Oken v. State

Decision Date01 September 1994
Docket NumberNo. 80,80
PartiesSteven Howard OKEN v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Fred Warren Bennett, Christopher M. Davis, both on brief, Washington, DC, for Appellant.

Ann N. Bosse, Asst. Atty. Gen., J. Joseph Curran, Jr., Atty. Gen., both on brief, Baltimore, MD, for Appellee.

Argued before MURPHY, C.J., and ELDRIDGE, CHASANOW, KARWACKI, BELL and RAKER, JJ., and JOHN F. McAULIFFE, Associate Judge of the Court of Appeals (Retired), Specially Assigned.

RAKER, Judge.

Steven Howard Oken was found guilty by a Baltimore County jury of first degree murder, first degree sexual offense, burglary and the use of a handgun in a crime of violence. The same jury sentenced him to death. On direct appeal, this Court affirmed the convictions and the sentences for the first degree murder, the sexual offenses and the handgun violation. Oken v. State, 327 Md. 628, 612 A.2d 258 (1992), cert. denied, 507 U.S. 931, 113 S.Ct. 1312, 122 L.Ed.2d 700 (1993) (Oken I ). We reversed the burglary conviction on the grounds of insufficiency of evidence. Id.

Oken filed a petition for post-conviction relief pursuant to Maryland Code (1957, 1992 Repl. Vol., 1995 Supp.) Art. 27, § 645A-J, the Uniform Post-Conviction Procedure Act. 1 After an evidentiary hearing, Judge Dana Levitz of the Circuit Court for Baltimore County filed a well-reasoned opinion and order denying post-conviction relief. We granted Oken's application for leave to appeal. We shall affirm.

On November 1, 1987, Oken sexually assaulted and murdered Dawn Garvin at her home in Baltimore County. The facts that led to Oken's conviction and sentence were set out in Oken I:

At midnight on Sunday, November 1, 1987, Keith Douglas Garvin arrived at the United States Navy base in Oceana, Virginia. Mr. Garvin, who had a pass from his naval superiors, had just spent the weekend with his wife, Dawn Garvin, at their apartment in the Baltimore County community of White Marsh and was returning to his station in Oceana. Upon his arrival at the base, Mr. Garvin attempted to call his wife to notify her that he had arrived safely. Although the telephone rang at their White Marsh apartment, there was no answer. After making several additional unsuccessful attempts to call his wife, Mr. Garvin became worried and telephoned his father-in-law, Frederick Joseph Romano. Because Mr. Romano lived in close proximity to the Garvins' apartment, Mr. Garvin asked Mr. Romano to check on his wife. Mr. Romano agreed, and attempted to telephone his daughter twice. Both times there was no answer. Concerned about the fact that numerous calls to his daughter had gone unanswered, Mr. Romano decided to drive to his daughter's apartment.

When Mr. Romano arrived at his daughter's apartment, he found the front door to the apartment ajar, all the lights in the apartment turned on, and the television blaring. Sensing that something was wrong, Mr. Romano rushed into the apartment and found his daughter, Dawn, in the bedroom lying on the bed nude with a bottle protruding from her vagina. While attempting to give her cardiopulmonary resuscitation ("CPR"), Mr. Romano observed that there was blood streaming from her forehead. He immediately called for assistance, and paramedics arrived shortly thereafter. A paramedic then began to administer CPR, but his efforts were in vain. Dawn Marie Garvin was dead.

At 2:30 a.m., on November 2, Detective James Roeder of the Baltimore County Police Department arrived at the Garvins' apartment to inspect the scene of the murder. Detective Roeder testified that when he entered the Garvins' apartment he saw no signs of forced entry. Once inside, he observed a brassiere, a pair of pants, tennis shoes, a shirt, and a sweater on the floor near the sofa in the living room. The brassiere was not unhooked, but instead, was ripped on the side. The pants were turned inside out. Roeder also noticed a small piece of rubber on the floor near the television set. In the bedroom, Roeder found two spent .25 caliber shell casings on the bed, one of which was lying on top of a shirt. The shirt was blood stained and had what Roeder believed to be a bullet hole in it.

An autopsy of Ms. Garvin's body revealed that she had died as the result of two contact gunshot wounds; one of the bullets entered at her left eyebrow and the other at her right ear.

327 Md. at 634-35, 612 A.2d at 261.

Less than two weeks after Oken murdered Dawn Garvin, he sexually assaulted and murdered his sister-in-law, Patricia Hirt, at his Maryland home. He then fled Maryland for Maine, where he murdered Lori Ward, the desk clerk at his Maine hotel. He was arrested in Maine on November 17 1987, and was ultimately convicted in Maine for first degree murder, robbery with a firearm, and theft arising out of the Ward homicide. 2 See State v. Oken, 569 A.2d 1218 (Me.), cert. denied, 498 U.S. 818, 111 S.Ct. 62, 112 L.Ed.2d 36 (1990).

