Ledbetter v. State

• Decision Date: 21 February 1997
• Docket Number: No. F-94-640,F-94-640
• Parties: 1997 OK CR 5 Andrew Thomas LEDBETTER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 880

933 P.2d 880

1997 OK CR 5

Andrew Thomas LEDBETTER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-94-640.

Court of Criminal Appeals of Oklahoma.

Feb. 21, 1997.

Rehearing Denied March 25, 1997.

Sid Conway and Steve Barnes, Assistant Public Defenders, Tulsa, Trial Counsel, for Appellant.

Fred Demier, Assistant District Attorney, Tulsa, Trial Counsel, for Appellee.

Barry L. Derryberry, Assistant Public Defender, Tulsa, Appellate Counsel, for Appellant.

W.A. Drew Edmondson, Attorney General, Laronna W. Harris, Assistant Attorney General, Oklahoma City, Appellate Counsel, for Appellee.

OPINION

LUMPKIN, Judge:

Appellant Andrew Thomas Ledbetter was tried by a jury in the District Court of Tulsa County, Case No. CF-93-1819, and convicted of Murder in the First Degree (21 O.S.1991, § 701.7(A)). The prosecution sought the death penalty, alleging (1) The murder was especially heinous, atrocious, or cruel (21 O.S.1991, § 701.12(4)) and (2) there existed a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society (21 O.S.1991, § 701.12(7)). The jury found the murder was especially heinous, atrocious or cruel but did not find Appellant posed a continuing threat to society. After making these findings, the jury recommended Appellant be sentenced to death. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. ¹

In town for a church convention, John Ray Applewhite met Appellant at a local convenience store, and agreed to give him a ride. After being driven to a couple of locations, Appellant asked to go see a particular church minister. After a short visit (during which Applewhite waited in the car), Appellant came out, appeared distraught, and asked Applewhite to take him to the house where his estranged wife lived. Appellant went into the house while Applewhite again stayed in his car. As Applewhite fiddled with his car radio and enjoyed the unusually beautiful April day, he heard screams coming from the house. He looked up and saw a woman attempting to escape from the house; she was followed by Appellant, who appeared to be beating her with his fists while she constantly screamed. Appellant then stepped over the woman and returned to the car. In Appellant's hand was a bloody butcher knife. Fearing for his own safety, Applewhite took Appellant to another location. Next-door neighbors who were sitting on their front porch also heard the screams and noticed Appellant run out of the Ledbetter house carrying the knife. They went next door to check on Mrs. Ledbetter and found her lying near the front door with the metal rod of an ice pick sticking out of her right eye. She also exhibited other stab wounds caused by a knife. The ice pick punctured a major artery in the brain; the knife punctured a major artery feeding blood to the heart. She died within a short period of time. Appellant turned himself in that same day, April 21, 1993.

I. ISSUES RELATING TO JURY SELECTION

For his first assignment of error, Appellant alleges his right to a fair trial was violated by the trial court's dismissal of jurors who potentially could set aside scruples against the death penalty.

