Perry v. State
| Decision Date | 07 April 1995 |
| Docket Number | No. F-90-1295,F-90-1295 |
| Citation | 1995 OK CR 20,893 P.2d 521 |
| Parties | Randy Scott PERRY, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Randy Scott Perry was charged in Grady County District Court, Case No. CRF-90-65, with First Degree Murder with Malice Aforethought, in violation of 21 O.S.Supp.1989, § 701.7, and Kidnapping, in violation of 21 O.S.1981, § 741. The State filed a Bill of Particulars seeking the death penalty for the murder charge. 1 The Bill of Particulars alleged two aggravating circumstances in support of the death penalty: (1) the murder was especially heinous, atrocious or cruel; and (2) there existed a probability that Perry would commit criminal acts of violence constituting a continuing threat to society. 2
A jury trial was held from November 7 through November 9, 1990, before the Honorable James R. Winchester, District Judge. At the conclusion of the State's case-in-chief, the district court dismissed the kidnapping charge, but allowed the trial for murder to continue. At the conclusion of the first stage of trial, the jury returned a verdict of guilty of first degree murder. The case then proceeded to the capital sentencing phase of trial. 3 During sentencing, the jury found the existence of both aggravating circumstances alleged by the State and sentenced Perry to death. Perry has appealed his conviction and sentence. We now affirm Perry's conviction for first degree murder, but modify his sentence to life without parole.
Around 10:00 p.m. on March 27, 1990, Tonya Rodgers, a seventeen-year-old girl, was discovered missing from the parking lot of the Southgate Mini Mall, an abandoned convenience store on State Highway 19 in Chickasha, Oklahoma. As she did almost every night, Rodgers went to the Mini Mall shortly after 9:00 p.m. to call her boyfriend, Ricky Start, from the pay telephone located near the store. Rodgers borrowed her mother's car to drive to the Mini Mall. Rodgers usually parked the car facing the telephone and left the headlights on so she could see while making her call. Start testified that he and Rodgers talked on the telephone from approximately 9:15 p.m. to 9:45 p.m.
When Rodgers did not return home from making her telephone call by 10:00 p.m., her mother and sister went to the Mini Mall to look for her. They discovered Rodgers' car in the parking lot of the store, but Rodgers was missing. The driver's side window of the car was broken, the car keys were in the ignition and the car headlights were off. A compass, which looked similar to the type of compass found on the end of survival knives, and a paper bag were found by the car.
On March 28, Rodgers' body was found in Bitter Creek near the Bitter Creek Bridge in Grady County. The body was naked except for one sock, and her hands were tied behind her back with a shoelace. There was no evidence of sexual abuse. Rodgers' clothes and some buttons from her sweater were found on the river bank, and a pool of blood was found near the creek. There were also two sets of footprints on the river bank. However, the footprints did not match Perry's footprints, and there is no evidence showing whether or not the footprints matched Rodgers' footprints.
The medical examination of Rodgers revealed a stab wound to the chest, a blow to the back of the head, a cut on the arm, a couple of small bruises on her face and a bruise on her knee. These wounds occurred before death. There were also some post-mortem wounds. The medical examiner determined Rodgers died from the stab wound to the chest.
In March 1990, Perry was living with his mother, his stepfather, Mark Hill, and his half-brother, Kevin Patterson. Perry was on medical leave from the military. It does not appear that Perry knew or had any connection with Rodgers.
On March 27, Perry got out of bed around 5:00 p.m. During the early evening hours, Perry finished the one-liter bottle of tequila that he had started drinking the previous day and ate dinner. Apparently, Perry drank approximately a half-a-liter of tequila on a daily basis. At some point that evening Perry's mother, Beverly Hill, asked Perry if he would pick Patterson up from work. Patterson worked at the local Dairy Queen. Perry agreed to help his mother and left the house around 9:30 p.m. to pick up his stepbrother.
Patterson testified he was working at the Dairy Queen on the evening of March 27. He stated he finished work at approximately 10:15 and left work with Perry around 10:30 p.m. Patterson stated he could not pinpoint the time at which Perry arrived at the Dairy Queen.
