McCarty v. State

• Decision Date: 12 September 1995
• Docket Number: No. F-89-1057,F-89-1057
• Parties: Curtis Edward McCARTY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 110

904 P.2d 110

Curtis Edward McCARTY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-89-1057.

Court of Criminal Appeals of Oklahoma.

Sept. 12, 1995.

An Appeal from the District Court of Oklahoma County; Jack R. Parr, District Judge.

David Autry, Norman, Don Ed Payne, Hugo, for appellant at trial.

Robert H. Macy, Barry Albert, Oklahoma City, for State at trial.

Jamie D. Pybas, Assistant Appellate Public Defender, Norman, for appellant on appeal.

Susan Brimer Loving, Attorney General of Oklahoma, Dan Connally, Assistant Attorney General, Oklahoma City, for appellee.

OPINION

STRUBHAR, Judge:

The homicide in this case occurred in the early morning hours of December 10, 1982. Almost three and one half years later on March 17-26, 1986, Appellant was tried by a jury in the District Court of Oklahoma County, Case No. CRF-85-2637. Appellant was convicted of First Degree Murder and sentenced to Death. This conviction was appealed to this Court in Case No. F-86-343. In an opinion handed down in December of 1988, Appellant's case was reversed and remanded for a new trial based upon numerous trial errors. McCarty v. State, 765 P.2d 1215 (Okl.Cr.1988). Appellant was retried in September of 1989, almost seven years after the crime was committed. Again, the jury found him guilty of First Degree Murder and assessed punishment at Death. Appellant was sentenced accordingly. It is from this Judgment and Sentence that Appellant has perfected his appeal to this Court.

FACTS

On December 5, 1982, due to marital problems, Dale Coffman moved out of the house that he shared with his wife Melanie Coffman. On that same day, Pam Willis moved into the house with Melanie. Close to 1:15 a.m. on December 10, 1982, Dale called the house to talk with Melanie, but when the phone was answered no one spoke. He hung up and called again. This time he heard a woman's voice on the other end call out "help" or "Dale, help me." ¹ After this, Dale drove by Melanie's house and noticed the lights were on and Pam's car was in front but Melanie's car was not there. He did not go inside, but went first to a nearby convenience store and called the house to see if Melanie was there. No one answered the phone. After he drove back to the house, Dale walked to the front porch where he noticed that one of the windows to the side of the front door was broken. He looked through the front door window into the house and saw nothing. Dale walked to the side of the house and looked into the side windows where he observed a pair of bare legs on the floor between the dining room and the kitchen area. Because he could not see the rest of the person he did not know who it was. He ran back to the front porch and beat on the door but no one responded so he ran to get help. Dale called the police from a neighbor's home and then waited for them to arrive. The police arrived at around 2:00 a.m., within three or four minutes of the call. One of the officers kicked in the front door and entered the house. Dale followed and observed the naked body of a woman laying on the floor. Because her face was covered Dale was unable to identify her. However, she was eventually identified as Pam Willis. Pursuant to subsequent investigation Appellant was arrested and charged with the murder of Pam Willis. Additional facts will be discussed as necessary in the following propositions of error.

PRETRIAL ISSUES

In his tenth assignment of error, Appellant argues the trial court improperly restricted his questioning of jurors during voir dire. Appellant complains defense counsel was prohibited from asking potential jurors to speculate about circumstances they would consider to be mitigating. This Court has, in the past, upheld a trial court's ruling prohibiting this line of questioning, finding that such ruling was not an abuse of discretion. See Fox v. State, 779 P.2d 562, 569 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990). We are not now persuaded to hold otherwise, especially in light of the fact that defense counsel was able to determine, through proper questioning, whether the jurors could follow instructions to consider mitigating evidence.

Appellant also argues defense counsel was improperly restricted from questioning the potential jurors regarding the strength of their opinions on the death penalty. A review of the record does not support this assertion. Defense counsel was prohibited from informing the jurors that if they could not agree upon a verdict of death, the trial court would sentence Appellant to life. However, defense counsel was not prohibited from discussing with the jurors the strength of their opinions about the death penalty. This proposition is without merit.