Appellant cites Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), where the United States Supreme Court determined the death penalty could not be carried out if the jury that imposed it had been selected by excluding for cause venirepersons who expressed general objections to the death penalty or conscientious or religious scruples against its infliction. Subsequently, however, in Wainwright v. Witt, 469 U.S. 412, 416, 105 S.Ct. 844, 847, 83 L.Ed.2d 841, 846 (1985), the Court recognized the State had a legitimate interest in excluding those whose opposition to capital punishment would not allow them to view the proceedings impartially, "and who therefore might frustrate administration of a State's death penalty scheme." As we noted in Carter v. State, 879 P.2d 1234 (Okl.Cr.1994), cert. denied, 513 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995), the Wainwright Court "clarified its Witherspoon decision and held that the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is 'whether the juror's views would prevent, or substantially impair, the performance of his duties as a juror in accordance with his instructions and his oath.' " Carter, 879 P.2d at 1243-44 (quoting Wainwright, 469 U.S. at 424, 105 S.Ct. at 852, 83 L.Ed.2d at 851-852). We further observed the Supreme Court dispensed with the reference in Witherspoon to "automatic" decision making and that "the new standard did not require that a juror's bias be proved with 'unmistakable clarity.' " Carter, 879 P.2d at 1244. We concluded that Supreme Court decisions "require that jurors be willing to go into the trial with no preconceived notions of either stance, death or life," and that was the same standard applied by this Court, that "a venireperson is only required to be willing to consider all the penalties provided by law and not be irrevocably committed before the trial has begun." Id. In applying this standard, we look to the entirety of the voir dire examination to determine if the trial court acted properly in excluding the juror for cause. Id. We have also observed that some veniremen could not be asked enough questions to establish such a record; nonetheless a judge may have a definite impression that the prospective juror would be unable to properly fulfill his or her oath. Duvall v. State, 825 P.2d 621, 631 (Okl.Cr.1991), cert. denied, 506 U.S. 878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992). It is for this reason we give great deference to the trial judge, who was present during questioning and who evaluated the venireperson's attitude and demeanor during voir dire. Allen v. State, 871 P.2d 79, 91 (Okl.Cr.), cert. denied, 513 U.S. 952, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994). With these principles in mind, we turn to the specific instances of which Appellant complains.

Appellant first complains the court erred in excusing for cause venireperson Broussard. Ms. Broussard first told the judge she had just been excused from a capital case in another courtroom where jury selection was transpiring. After the court told her she would not necessarily be excused in his courtroom based on that fact, she said she could never consider the death penalty, even though she knew that was one of the three options available. She based this on both religious and philosophical reasons. When asked by defense counsel if there may be a crime that was so horrible she would not want that person walking around, she acknowledged a theoretical possibility she could consider death, but added she did not want to make the decision, and said she was not certain she could give it as much consideration as she would give the other two options. She repeated to the prosecutor she did not know if she could ever vote for the death penalty, and would choose another option if she were the one making the decision.

We find no error here. Although Ms. Broussard said there may be a theoretical situation where she would want a person to die for the crimes he committed, she would not be the one to chose the death option. We hold the responses "sufficiently demonstrated that [the juror's] beliefs about capital punishment would 'substantially impair [her] ability to serve as a juror.' " Battenfield v. State, 816 P.2d 555, 559 (Okl.Cr.1991), cert. denied, 503 U.S. 943, 112 S.Ct. 1491, 117 L.Ed.2d 632 (1992) (quoting Coleman v. Brown, 802 F.2d 1227, 1232 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987)).

The same is true of Venireperson Doerpinghaus. When the trial court asked him if he could consider the death penalty as one of three options available to him, he flatly stated "no," prompting the court to observe he "stated that fairly unequivocably [sic]." The court then attempted to ascertain if there might be any circumstances at all where he could consider death as an option. Citing religious reasons, Mr. Doerpinghaus said he could not. Although the questioning was very short, the trial court was obviously left with the definite impression Mr. Doerpinghaus would never consider the death penalty as a punishment option. We see no error here.

Appellant has cited other instances in the record, without specifics, where he claims the court erred in excusing venirepersons for cause. Venireperson Sims stated flatly she did not believe in the death penalty, and that she had always felt that way, saying that "because you can't give life, ... I don't believe we have the right to take it." Venireperson Cook told the court he had very traumatic experiences while serving in Vietnam, he had "seen enough death and destruction," and could not think of a circumstance so horrible that he could impose the death penalty. Venireperson Holland, citing religious beliefs, was "absolutely certain" he could not consider the death penalty. The same philosophy was expressed by venireperson Campbell.

Based on the discussion of precedents above, we find no error in any of these rulings. Accordingly, Appellant's first proposition is without merit.

II. ISSUES RELATING TO FIRST STAGE OF TRIAL

A.

In his second proposition, Appellant claims the prosecutor improperly introduced evidence of his silence after being read his Miranda ² warnings. Appellant cites Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which held a person cannot be penalized for asserting his right to silence by having that silence used against him.

The facts of this case dispose of Appellant's claim. ³ We agree with the State's response that, taken in context, the question appears to be more an attempt to ascertain whether the warnings were given at all, rather than attempt to show Appellant exercised his right to...