Jones v. State
| Decision Date | 24 April 2006 |
| Docket Number | No. D-2004-204.,D-2004-204. |
| Citation | 2006 OK CR 17,134 P.3d 150 |
| Parties | Wesley Deion JONES, Appellant v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Sid Conway, Marna Franklin, Tulsa County Public Defender's Office, Tulsa, OK, attorneys for the defendant at trial.
Doug Drummond, William J. Musseman, Assistant District Attorneys, Tulsa, OK, attorneys for the State at trial.
Stuart Southerland, Tulsa County Public Defender's Office, Tulsa, OK, attorney for appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer Dickson, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.
¶ 1 Wesley Deion Jones was tried by jury and convicted of Count I: First Degree Murder (Mohamed Rahaman) in violation of 21 O.S.2001, § 701.7; and Count II: First Degree Murder (Sterling Mullis) in violation of 21 O.S.2001, § 701.7 in the District Court of Tulsa County Case No. CF-02-4910. The jury found two aggravating circumstances: (1) that during the commission of the murder, Jones knowingly created a great risk of death to more than one person and (2) that the murder was committed to prevent lawful arrest or prosecution.1 In accordance with the jury's recommendation, the Honorable Thomas C. Gillert sentenced Jones to death on both counts. Jones has perfected this appeal.
¶ 2 A few days before September 15, 2002, Murtaza Ali and Shafi Ahmed asked Wesley Jones to kill the owner of the Lucky Trip convenience store, Mohamed Rahaman. On September 15th, Ali drove Jones to the store and identified Rahaman. Jones walked into the store, waited a few moments, then approached the counter and shot and killed Rahaman. When store customer Sterling Mullis, standing nearby, grabbed Jones, Jones also shot and killed him. Jones then fired through the glass door of the store and ran around the corner to Ali's waiting car and fled.
¶ 3 In Proposition VI, Jones claims he gave an involuntary and thus inadmissible statement to police, and filed a pre-trial motion to suppress his statement. The trial court found that the statement was in fact freely and voluntarily given after proper Miranda warnings.
¶ 4 The evidence produced at a December 16, 2003 hearing shows that while Jones initially invoked his right to counsel, he reinitiated the interrogation after consulting with an attorney. The attorney consulted with Jones for approximately twenty-five minutes, after which he advised Jones and the Tulsa Police Officers that he would be representing Murtaza Ali and not Jones due to a conflict of interest. The attorney also told the Tulsa Police Officers that he had instructed Jones not to speak with them. Jones ignored the advice and reinitiated the interrogation.
¶ 5 Jones now claims that his statement was involuntary because the attorney knew he had a conflict of interest when he gave Jones legal advice. First, Jones waived this argument by failing to object at trial to the admission of the videotape. Second, no evidence suggests that the attorney's visit with Jones affected the voluntariness of his confession. Third, the totality of evidence at the hearing established that the statement was voluntary. Jones was properly Mirandized and reinitiated the interrogation. No evidence shows that he was coerced or intoxicated, and sufficient evidence supports the trial court's ruling that the statements were voluntary and admissible.2 This Proposition is denied.
¶ 6 Jones claims the trial court committed reversible error in denying his requested "First Degree Manslaughter/With a Dangerous Weapon" instruction and in sua sponte failing to instruct upon Second Degree Murder for the murder of Sterling Mullis. (Jones does not dispute that he was not entitled to lesser-included instructions for the murder of Mohamed Rahaman.) Jones did not request this instruction at trial, waiving all but plain error. However, the trial court must instruct on any lesser-included offense warranted by the evidence. This Court has adopted the "evidence test" for trial court's use in determining when lesser-included instructions must be given.3
¶ 7 The First Degree Manslaughter/With a Dangerous Weapon instruction was not supported by the evidence. Jones walked into the convenience store with the intent to kill Rahamen. While doing so, he was grabbed by Mullis who was trying to prevent that murder. Jones then shot and killed Mullis. Jones contends that he was "scared" when Mullis grabbed him, causing him to act in the heat of passion. Heat of passion requires adequate provocation. Being "scared" after being grabbed while committing First Degree Murder does not suffice.4 Jones was not entitled to a First Degree Manslaughter instruction. This argument is denied.
