McElmurry v. State

• Decision Date: 02 December 2002
• Docket Number: No. D-2000-884.,D-2000-884.
• Citation: 2002 OK CR 40,60 P.3d 4
• Parties: Harold Loyd McELMURRY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

60 P.3d 4

2002 OK CR 40

Harold Loyd McELMURRY, Appellant, v. STATE of Oklahoma, Appellee.

No. D-2000-884.

Court of Criminal Appeals of Oklahoma.

December 2, 2002.

Thomas Guilioli, District Attorney, Gregory Stidham, Assistant District Attorney, Eufaula, OK, for the state at trial.

James C. Bowen, Okla. Indigent Defense System, Capital Trial Division, Sapulpa, Ok, Richard Lerblance, Hartshorne, OK, for defendant at trial.

Sandra Mulhair Cinnamon, Michael D. Morehead, Okla. Indigent Defense System, Capital Direct Appeals Division, Norman, OK, for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Assistant Attorney General, Oklahoma City, OK, for appellee on appeal.

OPINION

LILE, Judge.

¶ 1 Harold Loyd McElmurry, was tried by jury before the Honorable Steven W. Taylor, District Judge, and convicted of two counts of First Degree Murder with Malice Aforethought¹ and one count of Robbery with a Dangerous Weapon² in McIntosh County District Court Case No. CF-99-154A, and with one count of Larceny of a Motor Vehicle³ in Case No. CF-99-153B. The jury found four aggravating circumstances as to each murder count and fixed punishment at death on each count. The jury fixed punishment for the robbery at one hundred (100) years imprisonment and for the motor vehicle larceny at twenty (20) years imprisonment. The four statutory aggravating circumstances⁴ found by the jury as to each murder count were:

1. The defendant knowingly created a great risk of death to more than one person;

2. The murder was especially heinous, atrocious, or cruel;

3. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and

4. At the present time there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society.

¶ 2 The trial court imposed judgment and sentence on June 16, 2000, and set punishment on each charge in accordance with the jury verdicts.⁵ The trial court ordered the Twenty (20) Year Sentence in Case No. CF-1999-153A, Larceny of a Motor Vehicle, to run concurrently with the One Hundred (100) Year Sentence in Case No. CF-1999-154A, Count 3, Robbery with a Dangerous Weapon. Appellant has filed his direct appeal in this Court from these judgments and sentences.⁶

FACTS

¶ 3 Robert and Vivian Pendley lived in a rural area west of Eufaula. Appellant and his wife, Co-Defendant Vickie McElmurry, had previously done yard work for the Pendleys. During the two or three weeks since he had last worked for them, Appellant had been thinking about robbing and murdering them, and had been discussing his plan with Vickie. Robert Pendley was eighty years old, and in a wheelchair. His wife, Vivian Pendley, was seventy-five years old. Appellant believed there was a warrant out for his arrest on a probation violation and that he would likely go to prison. He had lost his job, had little money, and could not get a tag for a car he had bought.

¶ 4 He assumed the Pendleys had a lot of money, and he knew they had a car. He said he needed the money and needed something to get on with his life. So he decided to rob, or rob and murder, the Pendleys. On Friday, July 30, 1999, Appellant and his wife began a two-day journey on foot to the Pendley residence. They stopped at Mark's Country Store approximately one mile west of Eufaula on July 30 to buy some groceries. Then they continued on to the Pendleys' through the woods, so they would not be seen.

¶ 5 Upon arriving at the Pendley residence on Sunday afternoon, August 1, the Defendants knocked on the Pendley's door and were invited into their home. The Defendants and the Pendleys moved outside because the Defendants were smoking cigarettes.

¶ 6 After a while, the Appellant and Vickey left the Pendley residence and walked around in a wooded area across the road for one or two hours, trying to decide whether to rob, or to rob and murder, the Pendleys. Appellant says he told his wife, "I wanted to kill them but I didn't feel right about it. I didn't care for Vivian much, but I liked Robert. Robert was always real nice to me."

¶ 7 Appellant did not mention drugs in his statements to police when he was arrested, but when he testified at the preliminary hearing several months later, he claimed that he and his wife each shot-up or injected "a little bit of crank," or methamphetamine, 30 or 40 minutes before returning to the Pendleys' house. Appellant admitted that he knew what he was doing and knew that he was going to rob the Pendley's when he went back over to their house. He said there wasn't any question in his mind about it.

