Robedeaux v. State

• Decision Date: 20 December 1993
• Docket Number: No. F-86-463,F-86-463
• Parties: James Glenn ROBEDEAUX, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 417

866 P.2d 417

James Glenn ROBEDEAUX, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-463.

Court of Criminal Appeals of Oklahoma.

Dec. 20, 1993.

Rehearing Denied Feb. 10, 1994.

An Appeal from the District Court of Oklahoma County; Raymond Naifeh, District Judge.

James Glenn Robedeaux, was tried by jury and convicted for the crime of Murder in the First Degree (21 O.S.Supp.1982, § 701.7), Case No. CRF-85-6362, in the District Court of Oklahoma County. The jury found the existence of three (3) aggravating circumstances and recommended the death penalty and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. AFFIRMED.

Opio Toure, Cindy Foley, Asst. Public Defenders, Oklahoma City, Trial Counsel, and Pete Gelvin, Asst. Public Defender, Oklahoma City, Appellate Counsel, for appellant.

Robert Macy, Dist. Atty., Tom Colbert, Asst. Dist. Atty., Oklahoma City, Trial Counsel, and Susan Brimer Loving, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, Appellate Counsel, for appellee.

OPINION

LUMPKIN, Presiding Judge:

Appellant, James Glenn Robedeaux, was tried by jury and convicted of the crime of Murder in the First Degree (21 O.S.Supp.1982, § 701.7), Case No. CRF-85-6362 in the District Court of Oklahoma County. The jury recommended the death penalty and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

Appellant was found guilty of the first degree murder of Nancy McKinney. The decedent was last seen alive on September 22, 1985, at the apartment she shared with Appellant. In late December 1985, and early February 1986, various body parts, identified as having come from the decedent, were found in Logan County. Further facts will be presented as necessary.

PRE-TRIAL ISSUES

In his first assignment of error, Appellant alleges the trial court erred by overruling his demurrer to the information. Appellant specifically claims the information failed to describe the commission of an imminently dangerous act and failed to detail precise facts that underlie the crime charged. The amended information used at trial provided in pertinent part:

[T]he crime of murder in the first degree was feloniously committed in Oklahoma County, Oklahoma, by James Glenn Robedeaux who wilfully, unlawfully and with malice aforethought, killed Nancy Rose Lee McKinney by beating and cutting her with an unknown object, inflicting mortal wounds which caused her death ... contrary to the provisions of section 701.7 of Title 21 of the Oklahoma statutes ... (O.R. 135).

It is well settled that when a defendant pleads to an information and proceeds to trial, he waives his right to attack the sufficiency of the information on appeal. Davis v. State, 792 P.2d 76, 80 (Okl.Cr.1990). Appellant entered his plea at a formal arraignment on March 4, 1986. He subsequently filed a demurrer to the information on April 15, 1986. The trial court overruled Appellant's demurrer the next day. Because Appellant did not file a timely objection to preserve alleged errors for appellate review, we limit our inquiry to ensuring no defects exist which go to the jurisdiction of the trial court, as such errors may not be waived. Harjo v. State, 797 P.2d 338, 342 (Okl.Cr.1990).

In Miller v. State, 827 P.2d 875 (Okl.Cr.1992), the majority of this Court stated that the test used to determine the sufficiency of an information in conferring jurisdiction on the trial court is whether: (1) it contains every element of the offense to be charged and (2) it sufficiently apprises the defendant of what he must be prepared to meet. See also Lamb v. State, 626 P.2d 1355, 1356 (Okl.Cr.1981). The elements of first degree murder are: (1) the death of a human (2) which is unlawful (3) committed by the defendant (4) with malice aforethought. See 21 O.S.Supp.1982, § 701.7. Although the information in this case was amended three (3) times for the purpose of making minor changes, the information from the very start sufficiently contained the elements required by Miller.

