Jones v. State, F-91-433
| Citation | 899 P.2d 635,1995 OK CR 34 |
| Decision Date | 30 June 1995 |
| Docket Number | No. F-91-433,F-91-433 |
| Parties | Benny Dwight JONES, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Benny Dwight Jones, Appellant, was tried by jury in the District Court of Okmulgee County, Case No. CRF-90-144, before the Honorable Anne Moroney, District Judge. Jones was convicted of Murder in the first degree, Possession of a Stolen Vehicle, Knowingly Concealing Stolen Property and Using a Weapon in the Commission of a Crime. The jury recommended death for murder in the first degree, five (5) years imprisonment and a five thousand dollar ($5,000.00) fine for possession of a stolen vehicle, five (5) years imprisonment for knowingly concealing stolen property, and ten (10) years imprisonment for using a weapon in the commission of a crime. The trial court sentenced Jones accordingly. From this Judgment and Sentence, he appeals. We AFFIRM in part, REVERSE in part and REMAND this case to the District Court to conduct a new sentencing hearing.
Thomas H. Stringer, Jr., Henryetta, for appellant at trial.
Thomas C. Giulioli, Gregory Stidham, O.R. Barris, III, Okmulgee, for the State at trial.
Carol Seacat, Seacat & Seacat, Okmulgee, for appellant on appeal.
Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for appellee on appeal.
Benny Dwight Jones, Appellant, was tried by jury in the District Court of Okmulgee County, Case No. CRF-90-144, before the Honorable Anne Moroney, District Judge. 1 Jones was convicted of Murder in the first degree (21 O.S.Supp.1989, § 701.7(B)), Possession of a Stolen Vehicle (47 O.S.1981, § 4-103), Knowingly Concealing Stolen Property (21 O.S.1981, § 1713), and Using a Weapon in the Commission of a Crime (21 O.S.Supp.1982, § 1287). The jury recommended death for murder in the first degree after finding the existence of three aggravating circumstances 2, five (5) years imprisonment and a five thousand dollar ($5,000.00) fine for possession of a stolen vehicle, five (5) years imprisonment for knowingly concealing stolen property, and ten (10) years imprisonment for using a weapon in the commission of a crime. The trial court sentenced Jones accordingly. From this Judgment and Sentence, he appeals. We affirm in part, reverse in part and remand this case to the District Court to conduct a new sentencing hearing.
On June 28, 1990, Jones and co-defendant Hammon entered Truck 'N Things, an automotive accessory and parts store in Okmulgee, Oklahoma owned by Eugene Slape. Jones approached Slape at the front counter seemingly to purchase merchandise. As Slape rang up the sale and the cash register drawer opened, Jones robbed him. Jones claimed Slape appeared to be reaching for a gun so he shot him three times.
While Jones was confronting Slape at the front counter, Hammon ran to the back room where he found Bradley Slape, Eugene Slape's son, tinting windows on a Dodge pickup. Hammon told Bradley Slape, "I said this is a fucking holdup." Bradley Slape jumped in the pickup seat and begged Hammon not to shoot. Hammon pointed his gun at Bradley Slape's head and then began to run from the room. Bradley Slape raised his head to see where Hammon was and Hammon stopped running and again pointed his gun at Bradley Slape's head.
When Bradley Slape heard the front door close, he went to check on his father and found him lying on the floor staring at the ceiling. Bradley Slape contacted the police and tried to assist his father. The police arrived shortly thereafter and all resuscitation measures proved unsuccessful.
Bradley Slape told Detective Travis Tolar that he knew the man who ran into the back room and pointed a gun at his head. He advised he did not know his name, but could identify him from a high school yearbook. Detective Tolar obtained an Okmulgee High School yearbook and Bradley Slape identified Hammon as the man who pointed a gun at his head.
As Detective Tolar was leaving Truck 'N Things he received a tip from an informant that Hammon was "staying at the Projects" and that Jones was with him. Detective Tolar and several other officers proceeded to the "Projects" to apartment 603-A. Detective Tolar knocked on the door of 603-A and Hammon and Jones were arrested without incident.