Oken was returned to Maryland where he faced separate prosecutions for charges arising out of the Garvin and Hirt homicides. He was indicted in the Circuit Court for Baltimore County in the Garvin case for first degree murder, sexual offenses, burglary, daytime housebreaking, robbery with a dangerous or deadly weapon, theft, and a handgun violation. The State notified Oken of its intent to seek the death penalty and advised him that as aggravating circumstances, it intended to establish that (1) the defendant committed the murder in the first degree of Dawn Garvin while committing or attempting to commit a first degree sex offense upon Dawn Garvin, and (2) the defendant committed the murder of Dawn Garvin in the first degree while committing or attempting to commit robbery of Dawn Garvin. See Art. 27, § 412(b). Oken entered pleas of not guilty and not criminally responsible. See Maryland Code (1982, 1994 Repl. Vol., 1995 Supp.) § 12-109 of the Health-General Article; Maryland Rule 4-242. At the trial, Oken was represented by defense counsel, Benjamin Lipsitz.

The State's evidence as to criminal agency was very strong. The murder weapon, a handgun, was found in Oken's home shortly after the murder and a rubber portion of Oken's tennis shoe was found in Dawn Garvin's living room on the night of the murder. In addition, several witnesses at trial identified Oken as the person in the neighborhood who had attempted to gain entry to residences in the vicinity of the Garvin home a few days prior to the murder.

On January 18, 1991, a jury in the Circuit Court for Baltimore County found Oken guilty of murder in the first degree (on theories of felony murder and premeditated murder), first degree sexual offense, burglary, and use of a handgun in a crime of violence. The jury acquitted Oken of the robbery charge. Pursuant to Maryland Rule 4-314, Oken elected a court trial on the issue of criminal responsibility. Judge James Smith concluded that Oken was criminally responsible.

A capital sentencing proceeding commenced on January 24, 1991 before the same jury that determined Petitioner's guilt. The State incorporated all the testimony and evidence from the guilt/innocence phase. The verdict sheet indicated that one or more of the jurors, but fewer than all twelve, found as mitigating circumstances "(1) fact of life sentence, (2) sexual sadism, and (3) substance abuse." On January 25, the jury unanimously determined the sentence to be death. On the remaining counts, Judge Smith imposed a sentence of life imprisonment for the first degree sexual offense, and consecutive terms of twenty years each for the burglary and the handgun violation. 3 This post-conviction proceeding reviews only the Baltimore County proceedings relating to the murder of Dawn Garvin. Additional facts will be recounted as necessary in our discussion of the issues raised by Oken in this appeal.

Before this Court, Oken asks us to consider claims of ineffective assistance of counsel and errors of the trial court at both the guilt/innocence stage and the sentencing stage. He asks us to consider the following questions:

I. Whether the trial court's voir dire questions comported with the dictates of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), and Evans v. State, 333 Md. 660, 637 A.2d 117, cert. denied, --- U.S. ----, 115 S.Ct. 109, 130 L.Ed.2d 56 (1994), in identifying prospective jurors with a pro-death penalty bias?

II. Whether the trial court erred at the sentencing proceeding in failing to instruct the jury that it could consider, as a non-statutory mitigating factor, that appellant was serving a sentence of life without parole under Maine law?

III. Whether Petitioner's trial counsel provided ineffective assistance of counsel?

IV. Whether the post-conviction court erred in not allowing Petitioner to obtain his own hair samples taken from him at the time of his arrest for purposes of conducting forensic tests to establish Petitioner's substance abuse at the time of the offense?

V. Whether the trial court erred in allowing the jury to use the underlying felony murder as an aggravator in the penalty phase of the trial?

VI. Whether the trial court erred in failing to instruct the jury that under Art. 27, § 413(g)(8), the "catch-all provision," it could list as a mitigating factor its desire to extend mercy to Petitioner.

We shall address each of these questions seriatim.

I. Whether the trial court's voir dire questions comported with the dictates of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), and Evans v. State, 333 Md. 660, 637 A.2d 117, cert. denied, --- U.S. ----, 115 S.Ct. 109, 130 L.Ed.2d 56 (1994), in identifying prospective jurors with a pro-death penalty bias?

Before this Court, Petitioner contends that despite his specific request for appropriate "reverse-Witherspoon " 4 questions, the trial court's voir dire was inadequate to identify those prospective...

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