Myers v. State

• Decision Date: 08 December 2000
• Docket Number: No. D 1998-646.,D 1998-646.
• Citation: 2000 OK CR 25,17 P.3d 1021
• Parties: Karl Lee MYERS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

17 P.3d 1021

2000 OK CR 25

Karl Lee MYERS, Appellant, v. STATE of Oklahoma, Appellee.

No. D 1998-646.

Court of Criminal Appeals of Oklahoma.

December 8, 2000.

Rehearing Denied January 29, 2001.

Joe P. Robertson, William R. Higgins, Capital Trial Division, Indigent Defense System, Tulsa, OK, Attorneys for Defendant.

Perry W. Hudson, Janet Chesley, Capital Direct Appeals Division, Indigent Defense System, Norman, OK, Attorneys for Appellant.

Gene Haynes, District Attorney, Raymond L. Hasselman, Assistant District Attorney, Claremore, OK, Attorneys for the State. W.A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee.

OPINION

LILE, Judge:

¶ 1 Karl Lee Myers was convicted, by jury, of Murder in the First Degree (21 O.S.1991, § 701.7) in the District Court of Rogers County, Case No. CF-96-233, before the Honorable Dynda Post, District Judge. After the sentencing stage, the jury found the existence of four aggravating circumstances: the murder was especially heinous, atrocious, or cruel; the Defendant was previously convicted of a felony involving the use or threat of violence; the existence of a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society; and the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and set punishment at death. 21 O.S.1991, § 701.12(1), (4), (5) & (7). The trial court entered Judgment and Sentence in accordance with the jury's verdict. From this Judgment and Sentence, Myers has perfected his appeal.

FACTS

¶ 2 The victim, Cindy Marzano, and Appellant were acquaintances. She left home for work on March 14, 1996, bearing no bruises or wounds on her face or head. She drove her 1984 silver Chevrolet Impala to work for her 1:00 p.m. to 9:00 p.m. shift. While at work she spoke to Appellant twice between 7:00 p.m. and 8:00 p.m. and was overheard agreeing to meet Appellant after work. She checked out at 9:09 p.m. and was seen thereafter at Denny's restaurant where she and a man remained about thirty (30) minutes.

¶ 3 At 11:51 p.m., Appellant was at a convenience store, where he had been a regular customer, and remained two to two and one-half hours. He washed his truck while there and told the clerk he had been at a relative's house. At 12:30 a.m., Cindy Marzano was found floating face down in the water at the Highway 33 Landing on the navigation channel near the Port of Catoosa. Her blouse and bra were pulled up and she had bruises on her forehead, upper left arm and neck. She had cuts on her face and an abrasion between her shoulder blades. She had bruises on her right thigh and left leg. These injuries were suffered prior to death. Asphyxiation was determined to be the cause of death. DNA testing established that spermatozoa found in her vagina matched Appellant's DNA.

¶ 4 Appellant first denied that he had seen the victim that night. He finally admitted talking to the victim that night at her work. He said they agreed to meet at Denny's for coffee, and he was home by 11:45 p.m. He denied any physical contact with the victim. He later admitted to having consensual sex with the victim that night.

¶ 5 Inmate Sidney Byrd testified that Appellant admitted killing two women, and further admitted that (concerning Cindy Marzano) "he was fucking her from behind when he strangled her and she died."

JURY SELECTION ISSUES

¶ 6 In Proposition I, Appellant complains that the trial court improperly refused to excuse prospective juror, Janice Irene Riggs, on the grounds that she was unable to consider all three punishment options: life, life without parole, and death. We said in Humphreys v. State, 1997 OK CR 59, ¶ 3, 947 P.2d 565, 570-71:

"The decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion whose decision will not be disturbed unless an abuse of discretion is shown. Spears v. State, 900 P.2d 431, 437 (Okl.Cr.),cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995); Allen v. State, 862 P.2d 487, 491 (Okl.Cr.1993),cert. denied, 511 U.S. 1075, 114 S.Ct. 1657, 128 L.Ed.2d 375 (1994). To determine if the trial court properly excused a prospective juror for cause, this Court will review the entirety of the juror's voir dire examination. Carter v. State, 879 P.2d 1234, 1244 (Okl.Cr.1994),cert. denied, 513 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995). To withstand a challenge for cause concerning punishment issues, a venireperson must be willing to consider all the penalties provided by law and not be irrevocably committed to any one punishment option before the trial has begun. Carter, 879 P.2d at 1244."