Patterson testified that Perry was driving their mother's brown Nova that evening. According to Patterson, Perry drove to a gas station to buy some gas. Then Perry drove to the Southgate Mini Mall to look for his hat, but they did not stop to look for the hat there. Perry next drove "[o]ut to a bridge someplace" to look for his hat. 4 Apparently Perry found his hat somewhere near the bridge.
The prosecutor then asked Patterson if Perry made any statements during the car ride. After appearing to avoid answering the question and saying that "[i]t's all kind of jumbled up right now", Patterson testified that Perry said "he had killed her." 5 According to Patterson, when the report came over the police scanner that Rodgers was missing, Perry indicated she was the girl he had killed. Patterson then indicated he was not sure what else Perry said. The prosecutor asked Patterson if he had testified at the preliminary hearing that Perry said he stabbed the girl, and Patterson agreed that he had so testified. 6
In addition to Patterson's testimony, another witness, Randy Allen, testified that he saw Perry's car by the Bitter Creek Bridge around 10:10 p.m. on March 27. Perry's mother testified Perry's clothes were wet and sandy the night of March 27. Hair matching Rodgers' hair was found in Perry's car. However, Perry's step-father testified that he had given Rodgers a ride in his car shortly before March 27 and she had brushed her hair in the car at that time.
Based on this evidence, the jury concluded that Perry was guilty of the murder of Tonya Rodgers. During sentencing, the State incorporated all of the first stage evidence. The State then called one witness who testified that Rodgers was wearing a watch at the time of her death. The watch had stopped running and the time on the watch was 10:10. In mitigation, Perry's mother testified about his childhood, his mental health history and his relationship with his children. Based on this evidence, the jury found the existence of two aggravating circumstance and recommended Perry be sentenced to death.
In Proposition VIII of his brief, Perry contends that the verdict finding him competent to stand trial was in error. We find no merit in Perry's arguments that the competency determination was improper or in error.
Prior to trial, Perry filed an application to determine competency. Initially he was evaluated by Dr. John Quinn, who expressed some question about whether Perry comprehended the severity of the crimes with which he was charged and the possible punishments that might be imposed for such crimes. Based on Dr. Quinn's observations and report, Perry was referred to Eastern State Hospital for further evaluation.
At Eastern State Hospital, Dr. Charles Patterson examined Perry and concluded Perry was competent to stand trial. Subsequently, Dr. Quinn reevaluated Perry and determined him competent to stand trial. A post-evaluation competency hearing was held and the trial court concluded that Perry was competent to stand trial. 7
In sub-proposition A of Proposition VIII, Perry complains that the trial court erred in taking judicial notice of Dr. Patterson's letter reporting his findings about Perry's competence to stand trial. After Perry was evaluated at Eastern State Hospital, the court received a letter from Dr. Patterson in which the doctor reported that Perry was competent to stand trial. Patterson did not testify at Perry's competency hearing, nor did anyone else possessing knowledge of Dr. Patterson's letter testify with respect to that report. Nonetheless, at the conclusion of the post-examination competency hearing, the trial court, over the objections of defense counsel, stated that it would take judicial notice of Dr. Patterson's letter.
On appeal, Perry complains that Dr. Patterson's report constituted inadmissible hearsay. Under the business records exception to the hearsay rule, Dr. Patterson's letter would be admissible if the foundational requirements of 12 O.S.1981, § 2803(6) were met. 8 To comport with the foundational requirements of § 2803(6), it was not necessary for Dr. Patterson to testify. 9 However, it was necessary that "someone who could testify that the report was in fact made at or near the time and by, or from information transmitted by, a person with knowledge of the circumstances reported" 10 testify and authenticate the document. Here, neither Dr. Patterson nor anyone else possessing knowledge of the Patterson letter testified. Accordingly, admission and consideration of such letter was error. 11 However, this error does not warrant relief because a review of the evidence and...
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