Mayes v. State

• Decision Date: 24 June 1994
• Docket Number: No. F-90-776,F-90-776
• Citation: 887 P.2d 1288,1994 OK CR 44
• Parties: William Raymond MAYES, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1288

887 P.2d 1288

William Raymond MAYES, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-90-776.

Court of Criminal Appeals of Oklahoma.

June 24, 1994.

Order Denying Rehearing,

Directing Issuance of Mandate and

Correcting Opinion Aug. 4, 1994.

Certiorari Denied Feb. 27, 1995.

See 115 S.Ct. 1260.

An Appeal from the District Court of Jefferson County, George W. Lindley, District Judge.

William Raymond Mayes, Appellant, was tried by jury and convicted of Count I, Murder in the First Degree (21 O.S.Supp.1982, § 701.7); and Count II, Conspiracy to commit Murder (21 O.S.1981, § 421) in Case No. CRF-89-77, in the District Court of Jefferson County. The jury found the existence of one aggravating circumstance and recommended punishment of death for murder and ten (10) years imprisonment and a $5,000 fine for Conspiracy to Commit Murder. The trial court sentenced accordingly. From these judgments and sentences Appellant has perfected this appeal. AFFIRMED.

Robert Prince, Lawton, Trial Counsel for appellant.

Melvin R. Singleterry, Dist. Atty., Nolan Hackler, Asst. Dist. Atty., Waurika, Trial Counsel for appellee.

Jamie D. Pybas, Asst. Appellate Public Defender, Norman, Appellate Counsel for appellant.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, Appellate Counsel for appellee.

OPINION

LUMPKIN, Presiding Judge:

Appellant William Raymond Mayes was tried by jury and convicted of Count I, Murder in the First Degree (21 O.S.Supp.1982, § 701.7(A)); and Count II, Conspiracy to commit Murder (21 O.S.1981, § 421), Case No. CRF-89-77, in the District Court of Jefferson County. The jury found the existence of one aggravating circumstance (the murder was especially heinous, atrocious or cruel (21 O.S.1981, § 701.12(4)) and recommended punishment of death for murder; and ten (10) years imprisonment and a $5,000 fine for Conspiracy to Commit Murder. The trial court sentenced accordingly.

For his first proposition of error, Appellant complains insufficient evidence existed to convict him for first degree murder. We address that issue in Section II.A., below. Briefly, the evidence reveals on November 19, 1987, the body of Phillip Trammell was found lying near the front door of his rural home near Waurika; he had been beaten, stabbed and shot. Appellant had begun an illicit sexual relationship with Margaret Trammell some time prior to the murder, and during the course of this relationship the two decided Margaret's husband, Phillip Trammell, should be killed for his sizeable insurance policy. Before the death, Appellant had told people Margaret Trammell promised him a new car and several thousand dollars if he would kill Phillip, or find someone who would. Several months after the murder, Appellant told others Phillip had been beaten with a baseball bat; it was not until after Appellant made those statements that authorities found a portion of a baseball bat handle mixed in with Phillip's clothing taken from the scene. Other evidence will be discussed below.

I. ISSUES RELATING TO PRE-TRIAL PROCEEDINGS

A.

Appellant in his eleventh assignment of error claims the trial court erred in denying him a change of venue. The record includes a number of newspaper articles about the murder, including one detailing victim Phillip Trammell's service to the community. There are also articles about Margaret Trammell's hearings, as well as articles which report a dissatisfaction among county residents and a resulting grand jury to investigate the lack of prosecution for several crimes, of which the murder was one.

However, mere publicity by itself does not establish Appellant did not receive a fair trial. The presumption is that a defendant can receive a fair trial within the county in which he is charged. A defendant must rebut this presumption by clear and convincing evidence not only that the jurors were exposed to pretrial publicity, but also that he was prejudiced by it as a result. Tibbs v. State, 819 P.2d 1372, 1377 (Okl.Cr.1991); See also Bear v. State, 762 P.2d 950, 953 (Okl.Cr.1988); Wilkett v. State, 753 P.2d 383, 388 (Okl.Cr.1988); Rojem v. State, 753 P.2d 359, 365 (Okl.Cr.1988).

