Moss v. State, F-91-347
| Decision Date | 22 December 1994 |
| Docket Number | No. F-91-347,F-91-347 |
| Parties | Lisa Rae MOSS, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Lisa Rae Moss, was tried by jury and convicted of Solicitation for First Degree Murder (Count I), Conspiracy to Commit First Degree Murder (Count III) and First Degree Murder (With Malice Aforethought) (Count IV), in Case No. CRF-90-33, in the District Court of Seminole County before the Honorable Gordon R. Melson, District Judge. The jury recommended punishment of life imprisonment (Count I), ten (10) years imprisonment and a $25,000.00 fine (Count III) and life imprisonment without parole (Count IV). The trial court sentenced accordingly. From these Judgments and Sentences, Appellant has perfected this appeal.
AFFIRMED.
William N. Peterson, Dist. Atty., Chris Ross, Asst. Dist. Atty., Wewoka, for the State, at trial.
W.B. Ward, Jr., Ada, for defendant at trial.
Garvin A. Isaacs, Wendell B. Sutton, Oklahoma City, for appellant, on appeal.
Susan Brimer Loving, Atty. Gen., Jennifer B. Miller, Asst. Atty. Gen., Oklahoma City, for appellee, on appeal.
Appellant, Lisa Rae Moss, was charged by Information in the District Court of Seminole County, Case No. CRF-90-33 with the crimes of Solicitation for First Degree Murder in violation of 21 O.S.Supp.1989, § 701.16 (Counts I and II), Conspiracy to Commit First Degree Murder in violation of 21 O.S.1981, § 421 (Count III) and First Degree Murder in violation of 21 O.S.Supp.1989, § 701.7(A) (Count IV). A jury trial was held before the Honorable Gordon R. Melson, District Judge. Count II was dismissed upon defense counsel's motion for directed verdict. The jury found Appellant guilty of the remaining three counts and set punishment at life imprisonment, ten (10) years imprisonment and a $25,000.00 fine and life imprisonment without parole, respectively. The trial judge sentenced accordingly. From this Judgement and Sentence, Appellant has perfected this appeal.
On January 17, 1990, at approximately 5:00 o'clock p.m., Chief Hunter Mixon and Officer Tommy Mackey of the City of Seminole Police Department, received a telephone call from Appellant reporting a burglary at her home. Upon arrival, Chief Mixon heard a lady scream. He found Appellant hysterical and holding the telephone. As Chief Mixon escorted Appellant out of the residence, Appellant kept repeating, "He's back there."
Meanwhile two other officers, Major Dextor Davis and Lieutenant Herdlitchka, had also responded to the call. Officer Mackey and Lt. Herdlitchka found Lanny Mike Moss' body lying in the southeast bedroom of the residence, where drawers were pulled out and papers were thrown everywhere. The other rooms of the residence were undisturbed. The paramedics arrived and pronounced Mr. Moss dead. This was confirmed by Dr. George Davis, who arrived shortly thereafter. Subsequently, the body was sent to the Office of the Chief Medical Examiner where it was determined by Dr. Larry Balding that the deceased had two gunshot wounds to the head. The wound inflicted at long range to the left back of the head was inflicted first. The other wound was inflicted at short range just below the left ear.
Later that week, Agent K.P. Larsh received an anonymous phone call that a Chauncey Cravens might have some information regarding the deceased's death. Agent Larsh interviewed Mr. Cravens. After the interview, Agent Larsh had Mr. Cravens to tape record his conversations with Appellant. Chauncey Cravens' testimony at trial was essentially what he conveyed to Agent Larsh. He testified that Appellant solicited him regarding "getting rid of" the deceased and that Appellant paid him $500.00 as an initial payment, telling him that she was willing to pay between $15,000 and $20,000 dollars from a life insurance policy for someone to "get rid of" the deceased.
Subsequently, Agent Larsh interviewed Appellant. At trial, he testified that Appellant related that the deceased had been physically abusive on some occasions. She denied having anything to do with the deceased's death. Later in the interview, after Appellant learned of the taped recorded conversations between herself and Mr. Cravens, Appellant admitted that she had asked Mr. Craven's to help her "get rid of" the deceased. She also admitted that she had asked a Mr. Marquis if he knew anyone who would "get rid of" the deceased. Appellant related that four or five days prior to the deceased's murder, she had spoken with her brother, Richard Wright, about "getting rid of" the deceased. At that time, she told Mr. Wright about the deceased's gun and his daily routine. The day after the murder, Mr. Wright told her that he had taken care of it.
Agent Larsh asked Appellant to wear a tape and speak with Mr. Wright. Appellant was informed by Agent Larsh that any information obtained might further incriminate her. Appellant agreed to wear the tape. Later, Richard Wright pled guilty to First Degree Murder and Conspiracy to Commit First Degree Murder.1 Appellant was charged as a co-conspirator with Mr. Wright.
