McCracken v. State

• Decision Date: 12 October 1994
• Docket Number: No. F-91-996,F-91-996
• Parties: Jerry McCRACKEN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 323

887 P.2d 323

Jerry McCRACKEN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-91-996.

Court of Criminal Appeals of Oklahoma.

Oct. 12, 1994.

Rehearing Denied Jan. 25, 1995.

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

Jerry McCracken, hereinafter referred to as Appellant, was convicted in the District Court of Tulsa County, Case No. CRF-90-4347, of four (4) counts of First Degree Murder in violation of 21 O.S.1991, § 701.7(A). Appellant was tried by jury who recommended the death sentence for each count, having found the existence of six (6) aggravating circumstances. The trial judge, The Honorable Clifford E. Hopper, sentenced accordingly. From this Judgment and Sentence, Appellant appeals to this Court. AFFIRMED.

Creekmore Wallace, Kelly Hake, Ron Wallace, Sapulpa, for appellant, at trial.

Tom Gillert, Sam Cox, Asst. Dist. Attys., Tulsa, for State, at trial.

W. Creekmore Wallace, II, Sapulpa, for appellant, on appeal.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for appellee, on appeal.

OPINION

JOHNSON, Vice Presiding Judge.

Jerry McCracken, hereinafter referred to as Appellant, was convicted in the District Court of Tulsa County, Case No. CRF-90-4347, of four (4) counts of First Degree Murder in violation of 21 O.S.1991, § 701.7(A). Appellant was tried by jury who recommended the death sentence for each count, having found the existence of six (6) aggravating circumstances. The trial judge, The Honorable Clifford E. Hopper, sentenced accordingly. From this Judgment and Sentence, Appellant appeals to this Court.

STATEMENT OF FACTS

The record reveals that Appellant was on pre-parole release from the Oklahoma Department of Corrections and was residing at a facility run by the Tulsa Action Group. On Monday, October 9, 1990, Appellant purchased a .22 caliber gun from a co-worker. On the evening of October 13, 1990, Appellant and co-defendant, David Lawrence, were at the Ferndale Lounge in Tulsa, Oklahoma. One witness, Dee Dee Nelson, testified that she had been working at the Lounge earlier that evening and noticed that Appellant and Lawrence appeared "nervous." Another witness, Patricia Harrington, testified that she was at the Lounge at approximately 7:30 p.m. that evening until approximately 12:30 a.m. While there, she witnessed a confrontation between Appellant and another patron named Randy Dunn, who she described as drunk. She saw Mr. Dunn slam a knife on the bar and say to Appellant, "If you want some shit, you can get it right here", to which, Appellant picked up the knife and echoed the same sentiment. Ms. Harrington, who owned a bar, described both Appellant and Mr. Lawrence as "very drunk."

Donald Tillerson testified that he was at the Lounge that evening for approximately fifteen minutes before he departed at about 12:55 a.m. Tillerson testified that he observed and heard Appellant and Mr. Lawrence engage in what he called, "institutional talk", saying to each other that they were not afraid of "getting an ass whuppin' " and they weren't afraid to shoot somebody. When he left the Lounge, there were six people there, the four victims, Appellant and Mr. Lawrence. Witness, Cathrine Dacre, testified that she left simultaneously with Mr. Tillerson and the same six people remained.

Witness Leonard Helton testified that he was at the Lounge between 12:15 and 12:30 a.m. He left and returned a little after 1:00 a.m. when as he entered, he saw one of the victims, Steve Smith, lying up against a wall, covered with blood on his head and chest. He went across the street and reported what he saw to three Tulsa police officers who had stopped at the convenience store.

Appellant testified that he had purchased a .22 caliber gun several days before the incident to protect himself from the gangs in the neighborhood and to protect his girlfriend. He planned on selling the gun after his release from pre-parole prior to his return to his home in Tennessee.

On the night in question, Appellant and Mr. Lawrence arrived at the Lounge between 7:00 and 8:00 p.m. During the course of the evening, Mr. Lawrence asked to see the gun and inquired as to whether Appellant would "sell it to him, let him keep it for awhile." Appellant let Mr. Lawrence have the gun. Appellant recalled that Mr. Lawrence kept joking about robbing the place, but he did not take him seriously. He testified that Lawrence went to the bathroom and when he came back, Lawrence started the robbery by pointing the gun up in the air and declaring, "This is a robbery." He described in detail how Lawrence shot the four victims.

