Mitchell v. State
| Decision Date | 30 May 2006 |
| Docket Number | No. D-2002-1427.,D-2002-1427. |
| Citation | 136 P.3d 671,2006 OK CR 20 |
| Parties | Alfred Brian MITCHELL, Appellant v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Gina Walker, Eugenia Bauman, Anythony Sykes, Assistant Public Defenders, Oklahoma County P.D.'s Office, Oklahoma City, OK, attorneys for defendant at trial.
Richard Wintory, Joellyn McCormick, Assistant District Attorneys, Oklahoma County District Attorneys Office, Oklahoma City, OK, attorneys for the State at trial.
Andrea Diglio Miller, Assistant Public Defender, Oklahoma County Public Defenders Office, Oklahoma City, OK, attorney for appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer J. Dickson, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.
¶ 1 In 1992, Alfred Brian Mitchell, Appellant, was tried by a jury and convicted of First-Degree Malice Aforethought Murder, in violation of 21 O.S.1991, § 701.7, Robbery with a Dangerous Weapon, in violation of 21 O.S.1991, § 801, Larceny of an Automobile, in violation of 21 O.S.1991, § 1720, First-Degree Rape, in violation of 21 O.S.1991, §§ 1111, 1114, and Forcible Anal Sodomy, in violation of 21 O.S.1991, § 888, in the District Court of Oklahoma County, Case No. CF-91-206. In the sentencing phase, the jury recommended a death sentence for the murder after finding: 1) the murder was "especially heinous, atrocious, or cruel"; 2) the murder was "committed for the purpose of avoiding or preventing a lawful arrest or prosecution"; and 3) there was a "probability that [Mitchell] would commit criminal acts of violence that would constitute a continuing threat to society."1 In accordance with the recommendations of the jury, the trial court sentenced Mitchell to death for the murder and to imprisonment for a total of 170 years for the other felonies.2
¶ 2 Mitchell appealed to this Court, and we affirmed his convictions and his sentences.3 This Court denied Mitchell's petition for rehearing, and the United States Supreme Court denied his petition for certiorari.4 Mitchell then sought post-conviction relief in this Court, which was denied.5 And the Supreme Court again denied Mitchell's petition for certiorari.6
¶ 3 Mitchell then pursued federal habeas corpus relief in the United States District Court for the Western District of Oklahoma.7 The federal district court, the Honorable Ralph G. Thompson, found that the State violated Brady v. Maryland,8 by failing to turn over exculpatory DNA evidence relating to samples taken from the victim and the crime scene.9 The court granted habeas relief on Mitchell's convictions for rape and sodomy, since they were based upon this evidence and the presentation of highly misleading/untruthful testimony from Joyce Gilchrist, a forensic chemist employed by the Oklahoma City Police Department at the time.10 The federal district court also strongly criticized the prosecutors in Mitchell's original trial regarding their treatment of this evidence.11 The court vacated Mitchell's rape and sodomy convictions, but left his other convictions and sentences intact.12
¶ 4 Mitchell appealed to the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit upheld Mitchell's first-degree murder conviction, but vacated his death sentence and ordered a new capital sentencing proceeding.13 The Tenth Circuit concluded that if Mitchell's jury had not been presented the false and misleading evidence relating to the rape and sodomy charges—along with the improper prosecutorial argument—there was a reasonable probability that Mitchell would not have been sentenced to death.14
¶ 5 Pursuant to 21 O.S.2001, § 701.10a, a new jury was impaneled for the resentencing trial, which was held before the Honorable Susan P. Caswell on October 21-31, 2002. This time the jury found two aggravating circumstances: 1) the murder was "especially heinous, atrocious, or cruel"; and 2) the murder was "committed for the purpose of avoiding or preventing a lawful arrest or prosecution."15 The jury again recommended the death penalty, and the trial court so ordered. From this judgment and sentence, Mitchell appeals.16
¶ 6 The facts of this case were summarized in this Court's opinion on direct appeal, which is incorporated herein by reference.17 Briefly stated, on January 7, 1991, Alfred Brian Mitchell found Elaine Scott alone at the Pilot Recreation Center in Oklahoma City.18 The evidence presented at the resentencing established that Mitchell first attacked Scott near the Center's library, where a spot of blood, one of Scott's earrings, and a sign that she had been hanging were later found on the floor. Scott apparently ran for the innermost room of the Center's staff offices—as she had told her mother she would if she ever found herself in a dangerous situation at the Center—where there was a phone and a door that she could lock behind her. She almost made it.19 Although the exact sequence of events is unclear, the State established that Scott's clothing was taken off and that a violent struggle ensued, in which Mitchell beat and battered Scott, using his fists, a compass, a golf club (which ended up in pieces), and a wooden coat rack. The forensic evidence—including the condition of Scott's nude, bruised, and bloodied body—established that she was moving throughout the attack, until the final crushing blows with the coat rack, which pierced her skull and ended her life.20
