Malone v. State

• Decision Date: 17 June 1994
• Docket Number: No. F-90-809,F-90-809
• Citation: 876 P.2d 707,1994 OK CR 43
• Parties: J.D. MALONE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 707

876 P.2d 707

J.D. MALONE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-90-809.

Court of Criminal Appeals of Oklahoma.

June 17, 1994.

An appeal from the District Court of Carter County; John Scaggs, District Judge.

J.D. Malone, Appellant, was tried by jury for the crimes of Murder in the first degree and Shooting with Intent to Kill, in Case No. CRF-89-529 in the District Court of Carter County before the Honorable John Scaggs. The jury found Appellant guilty of First Degree Murder in violation of 21 O.S.1981, § 701.7(A) and acquitted him of Shooting with Intent to Kill. The jury recommended punishment of death. The trial court sentenced Appellant accordingly. From this Judgment and Sentence, Appellant appeals. Judgment is AFFIRMED and the Sentence is MODIFIED to LIFE IMPRISONMENT.

James English, for appellant at trial and Charles J. Migliorino, James Clark Law Offices, Ardmore, for appellant on appeal.

Fred Collins, Dist. Atty., Ardmore, for the State at trial, and Susan Brimer Loving, Atty. Gen. of Oklahoma and A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for the State on appeal.

OPINION

STRUBHAR, Judge:

J.D. Malone, Appellant, was tried by jury and convicted of Murder in the first degree (21 O.S.Supp.1989, § 701.7(A)) and acquitted of Shooting with Intent to Kill (21 O.S.1981, § 652) in the District Court of Carter County, Case No. CRF-89-529, before the Honorable John Scaggs, District Judge. The jury found two (2) aggravating circumstances and sentenced Appellant to death.

On November 25, 1989 Appellant drove from Wynnewood to his daughter's home in Ardmore to bring her home for an overnight visit. Appellant sent his son, Rickie Malone, to the door to advise his sister that they had arrived. Rickie Malone knocked on the door and was greeted by a room full of men who said that Vickie Malone did not live there. Rickie Malone returned to his father's truck and told him that the men said Vickie did not live there. According to eyewitnesses Appellant exited his pickup and retrieved a .22 caliber automatic rifle from the back. Appellant then announced "I'm Vickie's daddy" and shouted "I'm going to kill you all". Appellant then fired at three men who had come out onto the porch. Two of the men managed to escape. However, Appellant shot and killed the third man, Teddy Gleason. William Barnard managed to disarm Appellant and Appellant fled after sustaining serious injuries. Ballistic tests concluded that the shell casings recovered at the crime scene and the bullets recovered by the medical examiner were fired from Appellant's rifle.

ISSUES RELATING TO JURY SELECTION

Appellant argues in his second assignment of error that the trial court's denial of his pretrial motions to sequester the jury during trial and to conduct individual voir dire of prospective jurors denied him a fair trial. At the motion hearing defense counsel urged the motion to sequester and conduct individual voir dire because there were several death penalty cases scheduled on the trial docket that term. The State opposed the motions because Appellant's case was the first of two murder cases on the trial docket and argued Appellant suffered no prejudice because his jury would be selected first. The State further argued that individual voir dire would be too time consuming. The trial court overruled both motions finding that the case did not have enough notoriety to warrant sequestration and that a general voir dire with follow-up questions when responses warranted further explanation was sufficient to protect Appellant's rights.

This Court has repeatedly held that a motion to invoke the rule of sequestration is committed to the sound discretion of the trial court and is not an absolute right of the defendant. Price v. State, 782 P.2d 143, 147 (Okl.Cr.1989); Harvell v. State, 742 P.2d 1138, 1141 (Okl.Cr.1987). To show the trial court abused its discretion, Appellant must show, by clear and convincing evidence, that (1) the jurors were specifically exposed to media reports and (2) the reports were prejudicial to Appellant. Price, 782 P.2d at 147.

Appellant fails to offer any evidence that the jurors were exposed to media reports, nor does the record reflect that Appellant was prejudiced by the failure to sequester. The trial court properly admonished the jury at each break in the proceeding and this Court presumes that the trial court's instructions were followed, absent specific evidence to the contrary. Id. at 148. Therefore, this proposition of error is denied.

