Mitchell v. State

• Decision Date: 18 October 1994
• Docket Number: No. F-92-678,F-92-678
• Citation: 884 P.2d 1186,1994 OK CR 70
• 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

Page 1186

884 P.2d 1186

Alfred Brian MITCHELL, Appellant, v. STATE of Oklahoma, Appellee.

No. F-92-678.

Court of Criminal Appeals of Oklahoma.

Oct. 18, 1994.

Order Denying Rehearing and

Directing Issuance of Mandate Dec. 6, 1994.

An Appeal from the District Court of Oklahoma County, Daniel L. Owens, District Judge.

Alfred Brian Mitchell was convicted of First Degree Murder, Robbery With a Dangerous Weapon, Larceny of an Automobile, First Degree Rape, and Forcible Anal Sodomy in the District Court of Oklahoma County, Case No. CF-91-206, sentenced to death, thirty years, twenty years, one hundred years, and twenty years incarceration, respectively, and appeals. The Judgments and Sentences for First Degree Murder, Robbery With a Dangerous Weapon, Larceny of an Automobile, First Degree Rape, and Forcible Anal Sodomy are AFFIRMED.

Jim Rowan, Melody Brannon, Asst. Public Defenders, Oklahoma City, at trial and Carolyn L. Merritt, Asst. Public Defender, Oklahoma City, on appeal, for appellant.

Don Deason, Steve Deutsch, Asst. Dist. Attys., Oklahoma City, at trial, Susan Brimer Loving, Atty. Gen. of Oklahoma, and William L. Humes, Asst. Atty. Gen., Oklahoma City, on appeal, for appellee.

OPINION

CHAPEL, Judge:

Alfred Brian Mitchell was tried by jury before the Honorable Daniel L. Owens in the District Court of Oklahoma County, Case No. CF-91-206.¹ He was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, § 701.7, Robbery with a Dangerous Weapon, 21 O.S.1991, § 801, Larceny of an Automobile, 21 O.S.1991, § 1720, First Degree Rape, 21 O.S.1991, §§ 1111, 1114, and Forcible Anal Sodomy, 21 O.S.1991, § 886. The jury found 1) the murder was especially heinous, atrocious, or cruel; 2) the murder was committed for the purpose of avoiding or preventing 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. Mitchell was sentenced to death for the murder conviction, thirty years for robbery, twenty years for larceny, one hundred years for rape, and twenty years incarceration on the sodomy charge. From these convictions Mitchell has perfected his appeal, raising thirty-four propositions of error.

Mitchell was released from the Lloyd Rader Center juvenile correctional facility when he reached his 18th birthday on December 23, 1990.² He returned to his family home in Oklahoma City, near the Pilot Recreation Community Center [Center]. The Center served disadvantaged youth in the neighborhood of 1435 N.W. Second Street. Elaine Scott, a student at the University of Oklahoma, volunteered at the Pilot Center and was at work with the Center's director, Carolyn Ross, on January 7, 1991. The Center's roof was leaking badly due to earlier heavy rains and ice storms; the Center gym was closed. About 1:35 p.m., as Ross left the Center, she met Mitchell in the hallway. They had a brief discussion during which Ross explained she was leaving but that Scott could show Mitchell the Center library. Allen Biggs, an Oklahoma City [City] municipal roofing crew supervisor, arrived at the Center about 1:45 to check on the roof leaks. Mitchell met Biggs at the door and told him they were cleaning bathrooms, the Center was closed, and that a City crew had already placed trash buckets under the gym roof leaks. Biggs testified he felt Mitchell did not want him to enter the Center. Between 1:00 and 2:00 p.m., Velma Kibbey saw a black man in a red³ knit cap leave the Center in Scott's car. Jessie Richards and another City worker reached the Center about 2:20; they entered the deserted Center, went straight to the gym, and spent about half an hour mopping and setting out buckets. Ross returned about 2:50 p.m. She noticed the door was not properly fastened, called out for Scott, and, through the glass in the office door, saw Scott's nude body facedown in a pool of blood. Scott's car was abandoned several blocks away.⁴

