Matthews v. State

• Citation: 2002 OK CR 16,45 P.3d 907
• Decision Date: 08 April 2002
• Docket Number: No. D-99-1139.,D-99-1139.
• Parties: Jeffrey David MATTHEWS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

45 P.3d 907

2002 OK CR 16

Jeffrey David MATTHEWS, Appellant, v. STATE of Oklahoma, Appellee.

No. D-99-1139.

Court of Criminal Appeals of Oklahoma.

April 8, 2002.

As Corrected April 23, 2002.

Silas Lyman, II, Oklahoma Indigent Defense System, Tulsa, OK, Bob Perrine, Attorney at Law, Norman, OK, Attorneys for Appellant at trial.

Richard Sitzman, Assistant District Attorney, Ronald Boone, Assistant District Attorney, Norman, OK, Attorneys for the State at trial.

Bill Zuhdi, Zuhdi Law Offices, Oklahoma City, OK, Attorney for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Timothy J. Gifford, Seth Branham, Assistant Attorneys General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

STRUBHAR, J.

¶ 1 Jeffrey David Matthews, Appellant, was re-tried by jury in the District Court of Cleveland County, Case No. CF-95-183, following this Court's opinion reversing his original Judgment and Sentence and remanding the matter for new trial. Matthews v. State, 1998 OK CR 3, 953 P.2d 336. He was again convicted of First Degree Murder (Count I), Assault and Battery With a Deadly Weapon (Count II), Conspiracy to Commit a Felony (Count III) and Unauthorized Use of a Motor Vehicle.¹ This time the jury recommended death for Count I after finding that Matthews created a great risk of death to more than one person and that the murder was committed while Matthews was serving a sentence of imprisonment. The jury also found Matthews guilty of each non-capital felony after former conviction of two felonies and recommended one hundred years imprisonment on Count II, fifty years imprisonment on Count III and twenty years imprisonment on Count IV. The Honorable Candace Blalock followed the jury's sentencing recommendation and ordered the sentences to be served consecutively. From this Judgment and Sentence, he appeals.²

FACTS

¶ 2 The facts relevant to Matthews' convictions are thoroughly discussed in Matthews, 1998 OK CR 3, at ¶¶ 2-5, 953 P.2d at 339-40. We will not restate them here, except as may be necessary in our review of Matthews' twenty-three propositions of error relating to his retrial.

JUROR MISCONDUCT/JURY SELECTION ISSUES

¶ 3 In his first proposition of error, Matthews claims he was denied due process and a fair trial because jurors in his case were exposed to and engaged in unauthorized communications regarding the merits of the case during first stage deliberations and again between first stage verdict and the second stage. Matthews filed a motion for new trial based on this alleged juror misconduct and the trial court held hearings at which all twelve jurors were examined as well as other relevant witnesses.³ Following the hearings, the trial court found no juror misconduct and denied the motion. Because this juror misconduct issue was litigated and involves the factual issues of whether there were improper communications that resulted in the jury considering extraneous information in rendering its verdict, we defer to the trial court's ruling unless it is clearly erroneous. See Young v. State, 2000 OK CR 17, ¶ 109, 12 P.3d 20, 48,

cert. denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001).

¶ 4 This claim stems from a communication that occurred between Juror No. 2⁴ and alternate juror James DeHaven following the first stage verdict but before the beginning of the second stage. The record shows DeHaven, who was released prior to first stage deliberations, asked Juror No. 2 to call him and advise him of the verdict once it had been reached. The jury began its first stage deliberations around 4:30 p.m. on Friday, April 9, 1999, and reached a verdict early Saturday morning around 2:00 a.m. Thereafter the jury was released until Monday, April 12th with the admonition not to discuss the case with anyone. Despite the admonition, Juror No. 2 spoke with DeHaven on the telephone sometime Saturday the 10th either in the afternoon or evening concerning the verdict. Juror No. 2 and DeHaven differed on how long the conversation lasted and on the content of the conversation. However, the evidence at its worst shows the conversation lasted fifteen minutes and that Juror No. 2 discussed with DeHaven the difficulty of making the decision, the numerical stance of the jury during deliberations, and general information about the deliberative process. In response, DeHaven told Juror No. 2 that he thought the jury had done the right thing, which Juror No. 2 understood as words of comfort following a difficult decision. DeHaven also informed Juror No. 2 that he had read the newspaper and indicated the articles supported the jury's verdict. He told her she would feel more sure about her decision once she was released and read the articles herself. DeHaven did not impart any information from the articles to Juror No. 2, and according to Juror No. 2, nothing he said affected her second stage verdict.