After obtaining consent to search from Cassandra Jones, the police found merchandise from Truck 'N Things in the apartment. They also found and seized $59.00 hidden under a mattress in the bedroom Jones exited upon arrest and $75.00 in a purse. Jackie Alexander, also present during the search, testified that when Hammon and Jones arrived at the apartment at 11:30 a.m., they were carrying a box and some car spinners. 3 Shortly after arriving at the apartment, Hammon asked Alexander to take his black bag to her "mama's house". Alexander took the bag to her friend Charlotte Beard's house instead and hid it in a closet. Charlotte Beard consented to a search of her apartment where the police seized a black bag containing two .22 caliber weapons, one with three shots fired.
Both Jones and Hammon confessed to their participation in the robbery/homicide. Both confessions were admitted in their joint trial. Neither Jones nor Hammon testified nor put on evidence in first stage.
In his first proposition of error Jones argues he was denied a fair trial because the trial court improperly limited the scope of discovery and the State failed to comply with the trial court's discovery orders in violation of Allen v. District Court of Washington County, 803 P.2d 1164 (Okl.Cr.1990), modified by, Richie v. Beasley, 837 P.2d 479 (Okl.Cr.1992).
First, Jones argues the trial court improperly restricted discovery to "only those items in the District Attorney's possession and, in certain cases, to only those items intended to be used at trial." 4 Jones claims effective discovery could have been frustrated by withholding evidence from the district attorney.
On March 26, 1991, the trial court heard lengthy, and often times misdirected, argument concerning discovery. Initially, Jones' and Hammon's lawyers requested copies of everything in the prosecution's file. The trial court denied this broad request and required counsel to make specific requests. The trial court included in the scope of its discovery order the prosecutor's staff and those who regularly report to the prosecutor. 5 The trial court noted the district attorney has an obligation to find out if he has all the necessary information. 6 However, the trial court did not require the district attorney to ask every possible officer who worked on the case if they had any information, just those in command who would know who worked on the case. 7 While defense counsel lost sight of this initial ruling and argued the court was improperly limiting discovery, the trial court's order complied with Allen and no abuse of discretion is shown. 8
Next, Jones complains he was not provided Agent Page's notes. The record shows Jones was provided with Agent Page's notes taken during his interviews with both Hammon and Jones. 9 At trial Agent Page testified he produced all of his reports, but not all of his notes. Recently in Allen v. State, 862 P.2d 487, 490-91 (Okl.Cr.1993), this Court declined to extend Allen to include prosecution witness's work papers. This is consistent with this Court's prior holdings that the State is not required to produce notes of law enforcement officers as they are work-product. Wilhite v. State, 701 P.2d 774, 777 (Okl.Cr.1985). We continue to uphold the work-product exception to discoverable material and find Jones was not entitled to Page's other work-product notes. Wilhite, 701 P.2d at 777.
Jones also argues he was not provided the notes of Agent Collins taken during an interview with Charlotte Beard. Collins testified his notes were made into a report and included in the report sent to the district attorney. 10 Jones received two O.S.B.I. reports. 11 There is no evidence the information contained in Collins' notes was not contained in his report. Accordingly, Jones was not entitled to Collins' work-product notes since he had the O.S.B.I. reports.
Jones argues he was not provided all the documents in the medical examiner's file. At trial the medical examiner testified that there were other documents in his agency file in addition to his autopsy report. Jones was provided with the complete autopsy report. We find the other miscellaneous internal agency notes and documents contained in the medical examiner's file constitute work-product papers and are not discoverable under Allen. Allen v. State, 862 P.2d at 490-91.
Jones claims the trial court erred in failing to order the State to produce all of its photographs. The trial court ordered the State to produce all of the photographs it intended to use at trial pursuant to Allen. Jones fails to state how he was prejudiced by the trial court's limitation on photographs. We find the trial court's order complied with Allen and Jones' complaint is meritless. Allen, 803 P.2d at 1168.
Jones complains that the State failed to produce the statements of Charlotte Beard and Patrick White and all of the fingerprint reports from O.S.B.I. Agent Mullins. Jones argues the trial court must impose some sort of sanction provided in Allen for these violations. The State argues Jones fails to show the evidence withheld was favorable to his defense and material to either his guilt or punishment. Fritz v. State, 811 P.2d 1353 (Okl.Cr.1991).
In Skelly v. State, 880 P.2d 401, 408 (Okl.Cr.1994), this Court held when Allen violations occur, the trial court must fashion the appropriate relief. The record in the instant case shows Jones was given a copy of White's statement at the April 2, 1991 motion hearing. 12 However, during trial White testified he gave a...
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