Paxton v. State

• Decision Date: 30 December 1993
• Docket Number: No. F-89-1199,F-89-1199
• Citation: 867 P.2d 1309
• Parties: Kenneth Wayne PAXTON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1309

867 P.2d 1309

Kenneth Wayne PAXTON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-89-1199.

Court of Criminal Appeals of Oklahoma.

Dec. 30, 1993.

Rehearing Denied Feb. 10, 1994.

An Appeal from the District Court of Oklahoma County; David M. Cook, District Judge.

Kenneth Wayne Paxton, Appellant, was tried by jury and convicted of Murder in the First Degree (21 O.S.1981, § 701.7) (Count I); Shooting with Intent to Kill (21 O.S.1981, § 652) (Count II); Discharging a Firearm with Intent to Kill (21 O.S.1981, § 652) (Count III); and Possession of a Loaded Firearm, After Former Conviction of a Felony (21 O.S.1981, § 1283) (Count IV), Case No. CRF-89-765, in the District Court of Oklahoma County. The jury found the existence of three (3) aggravating circumstances and recommended punishment of death for the murder conviction and life imprisonment for Count II; twenty (20) years imprisonment in Count III; and ten (10) years imprisonment on Count IV. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.

AFFIRMED.

Frank Miskovsky (at trial), Oklahoma City, Benjamin McCullar, Asst. Appellate Indigent Defender (on appeal), Norman, for appellant.

Robert Macy, Dist. Atty., Barry Albert, Asst. Dist. Atty., Susan Brimer Loving, Atty. Gen. of Oklahoma, A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for State.

OPINION

LUMPKIN, Presiding Judge:

Appellant Kenneth Wayne Paxton was tried by jury and convicted of Murder in the First Degree (21 O.S.1981, § 701.7) (Count I); Shooting with Intent to Kill (21 O.S.1981, § 652) (Count II); Discharging a Firearm with Intent to Kill (21 O.S.1981, § 652) (Count III); and Possession of a Loaded Firearm, After Former Conviction of a Felony (21 O.S.1981, § 1283) (Count IV), Case No. CRF-89-765, in the District Court of Oklahoma County. The jury found the existence of three (3) aggravating circumstances and recommended punishment of death for the murder conviction and life imprisonment for Count II; twenty (20) years imprisonment in Count III; and ten (10) years imprisonment on Count IV. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.

Appellant was found guilty of killing Donna Kay Neal, discharging a firearm with the intent to kill her sister, Linda Neal, and shooting with the intent to kill Edward Peters. The facts surrounding these crimes will be discussed below.

FIRST STAGE TRIAL ISSUES

In his first assignment of error, Appellant challenges the sufficiency of the evidence to support the convictions for malice aforethought murder and shooting with intent to kill. In support of his argument, he relies on his testimony at trial and post-trial affidavits challenging the credibility of Linda Neal and Edward Peters.

The test for reviewing the sufficiency of the evidence is well known: whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985). This Court has held repeatedly that the jury is the exclusive judge of the weight of the evidence and the credibility of the witnesses testimony. Hollan v. State, 676 P.2d 861, 864 (Okl.Cr.1984); Isom v. State, 646 P.2d 1288, 1292 (Okl.Cr.1982). Although there may be conflict in the testimony, if there is competent evidence to support the jury's finding, this Court will not disturb the verdict on appeal. Enoch v. State, 495 P.2d 411, 412 (Okl.Cr.1972).

In conducting our appellate review, affidavits filed after trial and not heard by the jury will not be considered. We will not allow a defendant a second attempt to test the credibility of the witnesses. Pierce v. State, 786 P.2d 1255, 1264 (Okl.Cr.1990). The affidavits supplied in this case, police reports containing statements made by Linda Neal immediately after the shooting and allegedly inconsistent with her trial testimony and the opinion of a clinical psychologist as to the effects of cocaine upon an individual's perception and memory, contained information which was brought out in the cross-examination of the State's witnesses. To the extent this evidence was considered by the jury, it will be considered in our review.

Here, the evidence showed that the decedent, Linda Neal and Edward Peters had been at Peters' home smoking cocaine during the early morning hours of February 5, 1989. The decedent had left the house to borrow money from Appellant for more cocaine. Appellant, armed with a .357 snub-nosed revolver, followed the decedent to Peters' home. Appellant had previously made hostile remarks to Peters about the decedent, and warned the decedent to stay away from Peters and from using cocaine. After returning to Peters' home with the money obtained from Appellant, the decedent acted nervous and repeatedly looked out the window. She saw Appellant's car drive up the street and thought that Appellant was coming after her. Appellant drove around the block at least once before parking his car down the street and walking to Peters' front door. The decedent was unarmed as she answered the door and admitted the Appellant into the house. Appellant stepped inside the house, struck the decedent in the face and fatally shot her in the head.