During that day's investigation Billy Tuimalu directed police to Mitchell, saying Mitchell, wearing white tennis shoes and a red or orange cap, had been at the Center that day. Mitchell confirmed that he had been there and told police he had seen two older black men at the Center "messing with" Scott. Mitchell accompanied police to the Oklahoma City Police Department drunk tank and various homeless shelters, trying to identify the men. Mitchell denied being in the Center's office, gave the officers his white Troop tennis shoes for testing, and agreed to come with his mother to the police station the next morning to give a formal statement and further descriptions of the men. At Mitchell's request, officers transported the two to the station on January 8. While his mother waited, Mitchell waived his Miranda rights, repeated his information from the previous day, then over several hours gave several stories to the officers. These stories culminated in admissions of presence at the scene and guilt which stopped short of confessing to murder; Mitchell insisted that another man who acted with him had killed Scott and denied any sexual acts. Forensic evidence connecting Mitchell to the crime included: (1) bloody footprints matching his tennis shoes (from Scott's blood), (2) hair and fiber evidence, (3) sperm and various types of blood evidence.⁵ Mitchell's finger had a recent injury, and he admitted injuring it at the scene.

PRETRIAL ISSUES

Mitchell's first three propositions turn on his contention that he requested an attorney during questioning. Mitchell's January 8 statements began at about 11:00 a.m. and were videotaped. The first tape, which is four hours long, ends abruptly as Mitchell and Officer Maddox discuss body sample and search waivers. The second tape begins with Mitchell's final story regarding the events at the Center. Testimony at trial and in the JACKSON-DENNO⁶ hearing estimated a gap of perhaps 45 minutes between the two, during which a forensic chemist obtained body samples from and three officers had a brief conversation with Mitchell.

Although he was given, and waived, his Miranda rights at the outset, the record shows that Mitchell was not a suspect when questioning began. Over the course of the first tape his status changed as his stories kept changing and as officers became aware of forensic evidence linking Mitchell to the scene. Near the end of the first tape Maddox told Mitchell that although he was still considered a witness he was too involved to be allowed to leave and would be jailed in connection with the homicide. Maddox and Mitchell's testimony agreed that, after that tape ended, Mitchell asked, "Do I need an attorney?" or "Do you think I need an attorney?" Maddox testified he replied that the decision was Mitchell's and he could not advise him. Mitchell's Jackson-Denno testimony was that Maddox told him he did not need an attorney because they would work out a deal; at trial he testified Maddox told him he did not need an attorney because he was too deep in the crime.

In his first proposition Mitchell claims he was denied his Fifth Amendment right to counsel when police refused to honor his request for an attorney. Mitchell contends that his question, "Do I need an attorney?" was an equivocal statement invoking his Fifth Amendment right to counsel. He asserts that questioning should have ceased except for purposes of clarification and therefore his statements are inadmissible. This claim would appear to apply only to the statements given in the second tape, as the question was not asked until after the first tape ended.

Neither the United States Supreme Court nor this Court has ruled on this precise issue. In the one Oklahoma case cited by Mitchell, the defendant said he'd rather talk to an attorney than police, and this Court found that neither ambiguous nor equivocal.⁷ When considering ambiguous statements one should look at whether they precede a defendant's purported request for counsel or are part of the request itself.⁸ The Supreme Court has recently held that after a knowing and voluntary waiver of Miranda rights, law enforcement officers may continue questioning through equivocal statements until a suspect clearly requests an attorney; although the Court suggests it is good police practice to clarify any equivocal statement, this is not required.⁹ We need not reach this issue as Mitchell's statement does not rise to the level of an equivocal request for counsel.

Mitchell's question "Do I need an attorney?" is not a request for counsel. Under certain circumstances this question could amount to a request for counsel--if the defendant is young, inexperienced or unfamiliar with the criminal justice system, of low intelligence, mentally disabled or ill, or overwhelmingly upset or overwrought. None of those concerns are relevant here. Mitchell had just turned 18 but he was familiar with the criminal justice system through the juvenile courts. He was twice picked up for offenses before his arrest and adjudication on the rape charge, he had the benefit of counsel for that charge, and he had been given Miranda warnings at that time. His taped statements clearly indicate that he was in over his head during questioning. However, his statements do not support his claim that he wanted a lawyer or that he did not wish to continue talking when he made the statements on the second tape. Trial testimony showed Mitchell is of at least average intelligence, has completed his GED, and has some writing ability. There was no indication of mental problems. The circumstances here indicate that the statement was neither equivocal nor ambiguous, was certainly not an unequivocal request for counsel, and did not invoke Mitchell's right to counsel.¹⁰

In his second proposition Mitchell claims that evidence from the search waiver and body samples should have been suppressed because his consent was obtained without benefit of counsel. This proposition fails with Proposition I....