Powell v. State

• Decision Date: 14 July 1995
• Docket Number: No. F-91-431,F-91-431
• Parties: Dudley Allen POWELL, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 765

906 P.2d 765

Dudley Allen POWELL, Appellant, v. STATE of Oklahoma, Appellee.

No. F-91-431.

Court of Criminal Appeals of Oklahoma.

July 14, 1995.

Order Granting Rehearing Sept. 15, 1995.

An Appeal from the District Court in Garvin County, J. Kenneth Love, District Judge.

John A. Blake, Pauls Valley, for Appellant at trial.

Jamie D. Pybas, Oklahoma Indigent Defense System, Capital Division, Norman, for Appellant on appeal.

Charles Douglas, Pauls Valley, for State at trial.

Susan Brimer Loving, Attorney General, A. Diane Blalock, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

OPINION

STRUBHAR, Judge:

Dudley Allen Powell, Appellant, was tried by jury in the District Court of Garvin County, Case No. CRF-90-191, before the Honorable J. Kenneth Love, District Judge. ¹ Powell was convicted of Murder in the first degree (21 O.S.Supp.1989, § 701.7). The jury found two (2) aggravating circumstances ² and recommended death. The trial court sentenced Powell accordingly. From this Judgment and Sentence, he appeals. We affirm.

FACTS

On the evening of September 21, 1990 Jimmy Dewayne Thompson, Vickie Hensley and Brian Spears met to go "ride around" Pauls Valley. They were soon joined by Powell, Clairborne Johnson, III and Mickey Daniels. The group cruised through Pauls Valley, stopping at several places to buy alcohol and beer. Later in the evening the group decided to go to the Klondike Cemetery, a known hangout for drinking.

Hensley and Johnson ³ testified that on the way out to the cemetery Powell and Spears discussed beating Thompson and taking his truck. Powell had told Hensley and Daniels earlier in the evening that he "want[ed] to just kick [Thompson's] butt." At the cattle guard that blocked the entrance to the cemetery, Powell told Johnson and Daniels that when he was half way down the road leading into the cemetery, he was going to "jump" Thompson. Powell told Daniels, Spears and Johnson to join in the beating.

As they walked down the road, Hensley heard Powell say, "who is going to hit him first?" When she looked up Thompson was on the ground. Powell struck Thompson in the head with his fist. Johnson joined in and kicked Thompson while Powell jumped up and down on Thompson's body. Spears joined in and beat and kicked Thompson with the others. Hensley and Daniels retreated to the truck. Johnson testified he, Powell and Spears hit, kicked and jumped on Thompson. Johnson said they did not intend to kill Thompson at first, but at some point decided to kill him. After the beating Spears grabbed Johnson and Powell by the arms, produced a knife and said, "we [have] to kill him." They went back to Thompson's body and each stabbed him several times. Johnson testified they killed Thompson because he could testify against them.

Hensley and Daniels said Powell returned to the truck momentarily and told them Johnson had stabbed Thompson in the throat and that Johnson would take Thompson's truck to Tulsa and sell it. When Powell, Spears and Johnson returned to the truck they had blood on their shoes and hands. Spears told the group to "shut up and listen to what [Johnson had] to say." Spears wanted Johnson to take Thompson's truck to Tulsa and sell it. Spears told Hensley, "you just got to remember what I told you. If anyone asks you anything to just tell them what I said." Spears told Hensley to say that Thompson took them to the football game and that he [Spears], Hensley and Daniels went to Oklahoma City after the game. Spears emphasized, "you better tell [the police the story] because if you don't, we'll all get in trouble for all this." Daniels asked Powell, Spears and Johnson if they killed Thompson, but no one responded. He said Powell and Johnson continued to talk about selling the truck in Tulsa. Daniels said Powell told him later in jail that Johnson had a knife and they had stabbed Thompson.

The morning after the murder Spears told Daniels, "man, you don't want to know [what we did to Thompson]. The least you know, the better off you are." Spears told Daniels and Hensley they needed an alibi. Spears reiterated they must tell police they went to the football game and afterwards to Oklahoma City.

In a statement to police Powell said he rode around Pauls Valley drinking and ended up at Klondike Cemetery. There, he decided he would "kick [Thompson's] ass." Powell said he struck Thompson and stomped him along with the others. After the beating, he said they decided to steal Thompson's truck and to kill him. They went back to the body and Johnson produced a knife and stabbed Thompson. Powell told Officer Wigley he attacked Thompson because "he was stupid." Neither Powell nor Spears testified or put on evidence in first stage.

