Parker v. State, F-94-1098

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Citation917 P.2d 980,1996 OK CR 19
Docket NumberNo. F-94-1098,F-94-1098
PartiesSteven Eugene PARKER, Appellant, v. STATE of Oklahoma, Appellee.
Decision Date23 April 1996

Page 980

917 P.2d 980
Steven Eugene PARKER, Appellant,
STATE of Oklahoma, Appellee.
No. F-94-1098.
Court of Criminal Appeals of Oklahoma.
April 23, 1996.
Rehearing Denied June 21, 1996.

William H. Luker, Deputy Division Chief, Capital Direct Appeals Division, Oklahoma Indigent Defense System, Norman, for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Sandra D. Howard, Assistant Attorney General, Oklahoma City, for appellee on appeal.

Page 983


JOHNSON, Presiding Judge:

Steven Eugene Parker, appellant, was tried by jury for the crime of first degree felony murder in violation of 21 O.S.1991, § 701.7, in Case No. CF-93-1832 in the District Court of Oklahoma County before the Honorable Virgil C. Black, District Judge. Appellant was represented by counsel. The jury returned a verdict of guilty and set punishment at life imprisonment without the possibility of parole. The trial court sentenced appellant in accordance with the jury's verdict. From this Judgment and Sentence, appellant has perfected his appeal to this Court.

On March 24, 1993, Joardan Ahmed was at work at Classen Foods, a convenience store owned by him and his wife, Ismat Bezum. Ms. Bezum, who was nine months pregnant, went to the store around 12:30 p.m. to bring lunch to her husband. Ms. Bezum was sitting on a bar stool behind the cash register. Their son was present in the store and was watching television. Mr. Ahmed joined his wife and son and was standing behind them when two customers entered the store. Both men were black and one man was noticeably taller than the other. The shorter of the two, later determined to be Sammy Polin, brought some candy to the cash register. The taller man, identified by Ms. Bezum at trial as the defendant, ordered Ms. Bezum to give him the money from the cash register.

Ms. Bezum opened the register and gave him the money, which was approximately $100.00 to $150.00. The defendant was very excited and Mr. Ahmed told him to calm down, that they would do whatever he wanted. The defendant did not calm down and demanded Mr. Ahmed's wallet.

As Ms. Bezum was looking for the wallet under the register where it was normally kept, she heard a shot and saw her husband falling over the wall. She noticed smoke in front of his chest and blood on his chest. Ms. Bezum grabbed her husband as he fell to the floor then pushed the panic button under the register and tried to call 911.

On March 26, 1993, homicide detective Mike Veasey received information from Oklahoma City Police Detective Ron Mitchell that the two suspects in the robbery and murder wanted to turn themselves in. Appellant and Sammy Polin were taken into custody. Their statements were taken on video tape and appellant admitted to being in the store but did not recall shooting Mr. Ahmed.

The State sought the death penalty for appellant and, during the second stage of trial, admitted evidence in support of three aggravating circumstances as well as victim impact evidence. Appellant presented testimony of several family members who testified about his early childhood and present character.

On appeal, appellant first asserts that his videotaped statement was improperly admitted into evidence because he had unequivocally invoked his right to counsel during the course of making this statement. He argues that because the police did not cease their interrogation when he invoked this right all statements which followed were inadmissible.

A hearing was held outside the presence of the jury to determine the admissibility of the taped statement. Detective Veasey testified, and the videotape shows, that he read appellant his rights under Miranda. Appellant responded that he understood his rights and that he wanted to talk to the officers. At the hearing, defense counsel objected to the admission of the tape on the basis that appellant had exercised his right to remain silent and was induced to continue making statements in violation of the Fifth Amendment. However, on appeal, appellant claims that the tape was inadmissible because he had invoked his right to counsel. In addition, when the defense cross-examined the detective who took appellant's statements, no questions were asked regarding the invocation of the right to counsel. Therefore, because the error raised on appeal was not the objection made at trial, our review is for plain error only.

