Pickens v. State, F-90-1297

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Citation: 1994 OK CR 74,885 P.2d 678
• Docket Number: No. F-90-1297,F-90-1297
• Parties: Darrin Lynn PICKENS, Appellant, v. STATE of Oklahoma, Appellee.
• Decision Date: 14 November 1994

Page 678

885 P.2d 678 Darrin Lynn PICKENS, Appellant,
v.
STATE of Oklahoma, Appellee. No. F-90-1297. Court of Criminal Appeals of Oklahoma. Nov. 14, 1994.

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An Appeal from the District Court of Creek County; Donald D. Thompson, District Judge.

Darrin Lynn Pickens was convicted of First Degree Murder, Feloniously Carrying a Firearm and Robbery With Firearms After Former Conviction of Two or More Felonies in the District Court of Creek County, Case No. CRF-90-66, sentenced to death, ten years, and life imprisonment, and appeals. The Judgments and Sentences for First Degree Murder, Feloniously Carrying a Firearm and Robbery With Firearms After Former Conviction of Two or More Felonies are

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REVERSED and the case is REMANDED for NEW TRIAL.

J. Michael Busch, W. Creekmore Wallace, II, Sapulpa, at trial, and William H. Luker, Deputy Appellate Indigent Defender, Norman, on appeal, for appellant.

Don I. Nelson, Asst. Dist. Atty., Sapulpa, at trial, and Susan Brimer Loving, Atty. Gen. of Oklahoma and A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, on appeal, for appellee.

OPINION

CHAPEL, Judge:

Darrin Lynn Pickens was tried by jury in the District Court of Creek County in Case No. CRF-90-66 before the Honorable Donald D. Thompson. He was convicted of First Degree Murder in violation of 21 O.S.1981, § 701.7, Feloniously Carrying a Firearm (21 O.S.1981, § 1283) and Robbery With Firearms After Former Conviction of Two or More Felonies (21 O.S.1981, § 801). The jury found that 1) the murder was especially heinous, atrocious, or cruel; 2) Pickens had previously been convicted of felonies involving violence; 3) Pickens committed the murder for the purpose of avoiding or preventing lawful arrest or prosecution; and 4) there was a probability Pickens would constitute a continuing threat to society. Pickens was sentenced to death, ten years, and life imprisonment, respectively. He has perfected his appeal of these convictions, raising twenty-one propositions of error. We reverse and address only those propositions containing error in the pretrial and guilt/innocence stages.

During the early morning hours of February 4, 1990, Pickens robbed the Mr. Quick 21 convenience store in Sapulpa. After the robbery he shot the clerk, Tommy Lee Hayes, four times. A customer found Hayes' body between 2:00 and 3:00 a.m. on February 4. Three .38 caliber unjacketed lead bullets were found at the scene, and two more were recovered from the body. Tulsa police arrested Pickens on other charges on February 9.¹ They found a snubnose .38 caliber revolver in Pickens' car. Ballistics tests connected the revolver to the Tulsa crimes but could not confirm it as the weapon in the Sapulpa crime. When Pickens was interviewed and arraigned on the Sapulpa charges on March 9, 1990, he confessed.

In Proposition I Pickens contends that his confessions were inadmissible because he did not waive his Fifth and Sixth Amendment rights to counsel. In Subproposition A Pickens challenges the admissibility of his March 9, 1990 videotaped confession on Sixth Amendment grounds.² Pickens was brought from Tulsa to the Creek County police department on March 9, and, after being given Miranda warnings, interviewed from approximately 11:00 a.m. until 12:15 or 12:30 p.m.³

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After the interview Pickens was escorted to lunch, then transported to court and arraigned on the Creek County charges about 1:00 p.m. He then returned to the police department, where he confessed to the Sapulpa crimes on videotape in a second interview that began about 1:30 p.m. Before beginning the videotaped confession, Creek County officers showed Pickens the earlier Miranda form and asked him if that was what he signed that morning.

