Robinson v. State

Decision Date11 May 1995
Docket NumberNo. F-90-670,F-90-670
Citation900 P.2d 389,1995 OK CR 25
PartiesWalanzo Deon ROBINSON, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

WALANZO DEON ROBINSON, Appellant, was tried by jury and convicted of the crime of First Degree Murder in violation of 21 O.S.1981, § 701.7, Case No. CRF-89-4791 in the District Court of Oklahoma County before the Honorable Bana Blasdel, District Judge. The jury recommended the Appellant be sentenced to death, finding that Appellant's murder of victim Dennis Hill was especially heinous, atrocious or cruel, and the trial court sentenced accordingly. The Judgment and Sentence of the trial court is AFFIRMED.

Chris Box, Oklahoma City, for appellant at trial.

Robert H. Macy, Gary Ackley, Dist. Atty., Oklahoma City, for state at trial.

Carol A. Walker, Asst. Appellate Indigent Defender, Norman, for appellant on appeal.

Susan B. Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for appellee on appeal.

OPINION

LANE, Judge:

Appellant, Walanzo Deon Robinson, was tried by jury and convicted of the crime of First Degree Murder in violation of 21 O.S.1981, § 701.7, Case No. CRF-89-4791 in the District Court of Oklahoma County, before the Honorable Bana Blasdel, District Judge. The jury recommended the Appellant be sentenced to death, finding that Appellant's murder of victim Dennis Hill was especially heinous, atrocious or cruel. The trial court sentenced accordingly. On appeal, Appellant raises seven propositions of error. We affirm the judgment and sentence of the trial court.

In the early morning hours of May 19, 1989, Dennis Eugene Hill was shot and killed on a street in northeast Oklahoma City. He was twenty-six (26) years old and sold crack cocaine for a living. The shooting took place in the vicinity of a popular bar and area known for drug trafficking, so there were many people present at the shooting, even though it took place between 1:30 and 2:00 a.m.

Earlier that evening, Hill and a man identified as "Bandit" argued with each other over either money, drug turf or both. According to eyewitness testimony, Bandit had a gun during that confrontation. The final confrontation between the two men was preceded by an argument over which of the two would get the other "busted". As the argument ended, Bandit fired a warning shot into the ground and Hill turned and ran. Hill was shot twice in the back, falling forward into the street. Bandit walked over to Hill and shot him twice more, once in the shoulder and once in the chest, while Hill asked why Bandit was shooting him.

Testimony placed Bandit at the scene, identified by no fewer than four witnesses. He was identified by name, clothing, and physical description. Although there were some inconsistencies in the clothing descriptions, Appellant was positively identified as "Bandit" and as the person who shot Hill. Appellant fled to California where he was arrested on September 7, 1989, on an outstanding Oklahoma City murder warrant. Additional facts will be discussed as they become relevant to Appellant's propositions of error.

Appellant first alleges there was insufficient evidence to support his conviction. He claims that while several eye witnesses testified as to the events of the shooting, the testimony on the whole was insufficient to identify him as the killer. Both the State and Appellant agree that the test for determining the sufficiency of evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Drew v. State, 771 P.2d 224, 227 (Okl.Cr.1989); Riley v. State, 760 P.2d 198, 199-200 (Okl.Cr.1988); Gerrard v. State, 731 P.2d 990, 992 (Okl.Cr.1987). After reviewing the testimony and evidence in this case, we find the evidence sufficient to support Appellant's conviction.

Testimony from numerous witnesses revealed some inconsistencies. However, on the whole, the story reported by all of the witnesses was remarkably similar. Hill and a man named Bandit argued over drugs and/or money, the second such argument of the day; Bandit took out a gun and shot Hill as he was running away; Bandit followed Hill and shot him twice more as he lay on the ground; Bandit left the scene; Hill died from the gunshot wounds. Appellant was identified as the shooter by two witnesses, and a third corroborated their recitation of events, although he was unable to identify Appellant as the shooter. Two other witnesses testified they knew Appellant as "Bandit" and had rented him their house which he used as a cocaine selling base. Appellant made incriminating statements to no fewer than three witnesses, and admitted to the arresting officer in California that he had been in Oklahoma to sell cocaine when the shooting occurred. Appellant also volunteered to the arresting officer, after being told only that he was wanted for murder in Oklahoma, that he was armed during the trip to Oklahoma but "... didn't have the .38, he had the .45." (Hill had been shot with a .38, but only the police, the medical examiner and the murderer had that information.)

