McCormick v. State

• Decision Date: 12 January 1993
• Docket Number: No. F-90-516,F-90-516
• Citation: 1993 OK CR 6,845 P.2d 896
• Parties: Michael McCORMICK, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 896

845 P.2d 896

Michael McCORMICK, Appellant, v. STATE of Oklahoma, Appellee.

No. F-90-516.

Court of Criminal Appeals of Oklahoma.

Jan. 12, 1993.

An Appeal from the District Court of Tulsa County; Clifford E. Hopper, District Judge.

Michael McCormick, Appellant, was tried by jury for the crime of Murder in the First Degree in Case No. CF-89-3589 in the District Court of Tulsa County before the Honorable Clifford E. Hopper, District Judge. Appellant was sentenced to serve a term of life in the custody of the Oklahoma Department of Corrections and has perfected this appeal. Judgment and Sentence is AFFIRMED.

Richard O'Carroll and Barry Derryberry, Asst. Public Defenders, Tulsa, for appellant.

Susan Brimer Loving, Atty. Gen., Thomas C. Riesen, Asst. Atty. Gen., Oklahoma City, Thomas Gilbert, Asst. Dist. Atty., Tulsa, for the State.

OPINION

LANE, Presiding Judge:

Appellant, Michael McCormick, was found guilty of the crime of Murder in the First Degree following a trial by jury in Tulsa County District Court Case No. CF-89-3589. Punishment was assessed at life in prison and Appellant was sentenced accordingly. He has appealed his conviction alleging six grounds of error: that unnecessarily gruesome photographs were improperly introduced at trial; that the instruction on flight shifted the burden of proof from the State; that the instructions concerning "heat of passion" did not set out the appropriate burdens of proof; that the instructions did not adequately define provocation; that the trial court violated the rules of sequestration when it allowed the jury to separate between the two stages of the trial; and that the trial should not have been bifurcated. We do not find any error which requires relief from this Court.

Immediately prior to the commission of this crime, Appellant was incarcerated for a period of nine months. During his incarceration, Appellant's wife, Marsha McCormick, became involved in an affair with her step-brother, Terry Wickham. Appellant became suspicious after his children mentioned that Wickham had been spending a lot of time with Marsha.

In the month before the present crime, Appellant received several weekend passes. During his second visit home, he confronted Marsha with his fears. Marsha told him that she was in love with Wickham and asked Appellant not to come home again until she had some time to think. Appellant agreed, expressing his desire to maintain the marriage. He told Marsha, however, that Wickham was "dead meat" if he confronted him.

On the weekend of Appellant's third pass, Marsha made arrangements to leave the couple's children at Appellant's parent's home. She told them that she would be working late. Appellant's brother picked him up from the penitentiary and took him to his parent's home, where he stayed until about 11:30 p.m.

Rather than working late, Marsha had met Wickham at a local bar. Wickham became very intoxicated, so Marsha took him to her house. Both went to bed nude.

After leaving his parent's home, Appellant went to Marsha's house. He went to the back door of the house which was next to the bedroom window. The window was open and Appellant could see his wife and Wickham in the bed. He testified that the two were engaged in sexual relations, however, Marsha testified that the two were just sleeping close together.

Finding the back door locked, Appellant ran around to the front door of the house and went inside. He got a large knife from the kitchen and went into the bedroom. Appellant stabbed Wickham three times in the chest while he was lying on the bed. Marsha sat up and started yelling. Appellant grabbed her and held her in a headlock for a short period of time. When she told him that he was killing her, Appellant let her go. Wickham apparently moved on the bed and Appellant stabbed him an additional ten times in the back. He then ran out of the house and drove away. He drove until he reached Independence, Kansas.

Once in Independence, Appellant called his mother. She advised him to turn himself in, which he did. He was then transported back to Tulsa for trial.

In his first allegation of error, Appellant claims that a series of photographs showing Wickham's injuries were unfairly gruesome and should not have been admitted into evidence. He claims that because the pictures depicted the body after it was moved from the bed to the floor, there was no relevant purpose for the pictures other than inflammation of the jury. At issue specifically are three pictures of portions of Wickham's body and two pictures of the bloody mess on the bed.