Although the State characterizes the day's events as one long confession, it is clear that Pickens was interviewed twice.⁴ In the first, before arraignment, Pickens confessed to the robbery and murder, but some details did not quite correspond with the crime scene. The second interview was the videotaped confession, in which Pickens admitted more damaging facts. At trial the State relied on this second interview, which was played for the jury.

The Sixth Amendment right to counsel attaches at arraignment, and a defendant has a right to counsel at any postarraignment questioning.⁵ To prove a valid waiver of that right, the State must prove an intentional relinquishment or abandonment of a known right or privilege.⁶ The court minutes, the only record of the Creek County arraignment, state in full:

"Deft. present. Copy of C & I given deft. C & I read to deft. in open Court by Mike Loeffler, Asst. D.A. Deft. advised of his rights. Preliminary hearing set May 2, 1990 at 1:30 p.m. Court enters a plea of Not Guilty for deft. No bond will be set." (OR 7)

This note indicates Pickens was advised of his rights, and, absent any indication in the record otherwise, this Court must assume the trial court correctly included the right to counsel. However, a trial judge is required to make an extensive record regarding a defendant's waiver of counsel during court proceedings.⁷ No such record appears here. This Court will not presume waiver of Pickens' right to counsel from a silent record.⁸ Nothing in the record suggests Pickens waived his right to counsel at arraignment.⁹ On March 13, 1990, the arraignment court

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issued an order appointing counsel for Pickens in Creek County. Although this is dated four days after Pickens' arraignment, there were no intervening court dates and the logical inference is that arrangements for appointment of counsel were made during or as a result of the March 9 arraignment. This further indicates that Pickens did not waive counsel at arraignment.

Although Pickens' right to counsel had attached before the 1:30 p.m. videotaped interview, he was not again advised of his Miranda rights, nor was any effort made to determine whether he understood he had a right to have counsel present during questioning or wanted counsel in that interview. A defendant may waive his Sixth Amendment right to counsel after the right attaches.¹⁰ Here, nothing in the record indicates that Pickens did so, or was afforded the opportunity to do so.¹¹

Admission of the videotaped confession was not harmless error. Harmless error is applied to illegally obtained confessions only where the State demonstrates beyond a reasonable doubt that the unconstitutional confession did not contribute to the conviction.¹² Although the State introduced into evidence transcripts of the partially tape recorded first interview, the State emphasized the videotaped confession, played it for the jury, and referred to it almost exclusively in first stage argument. No physical evidence links Pickens to the scene of the crime: no fingerprints, blood stain evidence, or ballistics evidence positively connect Pickens with Tommy Lee Hayes and Mr. Quick 21. The videotape includes admissions of fact which match the crime scene but were absent from the tape recorded interview. This Court has held that admission of a color videotaped defendant's statement was not harmless error even though it substantially matched an earlier statement, as the Court would not speculate regarding the impact of the color videotape on the jury or its part in the ultimate sentence of death.¹³ Pickens' videotaped confession was clearly obtained in violation of his Sixth Amendment right to counsel and should not have been admitted. The confession comprised most of the State's case against Pickens, and the State has not shown beyond a reasonable doubt that its admission did not contribute to Pickens' conviction and that the error was not harmless.

In Proposition IV Pickens argues that the trial court committed fundamental error in failing to instruct on lesser included offenses of second degree murder and first degree manslaughter after instructing on the defense of voluntary intoxication. Although the record does not indicate Pickens requested instructions on the lesser included offenses of second degree murder and first degree manslaughter, the trial court should give such instructions whether requested or not if they are warranted by the evidence.¹⁴ The Supreme Court has held that in death cases, the jury must be instructed on lesser included noncapital offenses supported by the evidence, in order to give the jury a viable option between acquittal and a death penalty offense.¹⁵ No such instructions were given.

Based on the evidence at trial indicating Pickens had smoked PCP immediately before the crime the trial court instructed the jury on voluntary intoxication. The propriety of the...