¶ 7 Mitchell's first three propositions of error all relate to the aggravating circumstance that his murder of Elaine Scott was "committed for the purpose of avoiding or preventing a lawful arrest or prosecution," i.e., the "avoid arrest aggravator."21 This Court has repeatedly held that this aggravating circumstance has two components. First, the State must establish that the defendant committed some "predicate crime," separate from the murder.22 Second, the State must establish that the defendant killed the victim with the motive or intent of avoiding arrest or prosecution for this separate predicate crime.23 We have recognized that the defendant's intent in this regard can be inferred from circumstantial evidence.24
¶ 8 In most cases in which the avoid arrest aggravator is found by the jury, the "predicate crime" is also charged as a separate crime and results in a separate conviction. Such cases typically involve first-degree malice murder convictions, with separate convictions for robbery,25 burglary,26 rape,27 kidnapping,28 or one or more other murders.29 This separate crime (or crimes) then also constitutes the predicate crime for the avoid arrest aggravator in the second stage of the capital trial. Similarly, in cases in which the capital defendant is charged with first-degree felony murder, the crime that serves as the underlying felony for the murder conviction can also serve as the predicate crime for the avoid arrest aggravator in the second stage.30
¶ 9 In either of these typical scenarios, a jury (or trial court) will have found the defendant guilty, beyond a reasonable doubt, of the crime alleged as the avoid-arrest "predicate crime" before the capital stage even commences. In other cases the predicate crime relied upon is not separately charged or specifically found by a jury during the first stage, but the evidence that such a separate crime occurred—and what the separate crime relied upon is—is not in doubt.31
¶ 10 The context of Mitchell's capital resentencing, however, was very different from these typical scenarios. In Mitchell's original trial, he was convicted of rape (and also sodomy), which then served as the predicate crime to support the avoid arrest aggravator in the second stage of his trial.32 Mitchell's rape and sodomy convictions have been vacated, however, and the State has chosen not to reprosecute him for these crimes—and now has abandoned the sodomy allegation entirely—proceeding instead directly to a retrial of Mitchell's capital sentencing. Although this Court has previously found that the State is not required to separately charge the crime relied upon as the avoid-arrest predicate crime,33 the history of Mitchell's case raises numerous questions about the manner in which the State was allowed to allege, argue, and prove the avoid-arrest predicate crime(s) in this case.
¶ 11 In Proposition I, Mitchell challenges the argument that the State was allowed to make in support of the avoid arrest aggravator, particularly the claim that he either "raped" Scott or committed some non-specific "sexual assault" against her. He also challenges the adequacy of the jury instructions regarding this aggravator, under the specific circumstances of his trial, and in light of the Supreme Court's decision in Ring v. Arizona34 and subsequent cases.
¶ 12 We begin by addressing Mitchell's claim that the State should not have been allowed to argue or rely upon "rape" as the predicate crime for the avoid arrest aggravator in his case. As noted, the State chose not to reprosecute Mitchell for rape or sodomy after the federal district court vacated those convictions.35 After the Tenth Circuit vacated Mitchell's death sentence, however, the State did reinitiate death penalty proceedings against him, though it initially neglected to file a new Bill of Particulars. Before the resentencing, Mitchell filed a Motion to Strike the Avoid Arrest Aggravator for "Insufficient Evidence" and a Motion in Limine "to prohibit the Prosecutor or any witnesses called by the State from mentioning, arguing, or inferring the deceased, Elaine Scott, was vaginally or anally raped or sodomized," in light of the federal court decision vacating those convictions and the State's decision not to retry those charges.36 The State filed no response...
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