At trial, Richard Wright's common law wife, Patty Loftis-Wright, testified that on the day of the murder at approximately 12:30 p.m., Appellant came to her and Mr. Wright's home. Appellant and Mr. Wright went to another room and talked for about 30-45 minutes. After Appellant left, Mr. Wright became nervous and upset. When Mrs. Wright inquired as to what was wrong, Mr. Wright related that Appellant wanted him to get rid of Mr. Moss that day. Later that day, Mr. Wright put on his gloves and cap and asked her to drop him off close to the vicinity of the deceased's home. She did and left. Later, Mr. Wright called her and asked her to pick him up at Doyle's Quick Stop. Shortly after Mr. Wright got into her car, Appellant drove up. Mr. Wright got out of Mrs. Wright's car and into Appellant's car. Both cars arrived at the Wright's residence approximately five minutes later. When Mrs. Wright asked Mr. Wright if he had done it, he handed her the gun, which she hid under the water bed.2
In her first proposition of error, Appellant asserts that Count I of the Information charging Solicitation for Murder in the First Degree was fatally defective for omitting the essential element of "intent that the murder be committed."3 Appellant relies on OUJI-CR 447 (1981), which instructs that the elements of Solicitation to Commit First Degree Murder are (1) soliciting; (2) another; (3) to kill a human by an act of murder in the first degree; (4) with the intent that the murder be committed; and (5) the elements of first degree murder.
The crime of Solicitation for Murder in the First Degree is set forth, in part, in Title 21 O.S.1981, § 701.16, as follows:
It shall be unlawful for any person or agent of that person to solicit another person or persons to cause the death of a human being by the act of murder in the first degree as is defined by Title 21 O.S., Section 701.7.
The test for sufficiency of an Information was stated by this Court in Davis v. State, 792 P.2d 76 (Okl.Cr.1990). Under the Davis analysis, the Information must contain the elements of the offense charged and correctly apprise the defendant of what he must be prepared to meet at trial. Additionally, the trial court must further determine whether a conviction under the Information would expose the defendant to the possibility of subsequently being put in jeopardy the second time for the same offense. See Davis at pages 80-81, where we stated that this must be determined on the basis of practical rather than technical considerations and that hair splitting is to be avoided.
In the case sub judice, the Information did apprise Appellant of what she had to be prepared to meet. Further, a conviction under the Information would not later subject the Appellant to further litigation under the same offense. Thus, the Information presented was sufficient under the Davis guidelines. This proposition is without merit.
Next, Appellant asserts that the trial court abused its discretion in denying her motion for a continuance, which was filed on September 7, 1990, three days prior to trial. The basis for said motion was that her trial attorney, a solo practitioner, having received the transcript of the Preliminary Hearing on August 8, 1990, (thirty-three days prior to the trial set for September 10, 1990)4, did not have sufficient time to prepare her defense.
According to the trial court minutes, a hearing was had on the motion on the same date. Both sides waived the recording of the hearing. According to the minutes, the motion was denied. However, the trial court ordered the State to disclose any information, including the address it had on witness Chauncey Cravens. Additionally, the trial court ordered the State to provide defense counsel a "copy of any notes Agent Rogers has on interview with Dr. Jeske."
On appeal, Appellant argues (1) her trial counsel did not have sufficient time to complete his investigation for trial; (2) unfair surprise by the State calling Patty Loftis-Wright as an additional witness; and (3) Appellant was prejudiced by the State's failure to produce exculpatory evidence prior to trial.
This Court has held that a motion for continuance is addressed to the sound discretion of the trial judge, and will not be disturbed unless an abuse of discretion is apparent. McFarland v. State, 648 P.2d 1248, 1249-50 (Okl.Cr.1982).
In her first sub-proposition, Appellant asserts that because her trial attorney was not given a copy of the preliminary hearing transcript until August 8, 1990, her attorney was unable to adequately prepare for trial. The record reveals that counsel was appointed for Appellant at the preliminary hearing. On July 12, 1990, Appellant retained private counsel. On August 8, 1990, Appellant's counse...
To continue reading
Request your trial
-
Welch v. Sirmons
...that after his initial service call he and Cooper started a consensual extramarital affair and that her death was an accident. See Moss v. State, 1994 OK CR 80, ¶ 40, 888 P.2d 509, 519; Hooker v. State, 1994 OK CR 75, ¶ 27, 887 P.2d 1351, 1360, cert. denied, 516 U.S. 858, 116 S.Ct. 164, 133......
-
Abshier v. State
...because no specific contemporaneous objection was made at the time of the alleged error as required by 12 O.S.1981, § 2104(A)(1). Moss v. State, 1994 OK CR 80, ¶ 42, 888 P.2d 509, 519. Since there were no contemporaneous objections on the grounds now asserted, we examine for plain error ¶ 1......
-
Hooks v. State, D-98-1231.
...S.Ct. 529, 145 L.Ed.2d 410 (1999); Morgan v. District Court of Woodward County, 1992 OK CR 29, 831 P.2d 1001, 1005. 12. Moss v. State, 1994 OK CR 80, 888 P.2d 509, 515; Thomas v. State, 1991 OK CR 58, 811 P.2d 1337, 1342, cert. denied, 502 U.S. 1041, 112 S.Ct. 895, 116 L.Ed.2d 798 13. Fitzg......
-
Hooper v. State
...did not present the victim's past or present thoughts or feelings but simply accused the defendant of murder).23 Moss v. State, 888 P.2d 509, 518 (Okl.Cr.1994); Moore, 761 P.2d at 870.24 Lamb, 767 P.2d at 890.25 Moore, 761 P.2d at 870.26 12 O.S.1991, § 2801(4)(B)(1).27 12 O.S.1991, § 2901(A......