Mitchell v. State Of Okla.

• Decision Date: 01 July 2010
• Docket Number: No. D-2008-57.,D-2008-57.
• Citation: 2010 OK CR 14,235 P.3d 640
• Parties: Alfred Brian MITCHELL, Appellantv.STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

235 P.3d 640

2010 OK CR 14

Alfred Brian MITCHELL, Appellantv.STATE of Oklahoma, Appellee.

No. D-2008-57.

Court of Criminal Appeals of Oklahoma.

July 1, 2010.

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An Appeal from the District Court of Oklahoma County; the Honorable Virgil C. Black, District Judge.

Mitch Solomon, Gina Walker, Assistant Public Defenders, Oklahoma City, OK, counsel for appellant at trial.

David Prater, District Attorney, Sandra Elliott, Suzanne Lister, Assistant District Attorneys, Oklahoma City, OK, counsel for the state at trial.

Andrea Digilio Miller, Assistant Public Defender, Oklahoma City, OK, counsel for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.

OPINION

LUMPKIN, Judge.

¶ 1 Alfred Brian Mitchell, Appellant, was tried by a jury in June 1992 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 [Appellant] would commit criminal acts of violence that would constitute a continuing threat to society.” See 21 O.S.1991, § 701.12(4), (5) and (7), respectively. In accordance with the recommendations of the jury, the trial court sentenced Appellant to death for the murder and to imprisonment for a total of 170 years for the other felonies.

¶ 2 Appellant appealed to this Court, and we affirmed his convictions and his sentences. Mitchell v. State, 1994 OK CR 70, 884 P.2d 1186 (hereinafter referred to as Mitchell I ). This Court denied Appellant's petition for rehearing, and the United States Supreme Court denied his petition for certiorari. Mitchell v. Oklahoma, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995). Appellant then sought post-conviction relief in this Court, which was denied. Mitchell v. State, 1997 OK CR 9, 934 P.2d 346 (hereinafter referred to as Mitchell II ). The Supreme Court again denied Appellant's petition for certiorari. Mitchell v. Oklahoma, 521 U.S. 1108, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997).

¶ 3 Appellant then pursued federal habeas corpus relief in the United States District Court for the Western District of Oklahoma. Mitchell v. Ward, 150 F.Supp.2d 1194 (W.D.Okla.1999). The federal district court granted habeas relief on Appellant's convictions for rape and sodomy, vacating those convictions but leaving his other convictions and sentences intact.

¶ 4 Appellant appealed to the United States Court of Appeals for the Tenth Circuit. In Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.2001),¹ the Tenth Circuit upheld Appellant's first-degree murder conviction, but vacated his death sentence and ordered a new capital sentencing proceeding. Pursuant to 21 O.S.2001, § 701.10a, a new jury was impaneled for the resentencing trial, which was held 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.” See 21 O.S.1991, § 701.12(4) and (5), respectively. The jury again recommended the death penalty, and the trial court so ordered. Appellant appealed to this Court. Mitchell v. State, 2006 OK CR 20, 136 P.3d 671 (hereinafter referred to as Mitchell III ). This Court reversed Appellant's death sentence and remanded the case to the District Court for resentencing.

¶ 5 A second re-sentencing trial was held on November 26-December 6, 2007. The jury found the existence of the aggravating circumstance “especially heinous, atrocious, or cruel” and recommended the sentence of death. See 21 O.S.1991, § 701.12(4). On January 16, 2008, the trial court sentenced Appellant in accordance with the jury's verdict.

From this judgment and sentence, Appellant appeals.²

¶ 6 The facts of this case were summarized in this Court's opinion on direct appeal, which is incorporated herein by reference. See Mitchell I, 1994 OK CR 70, ¶¶ 2-3, 884 P.2d at 1191-92. The evidence presented at the second re-sentencing trial was sufficiently the same as that presented at the first re-sentencing so that we may rely on the brief summary of facts set forth in our earlier opinion:

Briefly stated, on January 7, 1991, Alfred Brian Mitchell found Elaine Scott alone at the Pilot Recreation Center in Oklahoma City. 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. 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.

