Lewis v. State

• Decision Date: 15 April 1998
• Docket Number: No. F-96-85,F-96-85
• Citation: 1998 OK CR 24,970 P.2d 1158
• Parties: 1998 OK CR 24 Napoleon LEWIS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1158

970 P.2d 1158

1998 OK CR 24

Napoleon LEWIS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-96-85.

Court of Criminal Appeals of Oklahoma.

April 15, 1998.

As Corrected Feb. 3, 1999.

Rehearing Denied Feb. 9, 1999.

Charles Rouse, Sherry Oden, Oklahoma City, for appellant at trial.

Robert H. Macy, Brad Miller, Oklahoma City, for the state at trial.

Matthew D. Haire, Oklahoma Indigent Defense System, Norman, for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, for appellee on appeal.

OPINION

STRUBHAR, Vice Presiding Judge.

¶1 Appellant, Napoleon Lewis, Jr., was convicted of First Degree Murder (Count I) and Child Abuse (Count II) in the District Court of Oklahoma County, Case No. CF-95-2135, after a jury trial held before the Honorable Richard W. Freeman. As to the First Degree Murder charge, the State filed a Bill of Particulars alleging three aggravating circumstances: 1) that Appellant knowingly created a great risk of death to more than one person; 2) that the murder was especially heinous, atrocious, or cruel; and 3) the existence of a probability Appellant would commit criminal acts of violence that would constitute a continuing threat to society. The jury found the existence of two aggravating circumstances ¹ and assessed punishment at death on the First Degree Murder conviction. The jury assessed punishment at life imprisonment for the child abuse conviction. The trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has perfected his appeal. ²

FACTS

¶2 On March 28, 1995, after Anita Bebout had picked up her six-year-old daughter, Tressa, from elementary school, Appellant followed her in his orange pick-up truck. As Anita drove, Appellant bumped her car with his truck. Anita drove into the office parking lot of a mobile home park along Shields Avenue in Oklahoma City and Appellant followed. Anita got out of her car, picked up Tressa and was walking rapidly toward the office when Appellant got out of his truck, poured gasoline into a cup and then approached Anita and Tressa and threw gasoline on them. He ignited the gasoline, ran back to his truck and drove away.

¶3 The men in the mobile home office helped put out the fires on Anita and Tressa and called 911. Anita identified Appellant as the person who had thrown gasoline on them and set them on fire before she and Tressa were transported to the hospital by rescue workers.

¶4 The police located Appellant at his mother's house within the hour after the assault. When they arrived, Appellant ran from them. When he was apprehended, it was noted by police that Appellant smelled of gasoline. Appellant's truck was found parked behind his mother's house.

¶5 When police arrived at the police station with Appellant several reporters were already there. While he was being escorted inside, one reporter asked Appellant why he had done it. Appellant responded, "because I love her, and I caught her with another man." Appellant gave a video-taped confession to the police a short time later after he had been apprised of his Miranda ³ rights.

¶6 Anita Bebout died from her burn injuries on April 14, 1995. Tressa Bebout suffered severe burns but did not die.

PRE-TRIAL ISSUES

¶7 Appellant argues in his eighth proposition that three errors of constitutional magnitude occurred during voir dire. He first complains that when the trial court conducted voir dire of the potential jurors, the judge indicated his opinion that Appellant should be sentenced to the death penalty. During voir dire, the trial court advised the jurors that "[t]he law in Oklahoma provides that Murder in the First Degree is punishable, has three punishments. One is life, one is life without the possibility of parole and the third is death." ⁴ He then asked, "[i]f selected as a juror and you find the law and the evidence warrant the recommendation of the death penalty, could you vote for the death penalty?" ⁵ Appellant argues that because the trial court did not ask this same type of question about the other two possible punishments it indicated to the jury that he personally favored the death penalty. It is true that this Court has held "[t]he trial judge, during the entirety of the trial, should forbear with dignity indulgence in any remarks which might tend to influence the jury in any respect." Nauni v. State, 1983 OK CR 136, 670 P.2d 126, 132, quoting Reed v. State, 1958 OK CR 115, 335 P.2d 932, 936. However, we do not find that the trial court's questioning of the jurors in any way inferred to them his personal opinion on the propriety of the death penalty in this case. Rather, the judge was merely making the appropriate inquiry of whether the jurors could consider the death sentence as punishment if that punishment was appropriate. See Cargle v. State, 1995 OK CR 77, 909 P.2d 806, 817, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996).