¶ 8 Likewise, the Second Degree Murder instruction was unsupported by the evidence. The essential difference between First and Second Degree Murder is intent to kill. First Degree Murder requires deliberate intent to end human life, which can be instantly formed and inferred from the fact of the killing.5 Second Degree Murder requires an eminently dangerous act, committed by one with a depraved mind.6 It does not require intent to kill. A Second Degree Murder instruction demands evidence that the defendant did not intend to kill the victim. No such evidence exists. Jones was shooting Rahamen when Mullis grabbed him. Jones then shot Mullis in the neck at close range. The evidence supports the inference that Jones intended to kill Mullis. Thus, no Second Degree Murder instruction was warranted.7 This Proposition is denied.
¶ 9 Jones argues in Proposition XVI that double jeopardy and 21 O.S.2001, § 11 were violated when the same evidence was used to support his conviction for First Degree Felony Murder in Count II and the aggravating circumstances found by the jury supporting the death penalty. It follows, he argues that his conviction for First Degree Felony Murder in Count II must be reversed. Jones concedes that the Supreme Court has rejected this argument8 when it specifically found that the use of identical evidence to support both an element of the crime for which the defendant was convicted and an aggravating circumstance found by the jury at sentencing does not violate the Constitution.9 We agree. This Proposition is denied.
¶ 10 Jones claims in Proposition III that the trial court erred in denying his for-cause challenges to Juror P. We review this claim through the following standards: the trial court holds discretion over whether to excuse a juror for cause,10 but "all doubts regarding juror impartiality must be resolved in the defendant's favor."11 In reviewing for bias, a juror must be excused for cause when his or her views substantially impair the performance of his or her duties as a juror.12 Moreover, in a death penalty case, a juror must begin the trial with no "preconceived notions regarding the appropriate penalty, death or life" and must be able to "fairly" consider all punishment options.13
¶ 11 Jones argues that Juror P should have been excused for cause because she favored the death penalty. Although early in voir dire Juror P said that she could consider all three punishment options, she indicated that she had significant reservations about life imprisonment or life without parole. Juror P's reservations stem from prison overcrowding, incarceration costs, and her friendship with a crime victim's family member. Through that friendship, Juror P knew of a defendant who had been sentenced to death but had been retried numerous times, and still had not been executed after fifteen years. She also admitted to having always leaned "heavily" in favor of the death penalty. She stated that there might be a "rare" case that did not warrant the death penalty, but that she could not think of one. She then admitted that she would impose the death penalty if Jones were convicted of two counts of First Degree Murder as charged, and that she would not consider any other punishment option. This juror's overwhelming bias and her unwillingness to fairly consider all three punishment options should have resulted in her being excused for cause.
¶ 12 In order to establish prejudice, Jones must show that due to the trial court's erroneous denial of a for cause challenge, he was forced to keep an unacceptable juror.14 Jones excused Juror P with his fourth peremptory challenge. At the end of voir dire, Jones then renewed his objection to Juror P and requested an additional peremptory challenge to excuse Juror C. Juror C was unacceptable to Jones because she favored the death penalty and indicated on her questionnaire that there were only "rare" cases where it should not be imposed for murder. Juror C also felt sentences were not actually carried out, and had personal knowledge of a defendant who had been sentenced to death in 1967 but was still alive. Jones adequately established that Juror C was an undesirable and thus unacceptable juror. Since Juror P should have been excused for cause and Jones was prejudiced by not being allowed to exercise a peremptory challenge on Juror C, we must remand for resentencing.15
¶ 13 Jones contends in Proposition IV that the trial court impermissibly restricted his voir dire. During Juror P's voir dire, Jones asked if she would impose the death penalty if Jones was convicted of two counts of first degree murder. Juror P responded "Yes." Jones also asked if she would consider a punishment less than death if Jones was convicted of two counts of murder. Juror P responded "No." As discussed above, the trial court should then have excused Juror P for cause. Instead of immediately seeking to have her excused, trial counsel tried to re-ask the questions; the court sustained the State's objections to the questions.
¶ 14 We find that Jones's counsel was attempting to ask a valid question of Juror P:...
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