Lott v. State

Citation98 P.3d 318,2004 OK CR 27
Decision Date09 September 2004
Docket NumberNo. D-2002-88.,D-2002-88.
PartiesRonald Clinton LOTT, Appellant v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Craig Corgan, Wayna Tyner, Perry Hudson, Indigent Defense System, Norman, OK, John Albert, Oklahoma City, OK, counsel for appellant at trial.

Wesley Lane, District Attorney, Richard Wintory, Greg Mashburn, Assistant District Attorneys, Oklahoma City, OK, counsel for the State at trial.

Gretchen Garner Mosley, Traci J. Quick, Indigent Defense System, Sapulpa, OK, counsel for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Robert Whittaker, Assistant Attorneys General, Oklahoma City, OK, counsel for the State.



? 1 Appellant Ronald Clinton Lott was tried by jury and convicted of two counts of First Degree Murder (21 O.S.Supp.1985, ? 701.7), Case No. CF-87-963, in the District Court of Oklahoma County. The jury found the existence of two aggravating circumstances in each count and recommended the punishment of death for each count. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.1

? 2 Sometime after 10:30 p.m., September 2, 1986, Anna Laura Fowler was attacked in her home, raped and murdered. Mrs. Fowler was 83 years old and lived alone. As a result of the attack, Mrs. Fowler suffered severe contusions on her face, arms and legs, and multiple rib fractures. She died from asphyxiation.

? 3 Zelma Cutler lived across the street from Mrs. Fowler. Mrs. Cutler was 93 years old and lived alone. During the early morning hours of January 11, 1987, Mrs. Cutler was attacked, raped and murdered in her home. Mrs. Cutler suffered severe contusions on her arms and legs as a result of the attack. She also suffered multiple rib fractures. Mrs. Cutler died from asphyxiation.

? 4 Robert Miller was arrested, charged, and ultimately convicted of the rapes and murders of Mrs. Fowler and Mrs. Cutler. Subsequent to Miller's arrest, Grace Marshall was attacked and raped in her home on March 22, 1987. Eleanor Hoster was attacked and raped in her home on May 7, 1987. Both Mrs. Marshall and Mrs. Hoster were elderly ladies who lived alone. With the exception that Mrs. Marshall and Mrs. Hoster were not killed after being raped, there were striking similarities between the attacks on the four women. Appellant was arrested, charged, and ultimately plead guilty to committing the rapes against Mrs. Marshall and Mrs. Hoster.

? 5 In approximately 1992, during Robert Miller's appeal period, Miller was excluded as the source of semen in the Fowler/Cutler cases through DNA testing. DNA testing subsequently implicated Appellant as the source of the semen. While Appellant was incarcerated for the Marshall/Hoster crimes, he was charged with two counts of malice aforethought murder or in the alternative first degree felony murder for the murders of Mrs. Fowler and Mrs. Cutler.


? 6 In his first assignment of error, Appellant contends the trial court erred in refusing to dismiss the charges based upon the denial of his constitutional rights to a speedy trial under the Sixth Amendment to the United States Constitution and Article II, ?? 6 and 20 of Oklahoma's Constitution.2

? 7 When reviewing a claim of the denial of the constitutional right to a speedy trial, we apply the four balancing factors established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972):(1) length of the delay; (2) reason for the delay; (3) the defendant's assertion of his right, and (4) prejudice to the defendant. These are not absolute factors, but are balanced with other relevant circumstances in making a determination. See Rainey v. State, 1988 OK CR 65, ? 3, 755 P.2d 89, 90

. Appellant claims all four factors clearly weigh in his favor and that his speedy trial right has been unquestionably denied.