¶ 7 The Court first inquired of prospective Juror Riggs whether she could consider all three of the legal punishments to which the prospective Juror replied, "Yes, ma'am." When examined by Appellant's trial counsel the prospective Juror stated that the death sentence "was not always appropriate" in circumstances of first degree murder although she opined it was "more of the time" as opposed to less of the time. Although at one time the prospective Juror stated that if somebody is charged with killing somebody and guilt is proved that he should be put to death, she later explained: "I will say it again, in most instances, yes." Under further examination by Appellant's trial counsel, the prospective Juror stated that she would "more than likely" vote for the death sentence, but that she would consider life or life without parole. At this point, Appellant's trial counsel moved to excuse the juror for cause. The court further examined the juror at which time the juror responded that "I could certainly weigh all three" and that by weigh she meant consider. Appellant's trial counsel asked numerous further questions on different issues and ultimately passed prospective Juror Riggs for cause.

¶ 8 It is clear that this prospective juror was willing to consider all three possible punishments for First Degree Murder, and the trial court properly refused to excuse her for cause. Humphreys, 1997 OK CR 59, ¶ 3, 947 P.2d at 570.

¶ 9 Further, apparently even Appellant's trial counsel believed the juror to be legally qualified after Judge Post's follow up questioning because he ultimately passed the juror for cause. The right to challenge any juror for cause is a statutory right which may be waived by the defendant. Plantz v. State, 1994 OK CR 33, ¶ 24, 876 P.2d 268, 277, cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091 (1995).

¶ 10 Thereafter, but prior to the jury being sworn, Appellant renewed his objection to prospective Juror Riggs, even though he had previously excused her by peremptory, and stated that he would have used his last peremptory challenge to excuse Mr. Smith if Ms. Riggs had been excused for cause by the court. In the interim, Appellant had passed for cause prospective jurors, Mr. Smith and Ms. Bunt.¹

¶ 11 We have held:

"The failure of the trial court to remove a prospective juror who unequivocally states that he is unwilling to follow the law during the penalty phase by considering a life sentence is error. The record reflects that defense counsel challenged the prospective juror for cause, and when the court denied the challenge, defense counsel used a peremptory challenge. All of appellant's peremptory challenges were subsequently used; but as there is nothing in the record to show that any juror who sat on the trial was objectionable, we are unable to discover any grounds for reversal."

Ross v. State, 1986 OK CR 49, ¶ 11, 717 P.2d 117, 120 (citations omitted), aff'd sub nom, Ross v. Oklahoma, 487 U.S. 81, 83-84, 108 S.Ct. 2273, 2276, 101 L.Ed.2d 80, 87 (1988). In affirming Ross v. State, the U.S. Supreme Court said:

"On further examination by defense counsel, [Prospective Juror] Huling declared that if the jury found petitioner guilty, he would vote to impose death automatically. Defense counsel moved to have Huling removed for cause, arguing that Huling would not be able to follow the law at the penalty phase. The trial court denied the motion and Huling was provisionally seated. The defense then exercised its sixth peremptory challenge to remove Huling. The defense ultimately used all nine of its challenges. . . . None of the 12 jurors who actually sat and decided petitioner's fate was challenged for cause by defense counsel."

Ross, 487 U.S. at 83-84,108 S.Ct. at 2276. The Supreme Court further stated,

"Any claim that the jury was not impartial, therefore, must focus not on Huling, but on the jurors who ultimately sat. None of those 12 jurors, however, was challenged for cause by petitioner, and he has never suggested that any of the 12 was not impartial.. . . We conclude that petitioner has failed to establish that the jury was not impartial."

Ross, 487 U.S. at 86, 108 S.Ct. at 2277, 101 L.Ed.2d at 88.²

¶ 12 We have examined the entire record on voir dire and we find nothing to indicate that Mr. Smith, or any of the jurors who ultimately decided the case, were not impartial.

FIRST STAGE ISSUES

¶ 13 Myers claims that evidence of other "unrelated" crimes deprived him of a fair trial. The State filed an extensive Notice of Intent to offer evidence of other crimes, seeking to offer evidence that:

1. In June of 1976, Appellant sexually assaulted and threatened to kill Bonnie Makin Hames.

2. In July and August of 1986, Appellant sexually assaulted and threatened to kill Stacey Lane Fain.

3. In April of 1993, Appellant sexually assaulted and murdered Shawn Marie Williams.

¶ 14 The State claimed that these incidents helped establish the motive for the murder of Cindy Marzano, the victim in this case. The State additionally claimed that these incidents had sufficient similarities to the murder of Cindy Marzano to establish intent. All victims were females with which he had become acquainted and were...