We have considered allegations of this nature in many cases. Our opinion in Lampkin v. State, 808 P.2d 694 (Okl.Cr.1991), succinctly states the rule of law which we will follow:

The decision to admit photographs into evidence is within the sound discretion of the trial court and will be disturbed only upon a showing of abuse of discretion. Lamb v. State, 767 P.2d 887, 891 (Okl.Cr.1988). Further, photographs are admissible if they are relevant and their probative value is not outweighed by their prejudicial value. Id.

In the Lampkin case, we held that pictures of a crime scene and of the victim (who was photographed at a hospital) were relevant to prove the corpus delicti. We find the same to be true in the present case. The two pictures showing the bed were relevant to the testimony of the witnesses concerning the placement of the bed and the view from the window. The three pictures of the victim showed the extensive wounds which were inflicted to the legs, back and chest.

Appellant claims that other evidence, such as pictures of the body after it was cleaned, could have been introduced and would have been less inflammatory. While that may well be true, there is no requirement that the visual effects of a particular crime be down played by the State. Gruesome crimes result in gruesome pictures. The only consideration to be made is whether the pictures are unnecessarily hideous, such that the impact on the jury can be said to be unfair. The pictures admitted ¹ were graphic, as are most pictures of dead, murdered bodies; however, as was true in Thomas v. State, 811 P.2d 1337, 1345 (Okl.Cr.1991), the pictures "were not so repulsive as to be inadmissible."

In his second proposition, Appellant claims that the instruction concerning the effect of "flight" to avoid arrest on the determination of guilt improperly shifted the burden of proof to Appellant to establish his innocence. ² Appellant cites a part of the last paragraph of the instruction as containing the offending language. That part reads:

If, after a consideration of all the evidence on this issue, you find beyond a reasonable doubt that the defendant was in flight, then this flight is a circumstance which you may consider with all the other evidence in the case in determining the question of the defendant's guilt or innocence. However, if you have a reasonable doubt that defendant was in flight, then the fact of any departure is not a circumstance for you to consider.

We have long held that evidence of flight may be considered as circumstantial evidence of guilt. Allen v. State, 783 P.2d 494 (Okl.Cr.1989); Wills v. State, 636 P.2d 372 (Okl.Cr.1981); Farrar v. State, 505 P.2d 1355 (Okl.Cr.1973). See also Croan v. State, 682 P.2d 236 (Okl.Cr.1984). The jury in this case was instructed that they first had to find that a "flight" did indeed occur, that it was "with a consciousness of guilt ... in order to avoid arrest for the crime with which he is charged." O.R. 34. If all these considerations were resolved against Appellant, the jury was then instructed to consider this conduct in the same manner as any other item of circumstantial evidence. We do not find that any part of the instruction improperly shifted the burden of proof of guilt from the State to Appellant.

The third issue presented concerns the instructions which the trial court gave the jury on Appellant's theory of defense. Throughout the trial, Appellant sought to prove that he was acting under the heat of passion. Accordingly, he requested and received appropriate instructions on the lesser included charge of Manslaughter in the First Degree. In this allegation of error, Appellant complains that the instructions as given did not properly define the burdens of proof associated with this theory of guilt.

Specifically, Appellant complains that his proposed instruction number 10 should have been given. That instruction states, in pertinent part:

... In this regard, you are instructed that the State has the burden of proving beyond a reasonable doubt that the Defendant did not act in the heat of passion before you could convict him of First Degree Murder. If the State failed to prove beyond a reasonable doubt that the Defendant did not act in the heat of passion, then you cannot convict the Defendant of First Degree Murder, but must consider whether the Defendant is guilty of the lesser included offense of First Degree Manslaughter.

Although Appellant cites a myriad of authority on the subject raised by this proposition, the State's brief does not address the issue except to point out that the determination of jury instructions is left to the discretion of the trial court. While this proposition is certainly true, it does not begin to answer the question as to whether that discretion was abused in the present case. Accordingly, we must consider the issue without relevant argument or authority from the State.

The problem presented here involves a unique situation in that the lesser included offense of manslaughter in this case functioned not as simply an alternative to the charge of murder, but as an affirmative defense to the crime charged by the State. The killing which gave rise to the current charges was never disputed by Appellant. Throughout the trial, however, Appellant maintained that he lacked the malice aforethought necessary to sustain a conviction for murder because h...