The trial court in announcing his decision clearly said he felt the defendant had not met this burden. However, he added that he would reconsider his decision "if the voir dire discloses a problem." We have reviewed the voir dire, and did not find the "influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings," Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975).

Additionally, we examined evidence for its use in the second test, which focuses on the entire circumstances surrounding Appellant's trial to determine whether Appellant received a "fundamentally fair" trial. Id. at 799, 95 S.Ct. at 2036. A review of the articles reveals mostly recitation of allegations by authorities that constituted the prosecution's case-in-chief at trial. Therefore, the articles were not harmful to the Appellant. Many dealt with Margaret's proceedings; and Appellant has presented us no evidence to indicate these interfered with his right to a fair trial, especially as Margaret was tried separately. Others refer to the efforts of local authorities in investigating the case. Simply because an article casts a local official in a favorable light does not necessarily mean Appellant is simultaneously cast in an unfavorable one.

Appellant also complains several people knew or knew of the victim or some witnesses. This Court has continually held "a fair jury does not necessarily require totally uninformed jurors." Brecheen v. State, 835 P.2d 117, 120 (Okl.Cr.1992). As stated in Hale v. State, 750 P.2d 130, 134 (Okl.Cr.1988):

In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality and would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Id. (quoting Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961)). This concept of what constitutes a suitable juror was reaffirmed by this very same language in Murphy, 421 U.S. at 799-800, 95 S.Ct. at 2035-36.

We have reviewed the transcript of voir dire, and are satisfied those seated on the jury who had some knowledge of the case either formed no opinion based on what they had read or heard, or could set aside whatever vague impressions they had formed. This information was considered, see Shelton v. State, 793 P.2d 866, 870-71 (Okl.Cr.1990), along with the remainder of the circumstances surrounding the trial properly in the record before us, see Bear, 762 P.2d at 953; and we conclude Appellant "has failed to show that the setting of the trial was inherently prejudicial or that the jury selection process of which he complains permits an inference of actual prejudice." Murphy, 421 U.S. at 803, 95 S.Ct. at 2038.

B.1.

Appellant next complains errors occurred during voir dire which violated his right to a fair trial. He first complains the trial court asked a confusing question to the jurors to determine whether they could impose the death penalty. The record shows the trial court asked "[i]n a case where the law and evidence warrant, in a proper case, could you without doing violence to your conscience, consider a verdict imposing the death penalty?"

This Court has repeatedly held this question is improper, as it tends to be confusing. Although we have affirmed cases in which it was used in the past, we have also found that violence done to one's conscience is not the point of the Witherspoon voir dire examination. Duvall v. State, 825 P.2d 621, 630 (Okl.Cr.1991). The only legitimate concern being whether each jury member will 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. To make this clear to a prospective juror, we modified OUJI-CR 104.9 Alternate 2 to read as follows:

"If selected as a juror, and you find that the law and evidence in this case warrants the recommendation of the death penalty, could you vote to recommend that penalty?"

Id. The proper inquiry is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); Banks v. State, 701 P.2d 418, 422 (Okl.Cr.1985). However, this error does not automatically necessitate reversal. Id. This Court will not reverse based on an error of the trial court unless that error has resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. 20 O.S.1991, § 3001.1.

Appellant complains of two instances here. In each instance, the judge asked the above question. After venireperson Hutcheson said she could not impose the penalty, the court asked:

Are you--or let me simply ask it this way. If you found beyond a reasonable doubt that the Defendant was guilty of murder in the first degree, and if under the evidence, facts and circumstances of the case the law would permit you to consider a sentence of death, are your reservations about the death penalty such that regardless of the law, the facts and the circumstances of the case, you would not consider inflicting--

BY JUROR HUTCHESON: Yes, sir.

BY THE COURT:...