Malicoat v. State, No. F-98-151.

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: CHAPEL.
• Citation: 992 P.2d 383,2000 OK CR 1
• Decision Date: 07 January 2000
• Docket Number: No. F-98-151.
• Parties: James Patrick MALICOAT, Appellant, v. STATE of Oklahoma, Appellee.

992 P.2d 383
2000 OK CR 1

James Patrick MALICOAT, Appellant,
v.
STATE of Oklahoma, Appellee

No. F-98-151.

Court of Criminal Appeals of Oklahoma.

January 7, 2000.

Rehearing Denied February 8, 2000.

Kindanne C. Jones, Oklahoma City, Oklahoma, Michael Wilson, Capital Trial Division Indigent Defense System, Norman, Oklahoma, Attorneys for Defendant at trial.

Robert E. Christian, District Attorney, Bret T. Burns, Assistant District Attorney, Grady County Courthouse, Chickasha, Oklahoma, Attorneys for the State at trial.

Julie L. Gardner, Jamie D. Pybas, Capital Direct Appeals Division, Norman, Oklahoma, Attorneys for Appellant on appeal.

W.A. Drew Edmondson, Attorney General Of Oklahoma, Jennifer B. Miller, Assistant Attorney General, Oklahoma City, Oklahoma, Attorneys for Appellee on appeal.

992 P.2d 391

OPINION

CHAPEL, Judge:

¶ 1 James Patrick Malicoat was tried by jury and convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7(C), in the District Court of Grady County, Case No. CF-97-59.¹ The jury found two aggravating circumstances: (1) that the murder was especially

992 P.2d 392

heinous, atrocious or cruel, and (2) the existence of a probability that Malicoat would commit criminal acts of violence constituting a continuing threat to society. In accordance with the jury's recommendation the Honorable Joe Enos sentenced Malicoat to death

¶ 2 At about 8:25 p.m. on February 21, 1997, Malicoat and his girlfriend, Mary Ann Leadford, brought their thirteen-month-old daughter, Tessa Leadford, to the county hospital emergency room. Staff there determined Tessa had been dead for several hours. The child's face and body were covered in bruises, there was a large mushy closed wound on her forehead, and she had three human bite marks on her body. Tessa had two subdural hematomas from the head injury, and severe internal injuries including broken ribs, internal bruising and bleeding, and a torn mesentery. After an autopsy the medical examiner concluded the death was caused by a combination of the head injury and internal bleeding from the abdominal injuries.

¶ 3 Tessa and Leadford began living with Malicoat on February 2, 1997. Malicoat, who was severely abused as a child, admitted he routinely poked Tessa hard in the chest area and occasionally bit her both as discipline and in play. Malicoat worked a night shift on an oil rig and cared for Tessa during the day while her mother worked. Malicoat initially denied knowing how Tessa got her severe head injury; he later suggested she had fallen and hit the edge of the waterbed frame, then admitted he hit her head on the bed frame one or two days before she died. Malicoat admitted punching Tessa twice in the stomach, hard, about 12:30 p.m. on February 21, while Leadford was at work. Tessa stopped breathing and he gave her CPR; when she began breathing again, he gave her a bottle and went to sleep next to her on the bed. When he awoke around 5:30 p.m., she was dead. He put Tessa in her crib and covered her with a blanket, then spoke briefly with Leadford and went back to sleep in the living room. Leadford eventually discovered Tessa and they brought her to the emergency room. Malicoat explained he had worked all night, had car trouble, took Leadford to work, and was exhausted. He hit Tessa when she would not lie down so he could sleep. He said he sometimes intended to hurt Tessa when he disciplined her, but never meant to kill her. His defense was lack of intent; he claimed he had suffered through such extreme abuse as a child that he did not realize his actions would seriously hurt or kill Tessa.

ISSUES RELATING TO JURY SELECTION

¶ 4 Malicoat complains in Proposition II that he was denied a fair and impartial jury when the trial court passed the jury for cause over objections by the defense. Malicoat's first trial ended in a mistrial after four days of voir dire. The record indicates that officials were not prepared for a death penalty voir dire and all apparently panicked at the lengthy process. This atmosphere was communicated to the jury panel, some of whom expressed resentment toward defense counsel (who were allowed to ask far-reaching questions). All parties appeared very aware of this during the second trial. The trial court conducted an extensive voir dire before allowing the attorneys to question the panel. The court routinely reprimanded both sides for asking questions previously answered in the jury questionnaires, and prevented both sides from asking questions on issues not relevant to any issue in this case. The trial court also routinely stopped both sides from asking the same question of each individual juror when the question could easily be asked of the entire panel. Malicoat complains that he was denied the opportunity to fully voir dire the jury panel on child abuse because the trial court (1) did not allow individual voir dire on that issue, and (2) directed that non-capital group voir dire be finished by 5:00 p.m. on the first day of questioning.