? 8 Regarding the length of delay, Appellant was originally charged on March 10, 1995, by amended information, with the commission of the Fowler/Cutler murders. On January 30, 1996, those charges were dismissed by the State with the intent to refile at a later date. At that time, Appellant was incarcerated for the Marshall/Hoster rapes. Appellant argues the ten months between the filing and dismissal of the original charges should be counted in considering the length of delay factor. In United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982), the United States Supreme Court held that "once charges are dismissed, the speedy trial guarantee is no longer applicable." Appellant's reliance on Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) is misplaced. In Klopfer, the prosecutor was able to suspend proceedings indefinitely; the charges were not dismissed. Id., at 214, 87 S.Ct. at 989. In the present case, Appellant was incarcerated for a separate crime at the time, therefore no due process violation occurred. See MacDonald, 456 U.S. at 8,

102 S.Ct. at 1502.

? 9 Charges against Appellant for the Fowler/Cutler murders were refiled by a Third Amended Felony Information on March 19, 1997. The trial began December 3, 2001. Therefore the length of delay was approximately 4 years and 10 months.3 This was a substantial delay and is sufficient, under our case law, to necessitate a review of the other three factors. See Ellis v. State, 2003 OK CR 18, ? 30, 76 P.3d 1131, 1136


? 10 We next consider the second factor, the reason for the delay. Barker v. Wingo speaks of a "valid reason" for the delay. However, our statute speaks of "appropriateness of the cause of the delay," while the former statute spoke of "good cause."5 All of these phrases have essentially the same meaning and require the reviewing court to ascertain what is causing the delay and then to ask if the cause is reasonable. Id. Further,

Barker v. Wingo recognized that the second factor depends on the circumstances of the case. Deliberate delay weighs heavily against the government. Neutral reasons, like negligence or crowded courts, weigh slightly in a defendant's favor, for "ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192. And a "valid reason, such as a missing witness, should serve to justify appropriate delay." Id.

Ellis, 2003 OK CR 18, ? 47-48, 76 P.3d at 1139 (footnote omitted).

? 11 Appellant's case was set for trial to begin on May 22, 2000. This date was stricken at the request of the defense in order to allow Appellant to produce evidence in support of a Motion to Dismiss for Speedy Trial. A hearing was held on Appellant's motion on May 26, 2000. On June 2, 2000, the trial court denied the motion to dismiss and issued a detailed Findings of Fact and Conclusions of Law. See Appendix.

? 12 In its Findings of Fact and Conclusions of Law, the trial court found several reasons for the delay. The court also stated that the delay was not solely attributable to the State. The preliminary hearing began 8 months after charges had been refiled. It was continued on six different dates until it was completed March 20, 1998. The trial court found that at no time during the course of the hearing did the defense raise an objection to the lengthy nature of the hearing. Under our review of the voluminous record, we cannot dispute that claim. At the conclusion of the hearing, Appellant requested immediate receipt of the preliminary hearing transcripts at public expense. The record reflects a delay of approximately six months, with the final transcript filed in September 1998. The trial court found that defense counsel's request for a completed transcript was reasonable as the evidence presented at the preliminary hearing was relevant to the court's pre-trial rulings.

? 13 In a Supplemental Brief, Appellant challenges the trial court's finding that this delay was due to the preparation of preliminary hearing transcripts. Appellant asserts trial counsel never requested a continuance based on the lack of transcripts. Even if counsel did not request a continuance on this basis, we find the trial court's ruling that such transcripts were necessary and relevant for pre-trial rulings to be reasonable.

? 14 Appellant argues the delay from preliminary hearing to pre-trial was due instead to the fact that the assigned judge, Judge Owens, was retiring in January 1999 and simply did not want to try the case. Appellant relies on Ellis where we stated, "[u]nder the statute, it is clearly the trial judge's responsibility to manage his or her docket in such a way that ensures the right to speedy trial is being protected". 2003 OK CR 18, ? 50, 76 P.3d at 1139.

? 15 In this regard, the trial court found the case was delayed due to scheduling conflicts of both court and counsel. The trial court found that the docket of Judge Owens was such that he could not have tried a case of this magnitude during the four month time period encompassing the final completion of the preliminary hearing transcript and the date of his retirement. The trial court noted that Judge Owens chose not to hear any pre-trial motions in this case as he would not be the presiding judge at trial. The trial court found no defense request for trial during the time the case was pending before Judge Owens.

? 16 Section 812.2(A)(2)(g) and (i) require the court to look at whether the delay occurred because "the court has other cases pending for trial that are for persons incarcerated prior to the case in question, and the court does not have sufficient time to commence the trial of the case within the time limitation fixed for trial," and "the court, state, accused, or the attorney for the accused is incapable of proceeding to trial due to illness or other reason and it is unreasonable to reassign the case." While we do not know from the...

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