¶8 Appellant next complains that error occurred when during voir dire the prosecutor asked a prospective juror if he could "vote for the death penalty without doing violence to his conscience." ⁶ Appellant contends that this question was improper and resulted in the prospective juror being excused for cause. Appellant is correct in his assertion that questioning a prospective juror about whether the consideration of the death penalty will do violence to his or her conscience is improper. In Cudjo v. State, 1996 OK CR 43, 925 P.2d 895, 898, cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 863 (1997), this Court held that this question tends to be confusing and irrelevant as it does not address a legitimate concern. We further noted, "the only legitimate concern is whether each member is willing to consider the imposition of the death sentence, as one of the alternatives provided by state law, should the case be appropriate for that punishment." Id. However, while it is error to ask this question, this error is harmless where the record demonstrates that the correct standard was employed before the juror was dismissed. See Mayes v. State, 1994 OK CR 44, 887 P.2d 1288, 1297, cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995); McGregor v. State, 1994 OK CR 71, 885 P.2d 1366, 1375, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995).

¶9 The record in the present case reflects that this prospective juror was excused only after extensive questioning by the trial court, the prosecutor and defense counsel. In response to questions asked by the trial court and prosecutor, the prospective juror repeatedly stated that it would be extremely difficult for him to consider imposing the death penalty. Defense counsel then asked him, "if you become a juror in this case and the guilt is established beyond a reasonable doubt and the State of Oklahoma presents all the evidence that they have and it becomes apparent that if there ever was a death penalty case, this is a death penalty case, would you be able to vote for the death penalty under those circumstances?" In response to this question the prospective juror answered, "I don't believe I could." ⁷ Later, the prospective juror again indicated that he did not believe he could give serious consideration to the imposition of the death penalty. ⁸ It was after this exchange that the prosecutor moved to excuse this prospective juror for cause. The trial court found that it had been demonstrated that the prospective juror could not give full consideration to the complete range of punishment and excused him for cause. This Court finds that despite the initial improper inquiry made by the prosecutor, the juror was properly questioned and demonstrated an inability to consider all of the appropriate punishment possibilities. The prosecutor's improper inquiry did not result in the dismissal of this potential juror for cause and the trial court did not abuse its discretion in dismissing this juror for cause after the appropriate questions had been asked.

¶10 Appellant also argues that the prosecutor's use of peremptory challenges to remove two jurors was racially motivated and accordingly violated his constitutional rights. The United States Supreme Court addressed the steps to be followed in determining whether a jury has been constitutionally selected in a race-neutral manner in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court held that a prima facie case of discrimination must first be established by the defendant. After the defendant establishes his prima facie case, the burden shifts to the State to come forward with a neutral explanation of why it utilized its peremptory challenge. Id. 476 U.S. at 97, 106 S.Ct. at 1723. The trial court then decides whether the defendant has established purposeful discrimination. Id. 476 U.S. at 98, 106 S.Ct. at 1724. On review, this Court will analyze the neutrality of the prosecutor's explanation as a legal issue. This review is only for clear error by the trial court. United States v. Johnson, 941 F.2d 1102, 1108 (10th Cir.1991); Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion).

¶11 In the present case, defense counsel objected to the State's use of peremptory challenges to remove prospective Jurors Hogg and Pang. The prosecutor explained that he removed Mr. Hogg because he worked as a counselor at the Department of Corrections and dealt extensively with mental health professionals. The prosecutor was also concerned because Mr. Hogg's wife ran a half-way house and worked with persons convicted of crimes. The prosecutor stated that he exercised a peremptory challenge to remove Ms. Pang because he had extreme difficulty understanding her and he was concerned that she would not be able to communicate frankly and openly with the other jurors. The trial judge noted that he, too, could hardly understand what Ms. Pang was...