As to the second part of the Miller test, we note the information advised Appellant that he was charged with the murder of a woman who was beaten and dismembered. Appellant complains that the information should have provided more details of the crime, such as the object used to commit the offense, and its actual location. As the majority stated in Miller, however, the test of sufficiency does not focus on whether the information could have been made more certain. 827 P.2d at 879. We examine the information for practical, rather than technical considerations, as hairsplitting is to be avoided. Davis, 792 P.2d at 81. Accordingly, we find that Appellant was properly placed on notice of the relevant criminal offense and the circumstances surrounding its commission. He has failed to show how the omission of additional facts in the information prejudiced his defense. This assignment of error is therefore denied.

JURY SELECTION ISSUES

In his second assignment of error, Appellant contends that he was denied a fair trial because the jury selection process systematically excluded persons over the age of 70 and racial minorities, thus resulting in a jury not composed of a cross-section of the community. Appellant argues that persons over the age of 70 are less likely to impose the death penalty due to their advanced age and greater appreciation of death.

In Moore v. State, 736 P.2d 161, 165 (Okl.Cr.), cert. denied 484 U.S. 873, 108 S.Ct 212, 98 L.Ed.2d 163 (1987), we stated that Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), held that a defendant must establish a prima facie case in order to show he was denied a jury drawn from a fair-cross section of the community. Appellant has failed to make such a prima facie showing in the instant case, as he has not shown that this exemption from jury service excludes a sufficiently numerous and distinct group, that representation of this group in venires is not fair and reasonable in relation to the number of such people in the community, and that this underrepresentation is due to the systematic exclusion of the group in the jury selection process. See Romano v. State, 847 P.2d 368, 376 (Okl.Cr.1993); Sellers v. State, 809 P.2d 676, 682 (Okl.Cr.1991); Fox v. State, 779 P.2d 562, 566 (Okl.Cr.1989).

Appellant also argues the jury selection process at the time should have been changed to raise minority representation on venires, hence increasing the likelihood the defendant will have a person of his own race on the jury. Although Appellant, as an American Indian, discusses racial minorities in general terms, he asserts that he was deprived of a jury with an individual of his own race. He further argues that the system of selecting jurors from the voter registration lists should have been replaced by the system now used in which jurors are chosen from lists of persons holding driver's licenses.

Appellant's argument must fail for several reasons. In Fox v. State, 779 P.2d at 566 we stated:

When a defendant asserts this form of denial of equal protection, he must show that the procedures used to call his jury "resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or applied". (citation omitted).

Appellant's evidence before trial predominantly focused on the underrepresentation of American Indians in juries, but Appellant did not prove that they, or any minorities, are singled out for different treatment under state law. Therefore, he has failed to reach the first step in establishing systematic exclusion of this group.

Further, the previous system of randomly choosing a jury pool from lists of registered voters did not include race as a criteria for selection. In Fox, we recognized that the system of drawing names of registered voters, if carried out according to state law, was racially neutral and not susceptible to abuse. 779 P.2d at 566. Appellant has not demonstrated how the procedure used in his case was unfair or unreasonable. Accordingly, we find that Appellant was not denied a fair trial as the jury selection process in effect at the time of his trial met the fair cross section requirement of the Sixth Amendment.

In his third assignment of error, Appellant argues the trial court erred in denying his request to poll the jury panel for each person's age and race in order to collect evidence to support his motion to quash the panel. The introduction or refusal of evidence is a matter for the exercise of discretion by the trial court, whose decision will not be disturbed except for an abuse of discretion. Haury v. State, 533 P.2d 991, 995 (Okl.Cr.1975). We find no abuse of discretion in the present case.

Appellant was permitted to present documentary evidence and testimony to support his motion to quash. A polling of the 292 people who showed up for the jury panel on June 23, 1986, would only show the representation on that particular day. Further, a polling would not have advanced Appellant's position in meeting the test described in Moore v. State, 736 P.2d at 165. For the reasons set forth above, this proposition of error is denied.

In his fourth assignment of error, Appellant contends the court committed reversible error by denying his request to poll the veniremen selected for his jury to determine whether anyone had seen Appellant in handcuffs before he was brought to the courtroom. Appellant alleges several persons on the jury panel saw him in handcuffs in the doorway of the jail elevator, thus violating 22 O.S.1981, § 15, which requires in part that no defendant be tried before a jury in chain or shackles.

We have previously held that Section 15 is not violated when the defendant is viewed by jurors for a brief moment while...