Primeaux v. State

• Decision Date: 06 April 2004
• Docket Number: No. D 2002-319.,D 2002-319.
• Citation: 88 P.3d 893,2004 OK CR 16
• Parties: Edward Bruce PRIMEAUX, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

88 P.3d 893

2004 OK CR 16

Edward Bruce PRIMEAUX, Appellant v. The STATE of Oklahoma, Appellee.

No. D 2002-319.

Court of Criminal Appeals of Oklahoma.

April 6, 2004.

James Bowen, Wayna Lynn Tyner, Perry Hudson, Indigent Defense System, Capital Trial Division, Sapulpa, OK, Attorneys for Defendant at trial.

Mark L. Gibson, District Attorney, R. Brian Surber, Assistant District Attorney, Pawhuska, OK, Attorneys for the State at trial.

Grechen Garner Mosley, James Bowen, Wayna Lynn Tyner, Indigent Defense System, Capital Trial Division, Sapulpa, OK, Attorneys for Appellant on appeal. W.A. Drew Edmondson, Attorney General of Oklahoma, Brant M. Elmore, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

LILE, Vice Presiding Judge:

¶ 1 Appellant, Edward Bruce Primeaux, was charged with two counts of alternative theories of First Degree Murder (malice murder or felony murder) in violation of 21 O.S.Supp.1999, § 701.7(A) & (B), in Case No. CF-2000-396 in the District Court of Kay County, for the deaths of Warren Littlecook and Julia Bear who were killed on July 5, 2000, in Ponca City, Oklahoma.

¶ 2 The State filed a Bill of Particulars alleging five aggravating circumstances in the deaths of both Littlecook and Bear: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; (2) the defendant knowingly created a great risk of death to more than one person; (3) the murders were especially heinous, atrocious or cruel; (4) the murders were committed to avoid lawful arrest or prosecution, and (5) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.Supp. 1999, § 701.12(1), (2), (4), (5), & (7).

¶ 3 A jury trial was held before the Honorable D.W. Boyd, District Judge, in February 2002. The jury found Primeaux guilty of both counts of First Degree Murder. After the sentencing stage, the jury found the existence of all of the aggravating circumstances in the murder of Bear, and all but the "murder to avoid arrest" aggravating circumstance in the murder of Littlecook. The jury recommended that Primeaux be put to death for both of the murders. On March 1, 2002, Judge Boyd formally sentenced Primeaux to death on both counts, in accordance with the jury verdict. Primeaux has perfected his appeal of the Judgment and Sentence in this case.

I. FACTS

¶ 4 Warren Littlecook and Julia Bear lived together at 812 North Pine in Ponca City, Oklahoma. They were found stabbed to death on Thursday July 6, 2000. The evidence revealed that Littlecook was initially stabbed in the chest with a knife, which severed a major artery. Then, he was stabbed six times in the back. Littlecook died as a result of a loss of blood from the initial stab wound, which severed his pulmonary artery. He also had four post-mortem stab wounds in the stomach. He had defensive wounds on his left hand.

¶ 5 Julia Bear was stabbed forty-one times. She was sitting in a wheelchair when she was attacked. She was stabbed one time each in front of both shoulders. She was stabbed once in the upper left quadrant of her abdomen. She was stabbed eight times below the right breast area (three of these punctured the liver, causing internal bleeding). There were stab wounds to both hands. She was stabbed once in the right side of her back (one stab wound was to the chest cavity, which punctured the right lung and caused it to collapse). She was stabbed six times on the left side of her back (two of these entered the chest cavity and punctured the left lung and caused it to collapse). She was stabbed four times in her left upper arm. She was stabbed seven times in the left rear side of her neck. She was stabbed six times on the left front side of her neck and face (one of these severed the left external carotid artery). There were two superficial stab wounds on the right side of her chin. A vacuum cleaner cord was wrapped once around her neck, but there were no signs of strangulation. She died as a result of multiple stab wounds.

¶ 6 An empty envelope was discovered next to a recliner. This envelope had contained the proceeds from Littlecook's monthly checks, which he received at the first of each month. One person described the amount in the envelope as a "large wad." Only $280.00 was recovered in the house. This money was hidden in a dresser drawer.

¶ 7 Testimony about the events leading up to their deaths revealed that the couple had cashed checks totaling about $1,400.00 on July 1st. They paid out just over $600.00 for rent and bills on that first weekend in July. Primeaux knew that the victims received checks on the first of the month.