Appellant claims in this appeal that his request for counsel was unequivocal and that his video taped statements were admitted in violation of his right to counsel. The Supreme Court has recently addressed this issue in Davis v. United States, 512 U.S. 452,

Page 984

114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). The Davis Court found that if a suspect makes a request for counsel that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, Supreme Court precedents do not require that questioning cease. Id. at ----, 114 S.Ct. at 2355. The Court stated further that if it were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, the clarity and ease of application necessary for effective law enforcement would be lost. Id. at ----, 114 S.Ct. at 2356.

In light of the circumstances in the case at bar, a reasonable officer questioning appellant may not have interpreted his statements as an unequivocal request for counsel. After being read his Miranda rights, appellant stated that he understood them. When asked, "Do you wish to talk?", appellant said, "I'll give you some statements." Then he said, "I would like to talk to an attorney." Detective Veasey asked, "Are you wanting an attorney right now, cause if you are, you know, the interview is over." Appellant replied, "You said I could stop when I wanted to, right?" Detective Veasey responded, "That's right," and appellant said, "I said I'd give you some statements and I can stop when I want to." We find that there was no unequivocal invocation of a right to counsel here.

The admission of appellant's video taped statements was not error. Moreover, the statements were not a confession by appellant. Rather, he admitted being in the store but said that he heard a shot, ran and "blanked out." Accordingly, this proposition of error must fail.

In his second proposition of error, appellant claims the trial court erred in allowing the State to question his stepmother, Patricia Fleeks, about a statement appellant had made at a family meeting. While the defense objected to this line of questioning, the trial court overruled the objection because the prosecutor's questioning was a proper subject for cross-examination as it had been brought up on direct examination. We find the trial court ruled properly in this case.

Title 12 O.S.1991, § 2611(C) provides that cross-examination shall be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. Furthermore, the court may permit inquiry into additional matters as if on direct examination. The extent of cross-examination rests in the discretion of the trial court and reversal is only warranted where there is an abuse of discretion resulting in prejudice to the defendant. Walker v. State, 887 P.2d 301, 314 (Okl.Cr.1994).

In the instant case, appellant opened up the topic of statements which were made by him at a family meeting by introducing the testimony of Patricia Fleeks who was present for part of the discussion. Appellant cannot present a witness to testify as to certain facts and then expect the State not to question the same witness further on cross-examination. One who opens up an area of inquiry on direct examination is not then able to complain when that area is pursued further on cross-examination. Id. Consequently, we find no abuse of discretion by the trial court here, and this proposition of error is without merit.

For his third assignment of error, appellant asserts that it was reversible error to allow the prosecution to introduce co-defendant Polin's out-of-court statements which implicated appellant in the crime. This is so, because Polin had previously refused to testify and was therefore, unavailable for cross-examination.

At trial, Detective Veasey testified regarding the arrest and interrogation of appellant. In so doing, the Detective testified to a certain statement made by co-defendant Polin. However, it was defense counsel who first interjected the statement of Polin for the jury's consideration. In fact, it was the prosecutor who objected to defense counsel's introduction of Polin's statement into the trial. In any event, once a statement is admitted it becomes a proper subject of cross-examination. Id. As discussed in the preceding proposition of error, the line of inquiry was opened up by the defense. Appellant cannot now complain because they were prevented

Page 985

from introducing only a portion of the statement made by co-defendant Polin. This argument fails.

For his fourth proposition of error, appellant claims that the trial court lacked subject matter jurisdiction to try his case because the Information failed to allege the elements of the underlying felony in the first degree felony murder charge.

The United States and Oklahoma Constitutions require that an accused person be informed of the charges against which he must defend. This requirement is rooted in the Due Process Clauses of both constitutions. U.S. Const. amends. VI, XIV; Okla. Const. art. 2, §§ 7, 20. This notice requirement helps an accused to prepare an adequate defense to the charges against him as it informs him of what he must be prepared to meet. Warren v. State, 24 Okl.Cr. 6, 11, 215 P. 635 (1923). Simply put, due process requires that a defendant have notice of the crime with which he is charged.

In Oklahoma, notice is commonly given by the charging document known as the...

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