Murphy v. State

• Decision Date: 22 May 2002
• Docket Number: No. D-2000-705.,D-2000-705.
• Citation: 47 P.3d 876,2002 OK CR 24
• Parties: Patrick Dwayne MURPHY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

47 P.3d 876

2002 OK CR 24

Patrick Dwayne MURPHY, Appellant, v. The STATE of Oklahoma, Appellee.

No. D-2000-705.

Court of Criminal Appeals of Oklahoma.

May 22, 2002.

James C. Bowen, Tulsa, OK, Richard Lerblance, Hartshorne, OK, Counsel for Appellant at trial.

Rob Barris, Assistant District Attorney, Okmulgee, OK, Philip Cozzoni, Assistant District Attorney, Eufaula, OK, Counsel for the State at trial.

Steven M. Presson, Robert Wade Jackson, Norman, OK, Counsel for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Timothy J. Gifford, Assistant Attorney General, Oklahoma City, OK, Counsel for the State on appeal.

OPINION

LUMPKIN, Presiding Judge:

¶ 1 Appellant, Patrick Dwayne Murphy, was tried by jury in the District Court of McIntosh County, Case Number CF-1999-164A, and convicted of First Degree Murder, in violation of 21 O.S.Supp.1996, § 701.7(A). The jury found the existence of two aggravating circumstances: that the murder was especially heinous, atrocious, or cruel; and that there is a probability Appellant will commit criminal acts of violence that would constitute a continuing threat to society. The jury set punishment at death, and the trial judge sentenced Appellant in accordance with this verdict. Appellant now appeals.¹

¶ 2 In August of 1999, Appellant was living with Patsy Jacobs, his alleged "common-law" wife. Ms. Jacobs had previously lived for three years with George Jacobs, the victim in this case, and had a child by him. Appellant and Patsy had an argument about Jacobs a couple of days before Jacobs was murdered. Appellant told Patsy that he was going to get Jacobs and his family one by one.

¶ 3 On August 28, 1999, George Jacobs and his cousin Mark Sumka spent most of the day drinking and driving around Okmulgee, Okfuskee, and McIntosh counties. They reportedly drank two bottles of whiskey and numerous beers that day. At 9:30 p.m., they were headed to a Henryetta bar in Jacobs's Dodge Sedan. Jacobs was passed out in the back seat, and Sumka was driving. (Jacobs's post mortem blood alcohol level would later be determined to be .23)

¶ 4 Sumka and Jacobs passed Appellant as he was driving in the opposite direction. Both cars stopped, and Appellant backed up. Appellant told Sumka to kill the car and get out. Meanwhile, two occupants of Appellant's car, Billy Long and Kevin King, exited the car. Alarmed, Sumka drove away.

¶ 5 Appellant and his companions pursued Sumka in Appellant's car. Appellant was eventually able to force Sumka to stop. At that point, someone from Appellant's car arrived at Sumka's car and began hitting Jacobs.

¶ 6 Sumka got out of his car, but was stopped by Appellant, who said he was going to do to Jacobs what they had done to him. Sumka could hear the other two men hitting Jacobs. Sumka told Appellant "that was enough, you know, he's passed out." Appellant went over to Jacobs, while Long came over and hit Sumka in the nose. Sumka then saw King drag Jacobs out of a ditch.

¶ 7 Sumka fled momentarily, about one hundred yards from the assault. After five minutes, he decided to return. Upon his arrival, Appellant and his two cohorts told Sumka if he said anything they would kill him and his family. King then smacked Sumka in the jaw. Appellant reportedly instructed King and Long not to hit Sumka again.

¶ 8 Sumka testified that Appellant then took a folding knife he was holding and tossed it into the woods. (The police later recovered this knife.)

¶ 9 Sumka ran over to where Jacobs was laying in a ditch. Jacobs was "barely breathing." Anderson Fields then drove up in another car and asked what was wrong with the guy in the ditch. (He also noticed a fleshy object and blood in the road.) The men told him Jacobs was drunk. They began approaching Fields's car, but he drove away. Fields then phoned the police and drove back to the scene. Everyone was gone. Jacobs lay in the ditch and was barely breathing. Fields found a slash across Jacobs's stomach and chest. His throat had been cut, his face was bloody, and his genitals had been cut off.

¶ 10 Upon Appellant's instructions, Sumka had left the scene with Appellant, Long, and King. During the car ride, Appellant told Sumka they had cut Jacobs's throat and chest and had cut off his privates. King told Sumka they had stuffed Jacobs's genitals into Jacobs's mouth. Appellant then told everyone to take off their clothes because he was going to burn them.

