Richie v. State

• Decision Date: 07 November 1995
• Docket Number: No. F-93-1095,F-93-1095
• Citation: 908 P.2d 268,1995 OK CR 67
• Parties: Lonnie Wright RICHIE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 268

908 P.2d 268

Lonnie Wright RICHIE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-93-1095.

Court of Criminal Appeals of Oklahoma.

Nov. 7, 1995.

Rehearing Denied Jan. 17, 1996.

An Appeal from the District Court of Tulsa County; B.R. Beasley, District Judge.

Tom Gillert, Assistant District Attorney, Tulsa, for State.

Melody Brannon, Ron Evans, Oklahoma Indigent Defense System, Capital Trial Division, Norman, for defendant.

Cindy G. Brown, Norman, for appellant.

Susan Brimer Loving, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, for appellee.

OPINION

JOHNSON, Presiding Judge:

STATEMENT OF THE CASE

Appellant, Lonnie Wright Richie, was tried by jury for the crimes of: Kidnapping for Extortion (Count I) in violation of 21 O.S.1991, § 745; Robbery with Firearm (Count II) in violation of 21 O.S.1991, § 801; Murder in the First Degree (malice aforethought and, alternatively, felony murder) (Count III) in violation of 21 O.S.1991, § 701.7; Unauthorized Use of a Debit Card (Count IV) in violation of 21 O.S.1991, § 1550.29; and Larceny of an Automobile (Count V) in violation of 21 O.S.1991, § 1720; after former conviction of two or more felonies, in Case No. CF-91-3676, in the District Court of Tulsa County before the Honorable B.R. Beasley, District Judge. Appellant was represented by counsel. The jury returned a verdict of guilty on all counts and set punishment at 99 years imprisonment for Count I, 60 years for Count II, death for Count III, 20 years for Count IV, and 30 years for Count V. The trial court sentenced appellant in accordance with the jury's verdict. From this Judgment and Sentence, appellant has perfected his appeal.

SUMMARY OF FACTS

On August 28, 1991, Mrs. Laura Launhardt was abducted from a K-Mart store in Tulsa, Oklahoma. In the afternoon hours of the same day, Clyde Huffines, an oilfield pumper, was checking leases near Mannford, Oklahoma, when he noticed a van on one of those leases and three people in the area near the van. Huffines also noticed one of the two men standing on the passenger side of the van. Huffines saw this man place something behind the car seat. Then one of the men walked to the driver's door of the van and reached for something behind the seat and placed it in his back pocket or the waistband of his pants. That man then approached Huffines and stated that they had "come up here to relieve ourselves."

Huffines also noticed a woman standing in short weeds approximately 35 feet from him. The woman came up to Huffines and said that he had interrupted her from relieving herself and Huffines told her to "go ahead." The woman then said something to Huffines in a much softer voice which he was unable to understand. She then repeated the statement, but Huffines was again unable to understand her. The woman turned and walked away from Huffines. Huffines subsequently identified the man he had spoken to as the defendant and the woman as Mrs. Launhardt.

Appellant and his accomplice then took Mrs. Launhardt to an abandoned, storm-damaged house near Keystone Lake which was in close proximity to the above-mentioned oil lease. Once inside the abandoned house, appellant and his accomplice bound Mrs. Launhardt's wrists and ankles then tied a strap around her neck and attached it to a clothes rod in a walk-in closet. Appellant and his accomplice then strangled Mrs. Launhardt by partially suspending her by the ligature around her neck while she lay in a face-down position.

After killing Mrs. Launhardt, appellant then engaged in a series of transactions utilizing her ATM card and other credit cards he had stolen from her. Appellant also took her Chevy Astro van.

On September 1, 1991, Mrs. Launhardt's body was discovered in the abandoned house by police. The medical examiner ruled the cause of death as asphyxiation by ligature and placed the time of death as approximately 72 hours before the discovery of the body.

Appellant was later apprehended in New Orleans, Louisiana, where Launhardt's van was also found. Ammunition of the type compatible with the handgun belonging to appellant was found in the glove box of the van. Appellant's handgun was located at a pawn shop. During the course of the investigation, it was discovered that appellant had once lived in a trailer house very near to the abandoned house where Mrs. Launhardt's body was found.

Additional facts will be discussed as pertinent to the propositions outlined below.