Appellant argues in proposition eleven that the trial court erred when it refused defense counsel's request to voir dire the jurors individually because of extensive pretrial publicity concerning this case. This Court has noted there is no right to sequestered, individualized questioning during jury selection although such may be allowed at the discretion of the trial court. Cannon v. State, 827 P.2d 1339, 1341 (Okl.Cr.1992). Further, "[t]he existence of extensive pretrial news coverage does not itself demand individual or sequestered voir dire.... The crux of the issue is whether defendant can receive fair and impartial jurors." Vowell v. State, 728 P.2d 854, 858 (Okl.Cr.1986).

The record reflects that at the time defense counsel argued the motion to have jurors questioned individually on the question of pretrial publicity, counsel acknowledged there had not been much recent publicity concerning this case. Rather, counsel's request was based upon concern that jurors might remember publicity from the first trial in 1986. The trial court ruled that while he would not start out with individual voir dire, he would conduct individual voir dire if something occurred which indicated such to be necessary. Indeed, the record reflects the trial court did follow through with this ruling. At the beginning of the second day of voir dire, defense counsel called to the trial court's attention that one of the television news stations had run a story on the case the preceding night. Defense counsel requested the trial court to ask the jurors as a whole if they had seen the story and then question individually those who indicated that they had. The trial court complied with this request. From this, it appears the trial court proceeded in a way which allowed defense counsel to adequately determine whether potential jurors had been prejudiced by pretrial publicity. We find the trial court did not abuse its discretion in so ruling.

FIRST STAGE ISSUES

Appellant argues in his first proposition that the evidence presented at trial was insufficient to support his conviction for First Degree Murder. In support of this argument, Appellant directs this Court's attention to much of the circumstantial evidence introduced at trial. Appellant approaches this proposition by discussing separately each portion of evidence and how it falls short of proving his guilt. He first complains about the testimony of forensic chemist Joyce Gilchrist concerning the hair comparison analysis. Gilchrist testified that sixteen scalp hairs and one pubic hair found at the scene of the homicide were consistent with Appellant's hair and therefore, could have come from him. She also testified that a single fragment of scalp hair removed from the screen that had been pulled back from the window in the bedroom exhibited similarities to Appellant's scalp hairs. However, because of the damage to this hair, no meaningful conclusion could be reached. Appellant argues this evidence was not inconsistent with innocence for several reasons. He first notes that Gilchrist acknowledged hair comparison cannot be used to make positive identification. Further, because Appellant had admittedly been in the house on several occasions prior to the night of the homicide, he argues that evidence of his hair being found at the crime scene does nothing to support the State's case establishing his presence in the house at the time the homicide was committed.

The limited value of hair comparison evidence was discussed at length during trial. While Gilchrist readily acknowledged hair comparison cannot be used to make positive identification, she also noted that it can positively exclude persons as donors of the hair. In fact, she testified that no hairs found in the residence or on Willis' body could have been deposited by several other persons who had provided hair samples, including Willis' boyfriend, Kevin Bowser, and Melanie Coffman's husband, Dale, both of whom had either spent time at the house or around Willis shortly before the homicide. Further, one of the scalp hairs which Gilchrist testified was consistent with Appellant's scalp hair was found inside a knife wound on Willis' body. The jury may reasonably have found this testimony probative as to the issue of whether Appellant was present at the time the crime was committed. Accordingly, while the testimony regarding hair comparison analysis is not dispositive, it is not insignificant.

Appellant also argues that flaws in the chain of custody concerning the hair evidence render its reliability highly suspect. He specifically refers to discrepancies between Gilchrist's forensic report and her testimony regarding a pubic hair found on Willis' chest. At trial Gilchrist testified this hair was consistent with pubic hairs taken from Appellant. However, in her forensic report she initially noted that the hair was inconsistent with hairs taken from either Willis or Appellant. This discrepancy was discussed at trial where Gilchrist explained that it was due to a typographical error made by her secretary which she failed to notice prior to signing the forensic report. She testified that her work notes reflected the pubic hair at issue was consistent with those submitted by Appellan...