¶ 8 When the Defendants returned to the residence, the Pendleys came out into the garage. Appellant and Robert Pendley remained there while Vivian Pendley and Vickie McElmurry walked out into the backyard. McElmurry said in his written statement August 6, 1999:

"Vivian and Vickie were away [from] the house, and I decided to go ahead and kill Robert. Robert and I were in the garage. I had picked up some scissors in the house that I intended to use to kill Robert. All of a sudden I pulled out the scissors and stabbed Robert 6 or 7 times in the chest while he was sitting in his chair. He fell out of the chair and I hit him in the head with a hoe two or three times."

Appellant only stopped when the hoe handle broke. Rows of puncture wounds were also found later on Mr. Pendley's back which were consistent with multiple blows from the metal tines of a garden rake that was found in the garage.

¶ 9 Vivian Pendley walked into view and saw what Appellant was doing to her husband. When Vivian started to run, Appellant yelled to Vickie to hold her until he could get there. He stabbed Vivian repeatedly and then dragged her into the garage, leaving a bloody trail that led up to her body.

¶ 10 Appellant then discovered that Robert was still alive and picked up a three-foot pipe and began hitting him in the head until his skull was shattered. Then, seeing that Vivian was still alive, he beat her with the iron pipe until her skull was also shattered.

¶ 11 The Defendants took seventy dollars, some costume jewelry, the car keys, and two handguns, including a German Lugar pistol, and fled the scene in the Pendleys' Oldsmobile. After spending a day in Houston, Texas, they drove to old Mexico where they stayed two or three days. On August 5, 1999, they crossed the border from Mexico back into the United States near Laredo, Texas. Peter Brewster, a United States Immigration officer, testified that Appellant was driving the Pendleys' car when it crossed the bridge into the United States. Vickie McElmurry was a passenger in the car.

¶ 12 After Appellant was taken into custody, he gave statements to Texas Ranger Doyle Holdridge. Appellant confessed to Holdridge that he murdered the Pendleys, robbed them, and took their car. ¶ 13 The medical examiner, Dr. Donald Distefano, testified that both Vivian Pendley and Robert Pendley died as a result of multiple blunt and sharp force injuries.

¶ 14 Additional facts will be presented where relevant to specific propositions of error.

VOIR DIRE ISSUES

1. Record of Prospective Jurors' Names

¶ 15 In his first proposition, Appellant claims that his direct appeal counsel and this Court cannot conduct a complete and adequate review of his case because there are several instances where the transcript of voir dire does not indicate the names of prospective jurors who were being addressed or who were responding to questions from the judge or counsel. He claims that as a result, his direct appeal counsel is unable to determine whether he received reasonably effective assistance of trial counsel.

¶ 16 Appellant claims that during a portion of the voir dire between pages 169 and 235 of the trial transcript several responses of prospective jurors, who cannot now be identified, reflected bias against the defense, that reasonably effective trial counsel should have challenged the prospective jurors who made those remarks, and that his appellate counsel cannot determine whether those prospective jurors were excused by peremptory challenges of either party, or whether they actually sat on the final jury that heard Appellant's case. At no time did trial counsel object to the failure of any party or the judge to address a juror by name. We therefore examine Proposition One for plain error only. Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 695.

¶ 17 Appellant cites Oklahoma cases Van White v. State, 1988 OK CR 47, 752 P.2d 814, and Mooney v. State, 1999 OK CR 34, 990 P.2d 875, for the proposition that it is the duty of the State in capital cases to provide a complete transcript of trial so that his appellate counsel and this Court will be able to conduct an adequate review of his trial counsel's performance.

¶ 18 We reversed the conviction and death sentence in Van White and remanded for a new trial because the court reporter provided no transcript of voir dire, despite Appellant's having requested the transcription. Van White, 1988 OK CR 47, ¶ 14, 752 P.2d at 820.

¶ 19 In Van White, in an opinion by Judge Parks, this Court said that "in order to effectuate this Court's mandatory sentence review in capital cases, a complete stenographic record must be taken in all capital proceedings," adopting the position taken by Judge Brett in his specially concurring opinion in Kelly v. State, 1984 OK CR 99, 692 P.2d 563, 565-66 (Brett, J., specially concurring). Van White, 1988 OK CR 47, ¶ 13, 752 P.2d at 820; 21 O.S.2001, § 701.13(C)(1). We did not hold in Van White that every failure to provide a complete trial transcript in a death penalty case would be reversible error per se. In fact, we found that failure to provide a transcript of the hearing on Van White's application for a competency hearing was not reversible error. Id.

¶ 20 Nor have we held in cases since Van White that a failure to provide a complete trial...