¶ 5 Juror No. 7 and Juror No. 8 testified they heard Juror No. 2 say she had spoken to DeHaven to report the guilty verdict. Both remembered Juror No. 2 stating that DeHaven had read the newspaper, but neither remembered Juror No. 2 stating anything about the newspaper supporting their verdict. Juror No. 7 and Juror No. 8 also testified that Juror No. 2's brief and lone statement about her contact with DeHaven had no affect on their second stage verdict. Based on this evidence, the trial court found a violation of its admonition but that no juror misconduct took place.⁵

¶ 6 Matthews maintains the trial court erred in its ruling, arguing he met his burden to show actual prejudice from the alleged juror misconduct since he established that Juror No. 2 violated the court's admonition and her oath by conversing with another person concerning the trial. 12 O.S.1991, §§ 576 & 581.⁶ Alternatively, because he showed a participating juror engaged in an unauthorized conversation about the case between the two phases of a capital trial, Matthews argues prejudice should be presumed as the case had been submitted and that the presumption cannot be rebutted by this record.

¶ 7 We have held that "[w]hen the alleged misconduct occurs subsequent to the submission of the case to the jury, the misconduct is presumed to have prejudiced the defendant and it is incumbent upon the State to show that he was not prejudiced." Wacoche v. State, 1982 OK CR 55, ¶ 14, 644 P.2d 568, 572. "However, where it appears that a juror converses with third parties during the trial and prior to deliberations, there must be a showing by the defendant that he was prejudiced." Id. Here, the contact occurred after the guilty verdict was reached and first stage deliberations ended, but before the beginning of the second stage. Based on Wacoche and the timing of the conversation, Matthews was required to show that he was prejudiced by the contact. Because first stage deliberations had ended and a verdict had been reached, we find, like the trial court, that the contact in no way affected the first stage verdict.

¶ 8 We must now determine if this contact affected second stage. Second stage is a separate proceeding solely to determine punishment and it is not error to allow the jury to separate after its verdict in the first stage of a bifurcated proceeding prior to the submission of any evidence in the second stage. See Frederick v. State, 1995 OK CR 44, ¶ 30, 902 P.2d 1092, 1099

; McCracken v. State, 1994 OK CR 68, ¶ 25, 887 P.2d 323, 330,

cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995); 21 O.S.Supp.1992, § 701.10(A). As noted above, the discussion between Juror No. 2 and DeHaven occurred between the first and second stage of trial and focused on the guilty verdict that had been reached. Though DeHaven told Juror No. 2 that he had read the newspaper and that it supported the jury's guilty verdict, there is no evidence Juror No. 2, or any other juror, knew of the content of any newspaper articles and more specifically that Matthews had been previously sentenced to death for Short's murder. According to the testimony, Juror No. 2 was not privy to any information that DeHaven gleaned from the newspaper that could have influenced her sentencing decision during second stage deliberations. Moreover, there is no evidence Juror No. 2 and DeHaven ever discussed the evidence in the case or how she should vote in the pending second stage proceeding. When Juror No. 2 appeared for the second stage, she heard the relevant evidence and received the appropriate instructions on sentencing without any outside influence. Just because DeHaven told her he believed she had done the right thing in finding Matthews guilty and that the newspaper supported that decision, we do not see how that information would make her more willing to vote for a death sentence or somehow conclude that death was the appropriate punishment without more, especially in light of our weighing scheme. Based on the testimony presented, we find the trial court correctly denied Matthews' motion because he failed to prove he was actually prejudiced from this inappropriate conversation.

¶ 9 Matthews also cites attorney Kenneth Adair's testimony to support his claim of juror misconduct. Adair testified that he saw DeHaven on Saturday, the 10th, and that DeHaven told him three female jurors called him when the jury was deadlocked in favor of acquittal. DeHaven claimed these jurors, who were in favor of guilt, asked him how to change the other's votes and DeHaven directed the jurors to certain evidence that he believed made Matthews' guilt clear. These allegations were explored at the post-trial hearings and no credible evidence was presented to show such communications occurred. All jurors testified they had no means of using a telephone during deliberations and that they were not aware of any other juror doing so. All cellular telephones and pagers were turned over to the bailiffs for safekeeping. Any information jurors needed relayed to their families was conveyed...