Mooney v. State

• Citation: 1999 OK CR 34,990 P.2d 875
• Decision Date: 31 August 1999
• Docket Number: No. F-95-1140.,F-95-1140.
• Parties: Jerry Duwane MOONEY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

990 P.2d 875

1999 OK CR 34

Jerry Duwane MOONEY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-95-1140.

Court of Criminal Appeals of Oklahoma.

August 31, 1999.

Sherry Wallace, Oklahoma City, for Defendant at trial.

Luther Cowan, Assistant District Attorney, Cordell, for the State at trial.

Lee Ann Jones Peters, Appellate Indigent Defense, Norman, for Appellant on appeal.

W. A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

OPINION

JOHNSON, Judge:

¶ 1 Jerry Mooney was tried by a jury in the District Court of Washita County, Case No. CF-94-5, before the Honorable Richard Darby. Mooney was convicted of First Degree Malice Aforethought Murder. After finding the existence of three aggravating circumstances — the murder was especially heinous, atrocious, or cruel; the murder was committed to avoid lawful arrest or prosecution; and Mooney posed a continuing threat to society — the jury assessed punishment at death. The trial court sentenced Mooney accordingly. Mooney appeals. After thorough consideration of the record before us, we find the combination of two serious errors affecting the second stage of trial rendered the death sentence in this case unreliable. Therefore, we affirm Appellant's conviction and hereby modify his sentence to life without parole.

FACTS

¶ 2 On May 11, 1993, sixteen-year-old Jerry Mooney, his fourteen-year-old sister Aimee Mooney and their friend Ricky Fletcher went on a crime spree. At approximately 4:00 a.m., the trio drove to a Love's Truck Stop located on the outskirts of Elk City. Mooney entered the Love's store and got beer and candy bars while Fletcher pumped $18.00 worth of gas into their car. When the clerk turned to turn off the gas pump, Mooney grabbed the merchandise and ran out without paying for the gas or the beer.

¶ 3 Fletcher was driving the car, and the trio fled the area at a high rate of speed. Approximately two to three miles east of the Love's store, they ran the car into a ditch. The three then walked to the nearby home of Richard Turley, a ninety-three-year-old man. Mr. Turley lived at the house by himself.

¶ 4 The three entered the home by kicking in the back door. Mr. Turley, carrying a flashlight, confronted them and asked what they wanted. Mooney told Mr. Turley their car had broken down and asked if they could use Mr. Turley's telephone. Mr. Turley agreed. However, when Mr. Turley checked the damaged door, Mooney took Mr. Turley's flashlight and hit him over the head with it several times. Then, Mooney, Aimee Mooney and Ricky Fletcher repeatedly kicked Mr. Turley "until blood was coming out of his nose and mouth and white stuff was coming out of his nose and mouth and his ears." One of the individuals later hit Mr. Turley once over the head with a cast iron pan.¹

¶ 5 Before leaving Mr. Turley's home, Mooney took the victim's car keys and his watch. The trio drove the victim's car through the garage door when they were unable to open the garage door.² Mr. Turley was found the next morning in a comatose state. He remained in a coma for approximately six months before complications from his injuries caused his death on November 19, 1993.

¶ 6 On May 12, 1993, Mooney and Ricky Fletcher were charged jointly with Robbery with a Dangerous Weapon in Washita County District Court, Case No. CF-93-28. Mooney entered a blind plea of guilty to the robbery charge on November 12, 1993, one week before Mr. Turley died. Mooney was sentenced to life imprisonment for the robbery. On February 3, 1994, the State charged Mooney with First Degree Malice Aforethought Murder. This Court affirmed the robbery conviction in an unpublished opinion on December 6, 1994. Mooney v. State, No. C-94-452.³

Issues Relating to Competency

¶ 7 Mooney contends in his fourth assignment of error that the trial court employed an unconstitutional burden of proof when it determined Mooney's competency to stand trial. Prior to any remands, the circumstances surrounding this issue were very sketchy. On March 4, 1994, defense counsel filed an Application for Determination of Competency, setting forth the following facts in support of the application:

A) Defendant suffers from hallucinations and delusions, and his competency has been a continuing source of concern to counsel;

B) Defendant has previously been found to be incompetent to assist his attorney by psychologists at New Horizons Mental Health Services;

C) Further, Defendant's competency has been questioned by the District Court of Washita County, Oklahoma, in CRF-93-28.