The decision to allow individual voir dire of potential jurors is also committed to the sound discretion of the trial court and is not a right guaranteed a defendant. Cannon v. State, 827 P.2d 1339, 1341 (Okl.Cr.1992); Wade v. State, 825 P.2d 1357, 1362 (Okl.Cr.1992). There is no indication, nor does Appellant allege, that he was not able to properly conduct a constitutionally adequate voir dire. Appellant does not specify any individual members of the panel who may have been improperly allowed to serve nor contends that he could not adequately question any potential juror. Accordingly, Appellant has failed to show that the trial court abused its discretion in denying his pretrial motion to conduct individual voir dire and thus this proposition of error is denied.

ISSUES RELATING TO GUILT-INNOCENCE

In his first assignment of error Appellant asserts that the trial court erred in refusing to instruct the jury on the lesser included offense of first degree manslaughter. ¹ Appellant contends that the evidence was sufficient to show that he was concerned for the safety of his daughter when he arrived to pick her up and was confronted by a group of men who told him she did not live there. He contends that such evidence was sufficient for a jury to conclude that he reacted from fear amounting to a sudden heat of passion, without malice.

It is beyond dispute that the trial court must instruct the jury on every degree of homicide where the evidence would permit the jury rationally to find the accused guilty of the lesser offense and acquit him of the greater. Boyd v. State, 839 P.2d 1363, 1367 (Okl.Cr.1992); Fowler v. State, 779 P.2d 580, 585 (Okl.Cr.1989), cert. denied, 494 U.S. 1060 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990); Lee v. State, 700 P.2d 1017, 1019 (Okl.Cr.1985). However, a defendant is entitled to an instruction on a lesser included offense only when the evidence presented warrants such an instruction. Boyd v. State, 839 P.2d at 1367; Hale v. State, 750 P.2d 130, 136 (Okl.Cr.1988), cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988); Foster v. State, 714 P.2d 1031, 1039 (Okl.Cr.1986), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986). The trial court must determine as a matter of law whether the evidence is sufficient to justify the submission of instructions on a lesser included offense to the jury. Boyd v. State, 839 P.2d at 1367; Williams v. State, 807 P.2d 271, 275 (Okl.Cr.1991); James v. State, 736 P.2d 541, 545 (Okl.Cr.1987), cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987).

We find the evidence presented in the present case was insufficient to support an instruction on First Degree Manslaughter. To warrant a First Degree Manslaughter instruction under 21 O.S.1981, § 711(2), evidence must be presented to support the conclusion that the homicide was perpetrated without a design to effect death by means of a dangerous weapon. Boyd, 839 P.2d at 1367. The testimony at trial showed Appellant shot his unarmed victim several times at close range. While the evidence that Appellant went to bring his daughter home and instead found a group of men in her living room may help explain Appellant's motive for shooting Gleason, it does nothing to bolster the inference that Appellant acted without a design to effect death. The State's evidence showed that Appellant opened fire on three men after shouting "I'm going to kill you all". There was no direct evidence that Appellant was concerned for the safety of his daughter. After reviewing the evidence, we do not believe that a rational juror could find that the death of Teddy Gleason was anything but the result of a premeditated design to effect death. Accordingly, we find no abuse of discretion in the trial court's failure to instruct the jury on First Degree Manslaughter.

ISSUES RELATING TO INEFFECTIVE ASSISTANCE OF COUNSEL

In his twelfth and thirteenth assignments of error Appellant contends that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment. Appellant cites defense counsel's failure to investigate and present any evidence in mitigation of punishment as deficient representation. In support of his contention Appellant cites defense counsel's motion to withdraw as an admission of ineffectiveness. ² Appellant contends that had defense counsel adequately investigated his character and introduced such evidence in mitigation, the outcome of his trial would have been different.

To successfully prove ineffective assistance of counsel, Appellant must satisfy the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must show: (1) that defense counsel's performance was deficient, which requires showing that counsel made errors so egregious that he was not functioning as the counsel guaranteed by the Sixth Amendment; and (2) that he was prejudiced by the deficient performance, which requires showing that counsel's errors deprived him of a fair trial with a reliable outcome. Id. at 687, 104 S.Ct. at 2064.

The United States Supreme Court clarified the second prong of the Strickland test last term in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The Court stated that the "touchstone of an effective assistance of counsel claim is the fairness of the adversary proceeding". Id. at ----, 113 S.Ct. at 843. The Court held that a mere showing that Appellant's...