge Bass sentenced Jones in accordance with the jury's verdicts and ordered the sentences be served consecutively. Thereafter, Jones filed this appeal.

¶ 2 On Wednesday, July 28, 1999, Paul Howell was fatally shot in the driveway of his parents' Edmond home. Howell, his sister, Megan Tobey, and Howell's two young daughters had just returned from a shopping trip in Howell's Chevrolet Suburban. Howell pulled into the driveway and turned the engine off. As Tobey exited from the front passenger side, she heard a gunshot. Tobey turned to see her brother slumped over the driver's seat, and a young black male, wearing a white T-shirt, a stocking cap on his head, and bandana over his face, demanding the keys to the vehicle. Tobey rushed to get herself and Howell's daughters out of the Suburban. As Tobey escorted the girls through the carport, she heard someone yelling at her to stop, and then another gunshot. Tobey got the girls inside and summoned for help. Howell's parents ran outside to find their son lying on the driveway. His vehicle was gone. Howell died a few hours later from a single gunshot wound to the head.

¶ 3 Two days after the shooting, Oklahoma City police found Howell's Suburban parked near a convenience store on the south side of town. Detectives canvassed the neighborhood and spoke with Kermit Lottie, who owned a local garage. Lottie told detectives that Ladell King, and another man he did not know, had tried to sell the vehicle to him the day before. Lottie realized at the time that the vehicle matched the description given in news reports about the Howell carjacking. Ladell King, in turn, told police that he had agreed to help Christopher Jordan and Jones find a buyer for a stolen vehicle. On the night of the shooting, Jordan came to King's apartment driving a Cutlass; Jones arrived a short time later, wearing a white T-shirt, a black stocking cap, and a red bandana, and driving the Suburban. King told police that Jones could be found at his parents' Oklahoma City home.

¶ 4 Police then drove to Jones's parents' home, called a telephone number supplied by King, and spoke to someone who identified himself as Julius Jones. Jones initially agreed to come out and speak to police, but changed his mind. Police made several attempts to re-establish telephone contact; eventually a female answered and claimed Jones was not there. While some officers maintained surveillance at the home, others sought and obtained warrants to arrest Jones and search his parents' home for evidence. Police found a .25-caliber handgun, wrapped in a red bandana, secreted in the attic through a hole in a bedroom ceiling and found papers addressed to Jones in the bedroom. Police also found a loaded, .25-caliber magazine, hidden inside a wall-mounted door-chime housing. Further investigation revealed that the bullet removed from Howell's head, and a bullet shot into the dashboard of the Suburban, were fired from the handgun found in the attic of the Jones home.

¶ 5 Christopher Jordan was arrested on the evening of July 30. Jones, who managed to escape his parents' home before police had secured it, was arrested at a friend's apartment on the morning of July 31. The two men were charged conjointly with conspiracy to commit a felony, and with the murder of Howell. Jordan agreed to testify against Jones as part of a plea agreement. At trial, Jordan testified that the two men had planned to steal a Chevrolet Suburban and sell it; that they followed Howell's vehicle for some time with the intent to rob Howell of it; that once Howell pulled into the driveway, Jordan stayed in their vehicle while Jones, armed with a handgun, approached the Suburban on foot; that after the robbery-shooting, Jones drove the Suburban away and told Jordan to follow him; and that Jones subsequently claimed his gun had discharged accidentally during the robbery.

¶ 6 Additional facts will be presented as relevant to the issues discussed below.

JURY ISSUES

¶ 7 In Proposition Thirteen, Jones submits that errors during jury selection violated his right to a fair and impartial jury in violation of both his federal and state constitutional rights. Jones complains about the trial court's use of the "struck juror" method of jury selection and about the trial court's removal of a juror for cause. Defense counsel objected to the trial court's use of the "struck juror" method of jury selection and his objection was overruled. Appellate counsel argues this method does not comply with applicable statutes, violates Oklahoma law, and constitutes a federal procedural and/or substantive due process violation.

¶ 8 Oklahoma statutes do not specifically prescribe a method of jury selection. See 22 O.S.2001, §§ 600, 653. Further, the method of voir dire is discretionary with the trial court. Smith v. State, 1987 OK CR 94, ¶ 53, 737 P.2d 1206, 1217. The trial court's use of the "struck juror" method did not deprive Jones of a fair and impartial method of jury selection. Jones 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 for by law. See Nelson v. State, 1977 OK CR 224, ¶ 5, 567 P.2d 522, 524 (recognizing similar method taken from Section 575.1 of Title 12, in accordance with Title 22, Section 592).

¶ 9 We are not persuaded by Jones's claim that this "struck juror" procedure prejudiced him because three prospective jurors were not asked whether they knew the victim and/or any of the witnesses whose names were previously read to the other prospective jurors. Whether the trial court asked each prospective juror individually the same questions does not render the method of voir dire unfair. Trial counsel had the opportunity to clarify the trial court's questions and to pose additional questions to any prospective juror. It is trial counsel's duty to examine jurors on voir dire to discover any facts affecting their qualifications to sit as jurors and then reasonably raise any objection that might exist as to any member of the panel. Wackerly v. State, 2000 OK CR 15, ¶ 9, 12 P.3d 1, 8. "Failure to do so waives all but plain error." Id.

¶ 10 We find no plain error. Jones has not shown the method of voir dire affected his substantial rights or that he was prejudiced by the manner of jury selection and questioning of the potential jurors. Valdez v. State, 1995 OK CR 18, f. 6, 900 P.2d 363, 369, f. 6. (plain-errors are errors which counsel failed to preserve through a trial objection, but which upon appellate review, are clear from the record and affect substantial rights), Simpson v. State, 1994 OK CR 40, ¶ 23, 876 P.2d 690, 698 (plain error is an error which goes to the foundation of the case, or which takes from a defendant a right essential to his defense).

¶ 11 Jones also complains the trial court's decision to remove another juror for cause, over defense counsel's objection, violated his federal constitutional rights and warrants reversal of his convictions and sentences. Jones submits this potential juror was intentionally trying to avoid jury service by stating he would not fairly consider all punishment options and the trial court's refusal to allow counsel an adequate opportunity to rehabilitate the potential juror was error.

¶ 12 The record reflects the subject potential juror was initially ambiguous in his answers about whether he would be able to fairly consider all three punishment options for murder. However, upon further questioning by the trial court, the potential juror became more firm in his responses and clearly stated he could not and would not vote for the death penalty under any circumstances.

¶ 13 "When reviewing cases where the answers of potential jurors are unclear or equivocal this Court traditionally defers to the impressions of the trial court who can better assess whether a...

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