¶ 8 On March 29, 1994, this matter came on for hearing, but a formal record of the hearing was not made. According to a court minute, Mooney appeared at this hearing with counsel, and Mooney's mother was also present. The court minute also states that Mooney waived his right to a jury trial on the question of competency and the State presented sworn testimony from one witness. At the conclusion of the hearing, Mooney's competency application was denied.

¶ 9 Based upon this record, Mooney contends the March 29th hearing was a post-examination competency trial. The right to a jury trial on the issue of competency only attaches after the initial application for determination of competency has been granted and a competency examination has been conducted. Compare 22 O.S.Supp.1993, § 1175.3 (hearing on application to determine competency) with 22 O.S.1991, § 1175.4 (post-examination competency trial). Mooney had previously been examined by psychologists during the course of the companion robbery case.⁴ Thus, Mooney contends we can presume this hearing was a post-examination competency trial and that the unconstitutional "clear and convincing" burden of proof was employed by the trial court in violation of Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996).⁵

¶ 10 The State conceded error in its brief and requested the matter be remanded to the district court for retrospective competency proceedings. Upon initial review of the limited record available on this issue, this Court also found merit with Mooney's claim. However, it subsequently became apparent that the record was misleading. Consequently, on March 5, 1998, this matter was remanded to the district court for an evidentiary hearing to determine whether the March 29th hearing was simply a hearing on Appellant's Application to Determine Competency⁶ or whether it was actually a post-examination competency trial.⁷

¶ 11 On March 20, 1998, the Honorable Richard B. Darby, District Judge, found that the March 29, 1994 hearing conducted by Judge Ralph Emerson was simply a hearing on Mooney's Application to Determine Competency and not a post-examination competency trial. At the evidentiary hearing, Judge Emerson testified the March 29th hearing was a hearing on Mooney's Application. He recalled that "not a scintilla of evidence" was presented during the hearing to call into question Mooney's competency. He further testified that Mooney always appeared competent, was "very lucid" and "very alert." Assistant District Attorney Luther Cowan similarly testified that there was no evidence presented that Mooney was incompetent. Mr. Cowan recalled that John Rizzi, a jailer, testified at the hearing that he had no problems communicating with or understanding Mooney.

¶ 12 The March 29th hearing was clearly a hearing on Mooney's Application for Determination of Competency. This Application was denied; and consequently, Mooney was not entitled to a post-examination competency trial. Mooney's fourth assignment of error fails.

Pretrial Issues

¶ 13 In his first assignment of error, Mooney contends he had already been punished for the acts resulting in Mr. Turley's death through his robbery conviction. Thus, Mooney maintains his subsequent prosecution for the same course of conduct violates (1) Title 21, Section 11 of the Oklahoma statutes and (2) the prohibition against double jeopardy found in the federal and state constitutions.

¶ 14 Analysis of this issue begins with a review of 21 O.S.1991, § 11. Hale v. State, 1995 OK CR 7, ¶¶ 3-5, 888 P.2d 1027, 1029. "If a single criminal act gives rise to offenses which are not separate and distinct, are a means to another ultimate objective, are lesser included offenses, or are incidents or facets of some other offense, that conduct may not be punished under more than one statute." Hale, 1995 OK CR 7, ¶ 4,888 P.2d at 1029; 21 O.S.1991, § 11. The pivotal issue is whether "a defendant has been punished twice for one criminal course of conduct where his offenses were incident to one objective." Id. A traditional double jeopardy analysis is only conducted if section 11 does not apply. Id.,1995 OK CR 7, ¶ 5,888 P.2d at 1029.

¶ 15 When applying section 11, the pivotal question is what Mooney's objective was — robbery and/or murder. Mooney submits he has been punished twice for one criminal course of conduct that involved the single objective of robbery. The facts proving each offense are clearly intertwined. To prove the offense of robbery with a dangerous weapon, the State had to prove the flashlight was a dangerous weapon.⁸ This was demonstrated by showing how Mooney used the flashlight to beat Mr. Turley. This same beating ultimately resulted in Mr. Turley's death. Moreover, evidence of the beating was necessary to prove both the robbery with a dangerous weapon and the murder.

¶ 16 However, it is clear from Mooney's statements to Rene Brasuell that Mooney had two criminal objectives. Mooney told Brasuell the trio killed Mr. Turley to avoid witnesses. Therefore, by Mooney's own admission, he had two separate objectives — robbery and malice murder to avoid prosecution. The chain of events relayed to Brasuell was as follows: After entering Turley's home, Mr. Turley came out and asked what they were doing. The trio told him their car had broken down and asked to use the phone. Fletcher went...