Appellant fled to California, and asked the testifying witness who accompanied him, whether he, Appellant, could be extradited to Oklahoma from California. (Appellant had two guns in his possession upon his arrest, neither of which was the murder weapon.) He admitted to being a gang member, and that he sold drugs, as well as being the victim of no fewer than five (5) drive by shootings. Additionally, the physical evidence recovered from the scene and the condition of the victim's body corroborated the testimony given by the witnesses.

All of the witnesses, excepting the police officers, the medical examiner and Hill's brother, were former convicted felons, most with four or more priors. Most were also drug and/or alcohol users. Appellant's true complaint with respect to the sufficiency of the evidence is his assessment that the witnesses who testified were simply not credible, and therefore should not have been believed. Appellant attacked each witness' credibility during cross-examination, revealing their rather unsavory pasts, and the fact that most, if not all, were drug and alcohol users, and probably had used drug and/or alcohol on the day of the shooting.

We have previously stated that any determination as to the credibility of a witness lies solely in the province of the jury. Hollan v. State, 676 P.2d 861 (Okl.Cr.1984); Dodson v. State, 674 P.2d 57 (Okl.Cr.1984); Renfro v. State, 607 P.2d 703 (Okl.Cr.1980). The task of resolving this conflict (weight and credibility of a witness' testimony) is not an appellate task. The job is properly vested with the jury which is the exclusive judge of the weight of the evidence and the credibility of the witnesses. Scott v. State, 808 P.2d 73, 76 (Okl.Cr.1991); Raymond v. State, 717 P.2d 1147 (Okl.Cr.1986). This Court accepts all reasonable inferences and credibility choices that tend to support the trier of fact's verdict, Probst v. State, 807 P.2d 279, 283 (Okl.Cr.1991); Washington v. State, 729 P.2d 509, 510 (Okl.Cr.1986), and we find the evidence here to be more than sufficient to sustain Appellant's conviction.

At Proposition II, Appellant alleges he was deprived of a fair trial and sentencing proceeding, citing alleged improper prosecutorial tactics, remarks and arguments. An overview is necessary here. Appellant's arguments espoused here all refer to remarks made during trial, not one of which was objected to by defense counsel. As we noted in Jones v. State, 764 P.2d 914, 917 (Okl.Cr.1988):

The general rule of this Court is that when the prosecutor makes an objectionable statement, it is incumbent upon defense counsel to call the statement to the attention of the trial court by making a timely objection. Reid v. State, 733 P.2d 1355 (Okl.Cr.1987.) Failure to make such an objection waives all but fundamental error on appeal. VanWoundenberg v. State, 720 P.2d 328 (Okl.Cr.1986) cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986).

See also, Fox v. City of Tulsa, 806 P.2d 79, 80 (Okl.Cr.1991); Shelton v. State, 793 P.2d 866, 871 (Okl.Cr.1990); Thomason v. State, 763 P.2d 1182 (Okl.Cr.1988); Smith v. State, 737 P.2d 1206 (Okl.Cr.1987) cert. denied, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987); Plunkett v. State, 719 P.2d 834 (Okl.Cr.1986), cert. denied, 479 U.S. 1019, 107 S.Ct. 675, 93 L.Ed.2d 725 (1986); Tucker v. State, 620 P.2d 1314 (Okl.Cr.1980). As such, Appellant has waived all but plain error review with respect to the alleged improper statements, comments, arguments, and/or questions.

Appellant alleges error during both the first and second stage of trial, and his argument will be addressed accordingly. Prior to trial, Appellant filed a motion in limine requesting that any testimony concerning Appellant's gang involvement be forbidden, as there was no indication that the murder was a direct result of gang activity. The motion was granted and the prosecution instructed to admonish its witnesses.

During his examination of witness Rodney Carolina, Mr. Ackley, the prosecutor, asked Carolina what Bandit and Hill had been arguing about. The reply was as follows:

Carolina: When I was approaching them, they was arguing about that he's not a--about the Blood and the Cuz. They was having a conversation about one wasn't a Blood and the other wasn't no Cuz, and more or less a racial, Cripple--however they--Crips conversation.

Court: Could we approach the bench?

Ackley admitted he had failed to admonish the witness, stating the witness was not responsive to his question, and was not expected to give testimony concerning gang activity. At the court's instruction, Carolina was admonished, and the questioning continued, with no...

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