2006 OK CR 20, ¶ 6, 136 P.3d at 676-677.

¶ 7 Appellant raises eighteen (18) propositions of error in this appeal. These propositions will be addressed in the order in which they arose at trial.

JURY SELECTION

¶ 8 Appellant asserts in his fourth proposition of error that the trial court abused its discretion in denying the use of juror questionnaires and individual sequestered voir dire. Appellant argues that as he was denied the benefit of individual questioning, either through individual in person questioning or questionnaires, the jury selection process did not comport with due process and undermines the reliability of the capital sentence imposed.

¶ 9 In support of his claim, Appellant directs us to responses by three potential jurors during the court's initial questioning. Prospective Jurors R.M. and A.K. stated they remembered reading about Appellant's case in the newspapers. Prospective Juror R.L. stated his wife had been murdered, her murderer was on death row, and the process had been unpleasant for him. Appellant argues that if questionnaires or individual voir dire had been allowed the jury pool would not have been exposed to the highly inflammatory responses of the three potential jurors.

¶ 10 The manner and extent of voir dire is within the discretion of the trial court whose rulings will not be disturbed on appeal absent a clear abuse of discretion. Eizember v. State, 2007 OK CR 29, ¶ 67, 164 P.3d 208, 228. No abuse of discretion will be found so long as the voir dire is conducted in a manner which affords the defendant a jury free of outside influence, bias or personal interest. Id.

¶ 11 The purpose of voir dire examination is to ascertain whether there are grounds to challenge prospective jurors for either actual or implied bias and to facilitate the intelligent exercise of peremptory challenges. Warner v. State, 2006 OK CR 40, ¶ 15, 144 P.3d 838, 858. To that end, this Court has recently encouraged, but not mandated, the use of juror questionnaires. See Eizember, 2007 OK CR 29, ¶ 40, 164 P.3d at 221, n. 6.; Jones v. State, 2006 OK CR 17, ¶ 16, 134 P.3d 150, 156. Whether to conduct individual voir dire is within the trial court's discretion. Eizember, 2007 OK CR 29, ¶ 69, 164 P.3d at 228. Although a defendant may request individual voir dire, he has no automatic right to such a request. Stouffer v. State, 2006 OK CR 46, ¶ 12, 147 P.3d 245, 257. “Individual voir dire is appropriate where the record shows jurors were not candid in their responses about the death penalty, or that responses were tailored to avoid jury service.” Id. quoting Hanson v. State, 2003 OK CR 12, ¶ 5, 72 P.3d 40, 46.

¶ 12 Prospective Jurors R.M. and A.K. stated they remembered reading about Appellant's case in the newspapers approximately 16 or 17 years earlier. No details of what they remembered reading were given. Both stated they could set aside what they remembered reading and decide the case on the evidence presented at trial.

¶ 13 Because of the obvious difficulty in reviewing juror candidness, we must rely and place great weight upon the trial court's opinion of the jurors. See Eizember, 2007 OK CR 29, ¶ 41, 164 P.3d at 221 (“[d]eference must be paid to the trial judge who sees and hears the jurors” quoting Wainwright v. Witt, 469 U.S. 412, 425, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985)). Here, the trial court, who saw the prospective jurors and heard their responses firsthand, found no need to conduct individual voir dire. We find the record supports that conclusion as there is nothing in their responses that indicate the prospective jurors were anything less than candid.

¶ 14 Prospective Juror R.L., after giving the previously cited testimony regarding the murder of his wife, and at the request of defense counsel, was sequestered from the remainder of the jury pool and individual voir dire was conducted. At the end of which, he was excused for cause. Appellant has failed to show how this prospective juror's statements about his...