¶ 11 The group later went to the home of Mark Taylor, Appellant's cousin. Appellant told Taylor he had killed Jacobs. Appellant said he had cut Jacobs's stomach and throat, had "cut his dick and his nuts off," had shoved his genitalia into his mouth, and had tried to stomp on the victim's head like a pancake.

¶ 12 The group then traveled to King's house, where Jacobs's son George, Jr. was staying. Appellant said he was going to do the same thing to Jacobs's son. But King's mother came out of the house and thwarted this plan. King went inside, and the rest of the group left. Appellant then burned the bag of incriminating clothes.

¶ 13 When Appellant arrived home that night, he told Patsy Jacobs that George Jacobs had been killed and that he had sliced his throat and stomach. Patsy testified Appellant also said he had cut off Jacobs's genitals so "he won't fuck anyone anymore," including her.

¶ 14 When Appellant was arrested, he admitted kicking Jacobs in the ribs and testicles and cutting his penis. He also admitted hearing Jacobs groan during the attack. He said Jacobs was left alive in a ditch; He was breathing and saying, "Oh."

¶ 15 A state criminalist testified that, after the victim's penis was severed, he was dragged to the side of the road, where his neck and chest were cut. Bloodstains on Jacobs's shoes indicate he had been in an upright position for part of the attack. The medical examiner described the cause of death as blood loss from the various cutting wounds, primarily the genital and neck wounds. Death was not immediate. Jacobs bled to death in somewhere between four to twelve minutes, perhaps even longer. He described the multiple lacerations and fractures the victim suffered to his face, neck, chest, and abdomen.

ISSUES RELATING TO VOIR DIRE

¶ 16 In proposition eight, Appellant claims the trial court's failure to ensure a complete and adequate record for appellate review violates his "constitutional rights," presumably to due process and/or a fair trial. He claims the court reporter's voir dire transcription was inadequate because jurors' names were not identified at times. He claims this is a recurring problem in this county.

¶ 17 Whether or not there is a recurring problem in McIntosh County with regard to the practices of its court reporters, we cannot say. We can, however, address whether or not there was a constitutionally significant problem concerning the record in Appellant's trial.

¶ 18 Appellant points to "two significant questions" that arose at trial as a result. First, he claims it is impossible to discern from the record whether the juror who "knows that persons of Indian bloodline react differently to alcohol" remained on the jury. Second, it was impossible to discern whether the juror who has a medical background remained on the jury.

¶ 19 However, we find these claims are without merit. While we agree the transcript could certainly have been a lot more detailed and clear than it is — and the lack of specificity could create the possibility of a constitutional violation in some future case — here, we have no such concerns. The record shows that the juror who had concerns about Indian bloodlines was a "Ms. Davis." While there were two Ms. Davis's in the pool of prospective jurors, i.e. Kymberly Davis and Teresa Davis, both were removed from the jury by the State through peremptory challenges, the State's first and fifth peremptory challenges. Therefore, Appellant's concern that the juror was removed by the defense, thereby "arguably" creating an ineffective assistance claim is without merit.

¶ 20 Furthermore, with respect to the juror who had a medical background, Appellant's bare claim that this unidentified juror "might pose a problem or benefit to the parties" is not specific enough to survive judicial review. Even assuming, arguendo, that defense counsel, armed with the knowledge that this potential juror had a bachelor's degree in laboratory technology and prior experience with a medical diagnostic company, made the decision to challenge or not challenge that juror from serving on the jury pool, we find such decision would not have amounted to ineffective assistance. Such a hypothetical error, which has no bearing on the outcome of the trial, will not mandate reversal here. Simpson v. State, 1994 OK CR 40, ¶ 13, 876 P.2d 690, 695.

FIRST STAGE TRIAL ISSUES

¶ 21 In proposition five, Appellant claims a custodial statement he gave after his arrest violated his right to counsel. He claims the statement should have been suppressed, and the trial court erred by admitting it at trial, following the Jackson v. Denno² hearing held on its admissibility. In that hearing, the trial judge found Appellant voluntarily and knowingly waived his right to counsel.

¶ 22 Appellant specifically points to transcript excerpts of his interrogation in which he seemed to have been confused about whether or not he was entitled to an attorney, whether or not he was going to ask for an attorney, and whether or not he could speak to the officers with an attorney present.

¶ 23 For example, after receiving the Miranda warning and being asked if he desired to speak to police officers, Appellant stated, "Well, I can't answer that right now. I don't know this, this I'm not for sure if I'm gonna have an attorney." The police then told Appellant, "It is your right to have an attorney. Do you want one or do you want to talk to us? It's your choice. Do you want an attorney yes or no?" Appellant asked, "Well, can I still talk to ya'll and...