JURY SELECTION ISSUES

In propositions nine and ten, appellant asserts that the trial court abused its discretion when it failed to excuse for cause three prospective jurors. Appellant goes on to complain that he was forced to use peremptory challenges to remove each of these veniremen.

The decision of whether or not to excuse a juror rests in the sound discretion of the trial court and, absent an abuse of that discretion, there is no error. Lewis v. State, 586 P.2d 81, 82 (Okl.Cr.1978). In addition, where there is a question about a prospective juror's ability to follow the law, counsel or the trial court may rehabilitate a potential juror by asking questions and receiving answers from them which indicate that he or she is capable of following the law as instructed by the court. See Hale v. State, 750 P.2d 130, 139 (Okl.Cr.), cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988).

Upon review of the record below, we find that each of the three jurors in question was properly rehabilitated. The trial court did not abuse its discretion in refusing to excuse prospective jurors Penix, Wooten and Hoefling for cause as their answers to questions posed by counsel and the court reflected their ability to be fair and impartial and to follow the law as instructed by the court. Accordingly, appellant's ninth and tenth propositions of error must fail.

FIRST STAGE ISSUES AND INSTRUCTIONS

In his first proposition of error, appellant contends that he cannot be forced, over his objections, to defend against charges brought in any county in Oklahoma except those counties where the State has properly established venue. Appellant further submits the State failed to prove venue for the first degree murder was proper in Tulsa County, when the evidence, the prosecutor and the trial court all agreed the homicide occurred in Pawnee County. We find this proposition must be denied.

The Oklahoma Bill of Rights imposes a constitutional requirement that all crimes in Oklahoma must be prosecuted in the county where the crime was committed, unless there is some uncertainty about where the offense actually occurred. Okl. Const. art. II, § 20. Even when there is some uncertainty, the State must come forward with enough evidence to show the crime might have been committed in the county where the defendant is being tried. Id. Appellant argues that venue for murder cannot be bootstrapped by joining the murder charge with another charge for which venue is proper. Venue for each offense in a multi-count Information must be established under the venue statutes and state constitution to lie in the county where the case is tried.

Under the facts of the instant case, where the victim is kidnapped in one county and subsequently murdered in another county, we find that venue is proper in both of the counties. See Shelton v. State, 793 P.2d 866, 871 (Okl.Cr.1990). In reaching a decision, the Shelton Court relied upon 22 O.S.1981, § 124 as authority. Title 22 O.S.1991, § 124 provides:

When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof, constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.

In the instant case, the murder offense was preceded by the offense of kidnapping. We find the murder can neither be considered in isolation, nor as factually distinct from the antecedent kidnapping. The prosecution of appellant in Tulsa County for kidnapping and murder was not barred merely because the murder may have occurred in Pawnee County. "When a crime is committed in more than one county, as it was here, venue is proper in either county at the State's discretion." Hawkins v. State, 891 P.2d 586, 593 (Okl.Cr.1994). Finding no error, this proposition fails.

In his second proposition of error, appellant asserts that reversible error occurred as a result of the trial court's refusal to give his requested jury instructions regarding venue. It is well established in this jurisdiction that venue is a question of law. It is likewise well established that questions of law are for the court's consideration while questions of fact involving the guilt or innocence of the accused are the exclusive domain of the jury. See Kovash v. State, 519 P.2d 517, 522 (Okl.Cr.), cert. denied, 419 U.S. 830, 95 S.Ct. 52, 42 L.Ed.2d 55 (1974). Furthermore, appellant has failed to provide citation to relevant authority of this jurisdiction in support of his proposition. Accordingly, this proposition of error fails.

In his third proposition of error, appellant contends that reversible error occurred when the jury was permitted to convict him of felony murder without ever being instructed concerning the elements of the crime charged, i.e., kidnapping. The State concedes the fact that the jury was not instructed on the correct underlying felony as to the felony murder charge. The State further submits that appellant was convicted of a crime other than that with which he was charged.

The Information failed to allege sufficient facts for kidnapping under the felony murder charge. "[A]n information charging a defendant with felony murder must recite facts to allege every element of the First Degree Murder statute, 21 O.S.1991, § 701.7(B), including facts to allege every element of the underlying felony." Allen v. State, 874 P.2d 60, 65 (Okl.Cr.1994). Therefore, the trial court lacked jurisdiction to try appellant for First Degree Felony Murder based...