"Malice" has been defined as the "deliberate intention unlawfully to take away the life of a human being". 21 O.S.1981, § 701.7(A). Sufficient premeditation to murder can be formed in a mere instant. Carter v. State, 698 P.2d 22, 24 (Okl.Cr.1985). Here, the State sufficiently proved that Appellant had the deliberate intention to unlawfully take the life of Donna Kay Neal.

The evidence also clearly showed that Appellant had the intent to kill while shooting at Edward Peters. After shooting the decedent, Appellant turned the gun on Peters. Firing twice at Peters, Appellant chased him from the kitchen to the bathroom. There, Appellant forced open the door, pointed the gun at Peters' head and fired once, striking Peters in the neck. While Appellant offered a theory of self defense, the jury chose to believe the evidence as set forth by the State. It is not the province of this Court to second guess the trier of fact. Yell v. State, 694 P.2d 946 (Okl.Cr.1985); McDonald v. State, 674 P.2d 1154 (Okl.Cr.1984). Accordingly, this assignment of error is denied.

In his second and third assignments of error, Appellant challenges the jury instructions. He argues that the trial court erred in refusing to give his requested instruction on second degree depraved mind murder and in giving an inaccurate instruction on flight. The determination of which instructions shall be given to the jury is a matter within the discretion of the trial court. Absent an abuse of that discretion, this Court will not interfere with the trial court's judgment, if the instructions as a whole accurately state the applicable law. Pham v. State 752 P.2d 830, 832 (Okl.Cr.1988); Pollard v. State, 528 P.2d 1121 (Okl.Cr.1974).

In a murder prosecution, the trial court is to instruct on every degree of homicide which the evidence tends to prove. Tarter v. State, 359 P.2d 596, 601 (Okl.Cr.1961). See also Camron v. State, 829 P.2d 47, 56 (Okl.Cr.1992). Murder in the second degree occurs "[w]hen perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect death". 21 O.S.1981, § 701.8(1). We have held that this statute is applicable where there is no premeditated intent to kill any particular person. Boyd v. State, 839 P.2d 1363, 1367 (Okl.Cr.1992). Appellant argues that given his longstanding jealousy of the decedent's relationship with Peters, a reasonable juror could have found that his acts were imminently dangerous and evinced a depraved mind but were committed without the design to effect death. We disagree. Here, the evidence showed that the Appellant acted with the specific intent to effect the death of the decedent. Therefore, the evidence does not support the giving of a jury instruction on second degree depraved mind murder.

The evidence also did not warrant giving an instruction on flight, according to Appellant's next allegation. He argues that his actions were not consistent with departing the scene with a guilty conscience. In the alternative, he argues that if a jury instruction was warranted, the one given was improper.

Evidence of a defendant's flight has long been held admissible as tending to show consciousness of guilt. Wills v. State, 636 P.2d 372, 375 (Okl.Cr.1981). Actions by a defendant, such as flight to avoid arrest and attempts to destroy evidence, are admissible as tending to establish the guilt of the accused. Id. at 376. In the present case, Appellant initially left the scene of the murder but returned to place a knife in the victim's hand; departing the scene of the homicide, he was observed by police driving at an excessive rate of speed; and after some furtive moves and two requests by the police, Appellant eventually exited the vehicle. We find this sufficient evidence upon which to give a jury instruction on flight. See Boltz v. State, 806 P.2d 1117, 1124 (Okl.Cr.1991). The instruction given in the present case, Instruction No. 31, is virtually identical to number 806 of the Oklahoma Uniform Jury Instructions-Criminal (OUJI-CR) ¹. However, the following provision, contained in the OUJI-CR 806 is not contained in the instant instruction:

The defendant has offered evidence explaining his acts. You must consider the claim of the defendant in determining if flight occurred.

Appellant directs our attention to a notation in OUJI-CR 806 that this provision must be given where a defendant has introduced evidence explaining his acts. See Wilson v. State, 96 Okl.Cr. 137, 250 P.2d 72, 76 (1952). See also McDonald v. State, 764 P.2d 202, 204 (Okl.Cr.1988).

In the...