Mr. Lawrence pled guilty earlier to the crime charged and testified that it was Appellant who committed the robbery and who shot the four victims.

ISSUES RELATING TO GUILT-INNOCENCE

Appellant has presented twenty-two (22) assignments of error. In his first assignment of error, Appellant asserts that the trial court erred in overruling his motion to quash alleging there was insufficient evidence presented at the preliminary hearing. We do not agree. At preliminary hearing, the State only has the burden to show that an offense has been committed and that there is probable cause that the defendant committed the offense. See Baker v. State, 593 P.2d 100 (Okl.Cr.1978). Appellant complains that the evidence merely showed that Appellant was present at the scene and that there was nothing to show that he was involved in the crimes. We do not agree. The evidence revealed that Officer Makinson of the Tulsa Police Department arrested Appellant. Officer Makinson testified that Appellant told him that he had his revolver with him at the Lounge and that co-defendant Lawrence decided to rob the bar. Additionally, Appellant told him that Mr. Lawrence did the actual shooting. This assignment is without merit.

In his second assignment, Appellant urges that the trial court erred in allowing the prosecutor to lead co-defendant Lawrence, who testified as a witness for the State. He cites three instances to which there were objections, one of which was sustained. Appellant has cited no authority for this assignment of error. However, we have reviewed the instances in question and cannot find that they determined the sentence or affected the verdict.

Third, Appellant asserts that the trial court erred in not allowing him to impeach co-defendant David Lawrence, by admitting into evidence his video-taped statement to the authorities. It is conceded that in the video-taped statement, Mr. Lawrence recounted the events and circumstances leading up to the robbery and the murders. He maintained that he was unaware that Appellant was planning a robbery and that it was Appellant who shot the four victims. At trial, he admitted his involvement in the robbery, but he still maintained that he did not know that Appellant had planned on harming anyone. A transcript of the video-taped statement was available.

Appellant argues that in view of the fact that the defendants point the finger at each other, credibility and reliability are key to determining which one actually shot the victims. Since Mr. Lawrence claimed that at the time he made the statement he was nervous, scared, at times stuttering, Appellant contends that the video-taped statement "as perceived visually and audibly was the best and fairest measure of his truthfulness". He states that Mr. Lawrence had more time to reflect and prepare prior to giving his statement for his plea of guilty and again at Appellant's trial. Appellant points out that while Mr. Lawrence maintained that he was now telling the truth (at trial), "the jury should not be able to rely on him to say when he's lying but should be allowed to make their own judgment." Appellant made several attempts to have the video-taped statement shown to the jury. In the first instance, the trial court agreed. However, when the State objected, the trial court would not allow the video-taped interview to be viewed. In the last attempt to have the video-taped statement shown to the jury, the record reflects the following transpired:

MR. WALLACE: Let the record further reflect that before the exception, this Court indicated to me, show it. For the life of me, I don't know why you changed your mind, sir. Originally, when I asked to show it, you stated for the record, show it.

THE COURT: Let me make the record very clear. The way the conversation that I had--the little bit of conversation that I had heard before and the presence of the tape in your possession and that the District Attorneys had agreed to furnish you with the equipment. I thought it was being offered by agreement of the parties. Once an objection was made of record, then we will proceed according to the rules of procedure. I'll give you an exception to the Court's ruling.

MR. WALLACE: Could the Court, so I could research it over the lunch hour, tell me the basis for your objection.

THE COURT: What?

MR. WALLACE: Could the Court, so I could review it over the lunch hour, tell me the specific reason for the Court granting the objection?

THE COURT: I just told you, and the record is replete with it. The Court will be in recess till 1:25.

The extent of cross-examination rests in the sound discretion of the trial court and this Court will reverse only if that discretion is clearly abused, resulting in manifest prejudice to the accused. Hickerson v. State, 565 P.2d 684 (Okl.Cr.1977). We have viewed the video tape in question and find that any error in failing to allow the jury to view the tape was harmless in light of the overwhelming evidence of Appellant's guilt. The tape does not reflect what is stated by Appellant. Appellant had proper cross-examination by transcript of the tape. The actual tape would not have changed the outcome.

In his fourth assignment of error, Appellant claims that the trial judge's comments, combined with his repeated overruling of defense objections, destroyed...