¶ 5 On the contrary, the record reveals the trial court was appropriately exercising its discretion to expedite the proceedings.²

992 P.2d 393

The trial court initially asked the entire jury panel general questions about child abuse, and did not prevent counsel from asking any particular question on that issue. Malicoat incorrectly complains he was prohibited from asking jurors whether a person's history of child abuse would have a bearing on their decision. The trial court merely told counsel to ask this question of the entire panel collectively and follow up particular responses if warranted, rather than repeating it in general voir dire with each individual juror. The trial court's characterization of this tedious process as repetitive was not an abuse of discretion. We note that counsel did not follow the trial court's suggestion and ask this general question of the entire panel. Malicoat lists several jurors whom he claims were never questioned about child abuse at all. The record shows counsel was not prevented from asking any juror a further or different question than those asked by the trial court or contained in the jury questionnaire. We disagree with Malicoat's suggestion that the trial court's limits on questioning prevented the jurors from considering any particular mitigating factors

¶ 6 The manner and extent of voir dire, as well as the decision to conduct individual voir dire, are within the trial court's discretion.³ The voir dire process allows attorneys to see when a challenge for cause exists and permit the intelligent use of peremptory challenges.⁴ This Court looks not at whether any specific question was allowed but at whether the overall questioning gives the defendant sufficient opportunity to discover grounds to excuse any particular juror.⁵ The record shows that, despite the trial court's imposition of a time limit on general voir dire, counsel had the opportunity to determine whether each juror had feelings about or experience with child abuse which would warrant the juror's removal for cause or with a peremptory challenge. Malicoat was not denied a fair and impartial jury and this proposition is denied.

¶ 7 Malicoat argues in Proposition III that the impaneled jury was not impartial and his death sentence must consequently be vacated. Malicoat claims the trial court erred in failing to excuse for cause six jurors who indicated they would automatically impose the death penalty for first degree murder. Malicoat removed five of the jurors with peremptory challenges but was unable to remove the sixth. A careful review of the record shows no error in the court's decisions as to prospective jurors Davis, Smiley, Davidson and Ladd. Each of these jurors initially indicated either that a person who intentionally killed someone deserved the same, or that the age of the victim in this case would incline them to the death penalty. However, on further questioning each juror stated he or she could consider all three punishments equally. That is all the law requires.⁶ Juror Wyatt appeared confused by a defense question regarding who had the burden to "prove" Malicoat should receive the death penalty in second stage. The record does not support Malicoat's claim that Wyatt's view showed an unalterable position. Wyatt stated she did not lean towards any particular punishment and said she could follow the law; the trial court did not err in failing to excuse her for cause. None of these jurors' answers indicated their views would prevent or substantially impair the performance of their duties in accordance with the instructions and their oath.⁷

992 P.2d 394

¶ 8 However, as the trial court noted, prospective juror Berkshire gave "conflicting answers on just about every point." Berkshire said she leaned toward the death penalty but could consider other options, and that her inclination would interfere with her ability to fairly consider all three options. These answers were ambiguous. Jurors who would automatically vote for or against the death penalty cannot fulfill their oaths because they will fail to consider all the evidence presented.⁸ The trial court had the opportunity to view Berkshire and determined her ambiguous response did not indicate her views would substantially impair her ability to sit as a juror. We will not substitute our judgment for the trial court,⁹ and find no error in the decision not to remove Berkshire for cause. This proposition is denied

ISSUES RELATING TO FIRST STAGE PROCEEDINGS

¶ 9 In Proposition I Malicoat argues his Sixth and Fourteenth Amendment rights were violated when the trial court forced defense counsel to reserve opening statement until the State had presented its entire case. During a pretrial hearing the trial court announced the order of trial: the State would open its case and offer evidence in support, then Malicoat would be allowed to open his case and present evidence. The trial court denied Malicoat's objection,...