¶ 8 Frank Kowalski delivered meals to Littlecook and Bear around noon on July 5. He didn't see Littlecook or Bear, but Littlecook said okay when Kowalski said, "here are your meals."

¶ 9 The morning of July 5th, Primeaux left his house with about $15.00 so he could get a new tire for his bike. He told several people that he didn't have much money. However, he did buy some quart bottles of beer that morning, after he couldn't find a tire. He joined friends who were also drinking beer. One of them saw him with a knife, carving on the picnic table. He then went to a bar where he got angry because his "friend" would not let him drink any more of the beer the friend purchased.

¶ 10 Later that evening, Primeaux arrived home and said that he stabbed a man and a woman. He said that he "tore a couple up real good." Primeaux and his family gathered his bloody clothes in a trash bag and took the bag to Kaw Lake where they attempted to burn the clothes. Primeaux gave a knife to Billy Roberson, his stepson, who threw the knife in the lake. They stopped at two stores on the way to the lake and bought beer, cigarettes and some gas to burn the clothes. Primeaux provided the money for these items. Later, partially burned tennis shoes and beer bottles were found at the lake where officers were told the clothes were burned.

¶ 11 One witness testified that Primeaux came by her convenience store that afternoon and bought some beer; although, he usually paid for the beer in exact change, this time he used a bloody twenty-dollar bill. She also testified that Primeaux bought a larger amount of beer than he usually bought (six quarts of Busch Beer at 3:30 p.m.) Primeaux returned twice more and bought nine more quarts of beer.

¶ 12 Primeaux testified that Randy Davis stabbed Littlecook because Littlecook refused to give him beer. Police questioned Randy Davis, he claimed to have knowledge of the crime, and he knew things about the crime scene, which proved to be true. However, his story did not match the way the murders were committed. He was initially charged conjointly with Primeaux, and bound over for trial, but charges against him were later dropped.

¶ 13 Primeaux raises twelve propositions of error in his appeal. These propositions will be addressed as they arose during the prosecution of this case.

II. PRETRIAL ISSUES

A.

¶ 14 In proposition eight, Primeaux argues that the United States Supreme Court decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) requires that the aggravating circumstances be charged by Information or Indictment and that they be proven at preliminary hearing. In Ring, the United States Supreme Court held that a capital jury must make any factual finding bearing on capital punishment beyond a reasonable doubt. Ring, 122 S.Ct. at 2439-40.

¶ 15 Primeaux bases this argument on some of the reasoning found in Ring that refers to aggravating circumstances as the "functional equivalents" of elements of the offense. As such, Primeaux argues that the United States Constitution and the Oklahoma Constitution require that the aggravating circumstances be charged by Information or Indictment and that the aggravating circumstances be presented before an examining magistrate at preliminary hearing. Otherwise, the District Court does not have jurisdiction over the case.

¶ 16 The decision in Ring is not as broad as Primeaux argues. The appellant in Ring did not specifically raise a claim that the indictment was constitutionally infirm. Ring, 122 S.Ct. at 2437 n. 4. Ring does not change the procedure in Oklahoma. Notice of the aggravating circumstances was provided in the bill of particulars. This document gives notice that the State intends to seek the penalty of death. The aggravating circumstances were presented to the jury and the jury was required to find that the aggravating circumstances existed beyond a reasonable doubt. This is all that is required by law. Johnson v. State, 1982 OK CR 37, ¶ 10, 665 P.2d 815, 819.

B.

¶ 17 In proposition five, Primeaux claims that the evidence presented at the preliminary hearing was insufficient to hold him over for trial for the two counts of First Degree Felony Murder. He does not contest the evidence supporting Malice Murder. He claims that there was no admissible evidence to show that Primeaux robbed or attempted to rob either Littlecook or Bear.

¶ 18 Primeaux's only attempt to preserve this issue for appeal was his general demurrer to the evidence at the end of the preliminary hearing. He made no formal motion to quash prior to entering a plea at the formal arraignment.

We have previously held that waiver is effected by failure to file a motion to quash prior to entering a plea. Even had his assignment been properly preserved it would fail on its merit. There is sufficient evidence from which reasonable cause that a crime was committed and that appellant committed it could be found by the magistrate.

Koonce v. State, 1985 OK CR 26, ¶ 7, 696 P.2d 501, 504, overruled on other grounds in Landtroop v. State, 1988 OK CR 90, 753 P.2d 1371 [citations omitted]. Primeaux's main argument is that the trial court relied on statements made by Randy Davis, which were later ruled...