ISSUES RELATING TO JURY SELECTION

In his ninth proposition of error, Powell argues he was denied a fair trial when the trial court refused to excuse prospective juror Bryant for cause. Powell argues the trial court abused its discretion because it based its decision "not on what the totality of the examination suggested, but on the final round of questioning in which the State finally pressured Bryant into claiming that he could give both sides a fair trial." ⁴

The decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion. Allen v. State, 862 P.2d 487, 491 (Okl.Cr.1993), cert. denied, 511 U.S. 1075, 114 S.Ct. 1657, 128 L.Ed.2d 375 (1994); Workman v. State, 824 P.2d 378, 380 (Okl.Cr.1991), cert. denied, 506 U.S. 890, 113 S.Ct. 258, 121 L.Ed.2d 189 (1992). The trial court's decision will not be overturned unless an abuse of discretion is shown. Allen, 862 P.2d at 491; Simpson v. State, 827 P.2d 171, 175 (Okl.Cr.1992). We note all doubts regarding jury impartiality in a criminal case must be resolved in favor of the accused. Simpson, 827 P.2d at 175. This is so because a juror who cannot impartially decide guilt violates his oath and is the proper subject of a challenge for cause. Id.; Dutton v. State, 674 P.2d 1134, 1138 (Okl.Cr.1984).

During voir dire prospective juror Bryant stated that he had read all that he could about the case because he worked and went to college with Johnson's father. Bryant also followed Johnson's high school basketball career. When asked if he could be impartial, Bryant replied, "I would do my best." After the prosecutor advised Johnson would be a witness for the prosecution and relay the events of the murder, he asked Bryant if he could be impartial. Bryant again replied, "I would do my best." Bryant said he would "try" to set aside what he had read and listen to the evidence submitted in court. The prosecutor then asked if Bryant would follow the law and the court's instructions. Bryant replied that he would.

When questioned by Spears' counsel, Bryant advised that he had not seen Johnson's father in several years and that he had not formed an opinion as to the guilt or innocence of Powell or Spears. When Spears' counsel asked if he would tend to give more credibility to the testimony of Johnson, Bryant replied, "I would do my best to keep an open mind." Both Powell's and Spears' attorneys challenged Bryant for cause. Before ruling, the trial court allowed the prosecutor to rehabilitate Bryant. After receiving two equivocal answers, the prosecutor asked Bryant for a commitment to set aside his prior dealings with Johnson's father and the accounts he had read in the newspaper and consider only the evidence introduced at trial. Bryant stated he would do so. The trial court overruled the motion to excuse Bryant for cause.

Powell's counsel renewed the questioning about Bryant's impartiality and his commitment to start from "ground zero." Bryant replied, "[w]ell, the first two times I answered that, I said I would try. And the last time I said, yes. And it goes back to where I would do my darnest (sic) to do it. You know somebody for 20 years, you know, it is hard to block everything out of your mind. But I would do my best...." Bryant conceded it would be hard "to block everything out of [his] mind." Both Powell's and Spears' lawyers renewed their challenges for cause. The trial court again allowed the prosecutor to rehabilitate Bryant. Bryant unequivocally stated he would follow his oath and put aside all outside influences. The trial court overruled the renewed motions to remove Bryant for cause.

It is the trial court's duty to determine a prospective juror's actual bias, and it has broad discretion in ruling on challenges. Simpson, 827 P.2d at 175; Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734, 740 (1950). The determination of whether a member of the venire will be an impartial juror is influenced by many factors. Simpson, 827 P.2d at 175. Situations will arise where the judge receives a definite impression of a potential juror which is not reflected in the record. Id. In the instant case, despite Bryant's equivocal statements, the trial court was left with the impression that Bryant would be an impartial juror. Because support is found in the record for the trial court's decision, we find no abuse of discretion is shown. Id.

Additionally, in order for this Court to reverse a conviction or modify a sentence, Powell must show that he was prejudiced by the court's decision. Id. Powell claims he was prejudiced by the court's decision because his attorney was forced to remove Bryant with a peremptory challenge, thereby reducing his number of peremptory challenges to his detriment. There is no evidence in the record that Powell was forced to keep an unacceptable juror after he had exercised all of his peremptory challenges. ⁵ Id.; Tibbs v. State, 819 P.2d 1372, 1379 (Okl.Cr.1991); Brown v. State, 743 P.2d 133, 139 (Okl.Cr.1987); Hawkins v. State, 717 P.2d 1156, 1158 (Okl.Cr.1986). Therefore, Powell has failed to make a sufficient showing to warrant relief. Accordingly, this proposition of error is denied.

ISSUES RELATING TO GUILT/INNOCENCE

In his...