Scott v. State

• Decision Date: 14 February 1995
• Docket Number: No. F-90-1195,F-90-1195
• Citation: 891 P.2d 1283
• Parties: Sidney Soren SCOTT, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1283

891 P.2d 1283

Sidney Soren SCOTT, Appellant, v. STATE of Oklahoma, Appellee.

No. F-90-1195.

Court of Criminal Appeals of Oklahoma.

Feb. 14, 1995.

Rehearing Denied April 13, 1995.

Larry Allen, Gene F. Mowery, Checotah (at trial) and Carol W. Walker, Asst. Appellate Indigent Defender, Norman (on appeal), for appellant.

Tom Giulioli, Dist. Atty., O.R. Barris, III, Asst. Dist. Atty., Office of the Dist. Atty., Eufaula (at trial), and Susan Brimer Loving, Atty. Gen. of Oklahoma and A. Diane Blalock, Asst. Atty. Gen., Oklahoma City (on appeal), for appellee.

OPINION

STRUBHAR, Judge:

Appellant, Sidney Soren Scott, was tried by jury in the District Court of McIntosh County, Case No. F-90-34, before the Honorable J.M. LeMasters, Jr., Associate District Judge. Appellant was convicted of Murder in the First Degree (21 O.S.Supp.1989, § 701.7(A)). The jury found two (2) aggravating circumstances and recommended the death penalty.

On February 15, 1990, Appellant and several friends¹ drove from Quinton to the Brooken Cove motel where Dean Monks was staying. The group had at least two cases of beer, tequila, and whiskey. They arrived at the motel after dark and began to drink. During the evening Seymour and Dean Monks walked across the motel parking lot to a beer bar to play pool. They were joined shortly by the others. Jack McDonald, the owner, and Henry Mattocks, decedent, were also in the bar. Decedent, who was over sixty years old, mingled with the group. As he often did, decedent bought beers and pool games for the group. While in the bar Appellant confided to Rinker, his nephew, that he needed about one hundred fifty dollars ($150.00) to pay a citation he received earlier that week. He also indicated decedent was carrying money and that he "was going to do what he had to to get it." When McDonald closed the bar around 11:00 p.m. the group went back to Monks' room. Decedent joined McDonald in his trailer home, located beside the bar, to discuss some business.

Preparing to leave, decedent discovered he had a flat tire. He knocked on the door to Monks' room to see if anyone in the group could help him change the tire. Boggs, Seymour, Edwin Monks and Dean Monks agreed to help him. Decedent returned to McDonald's trailer to get change for a ten dollar bill so he could give the men five dollars for helping him. According to McDonald decedent had eleven dollars on him at this time. McDonald began watching decedent from a window to make sure he was alright.

After his tire was changed, decedent joined the party for a short time. McDonald walked to Monks' room to check on decedent. He stayed a few minutes and returned to his trailer. Later, several people saw Appellant take possession of a lock blade knife which he had misplaced earlier. Appellant then got into a fight with Bishop and announced he was leaving. He said decedent was giving him a ride home. McDonald saw a man who could have been Appellant get into decedent's truck with him. The two drove north away from the motel. A short time later the others returned to Stigler.

Decedent was found early the next morning a few miles north of the motel. His throat was cut and he had bled to death. He was lying off the road partially in the ditch. There were signs of a struggle and his wallet was missing. The checkbook, where he carried his cash, was found empty at the murder scene. Decedent's truck was found a few miles east of the murder scene. A rag was stuck in the gas tank and the front half of the truck, including the cab, had been burned. Between 6:30 and 7:00 a.m. LaDonna Ford and Bobby Gray saw Appellant on their way to work. He was walking south on the road to Quinton.

After noon on February 16, 1990, Appellant rejoined the group from the previous evening's party. He first told Rinker in private and then announced to the group that he had killed the "old man" for eleven dollars. Describing the murder Appellant said he first struggled with decedent then cut him "from ear to ear" and left him "flopping" in a ditch gasping for breath. Then he took decedent's wallet and drove his truck a few miles east where he burned it by sticking a rag in the gas tank before walking home. Appellant also stated he became sexually aroused when killing decedent. Appellant displayed the knife which had been returned to him the previous night and declared it was the murder weapon. He asked the others to dispose of it and to lie that he had been with them the entire night after the party. He then disappeared for a couple of days.

At Appellant's request Edwin Monks threw the knife into a strip mine pond where it was later recovered by police. The first time police spoke with the individuals from the party they all said Appellant had been with them the entire night. Later each one began to tell the police more of what happened. They eventually recounted nearly identical stories of both the events of the 15th and Appellant's statements on the 16th. Boggs, Seymour, Rinker, Edwin Monks, Bishop, Cooper, Ford, and Gray testified for the State at trial.

ISSUES RELATING TO JURY SELECTION

In his third proposition of error Appellant argues he was sentenced by a jury predisposed to impose the death sentence. He contends the trial court erred in its individual voir dire of venire members, excusing of four prospective jurors and refusal to allow defense counsel an opportunity to rehabilitate them. After general voir dire and the acceptance of the jurors for cause, but before either side exercised peremptory challenges, the trial court conducted individual voir dire of the jurors on whether they could impose the death penalty. He asked each prospective juror substantially the same question:

Mr. Scott the defendant in this case, is charged as I have said with Murder in the First Degree. If you find him guilty of First Degree Murder, then you will have the duty to assess punishment in this case. The punishment for First Degree Murder is either death, or life imprisonment without parole, or life imprisonment; it will be up to the jury to assess and impose the punishment. In a case where the law and evidence warrant, in a proper case, could you, without doing violence to your conscience, agree to a verdict imposing the death penalty?²

Jurors Welch, McGechie, Combs, and Collins did not affirmatively respond to this question.³ Thereupon the trial court asked them each a follow up question to determine whether they could lay aside their feelings and apply the law as required by their duty as jurors.

Court: Let me ask you this, Ms. Welch, if you found beyond a reasonable doubt that the defendant is guilty of Murder in the First Degree and if under the evidence, facts and circumstances of the case, the law would permit you to consider a sentence of death; are your reservations about the death penalty so strong that regardless of the law, the facts and the circumstances of the case, you would not impose the death penalty?

Juror Welch: I don't know. I just really don't know.

Court: Well, only you can answer that, Ms. Welch; We can't answer that for you.

Juror Welch: I don't believe I could.

Court: Let me ask you the second question, if you found beyond a reasonable doubt that the defendant was guilty of Murder in the First Degree and if under the evidence, the facts and circumstances of the case, the law would permit you to consider a sentence of death; are your reservations about the death penalty so strong, that regardless of the law, facts and circumstances of the case, you would not impose the death penalty?

Juror McGechie: Sir, I couldn't make that decision about somebody else's life. I just couldn't.

Court: Alright. Let me ask you, Mr. Combs; if you found beyond a reasonable doubt that the defendant was guilty of Murder in the First Degree and if under the evidence, facts and circumstances of the case, the law would permit you to consider a sentence of death; are your reservations about the death penalty so strong, that regardless of the law, facts and circumstances of the case, you would not impose the death penalty?

Juror Combs: No, I don't guess I--if I serve on it I will turn in my best knowledge of what it should be. If that answers the question.

Court: Alright. Let me ask you; if you found beyond a reasonable doubt that the defendant was guilty of Murder in the First Degree and if under the evidence, facts and circumstances of the case, the law would permit you to consider a sentence of death; are your reservations about the death penalty so strong, that regardless of the law, the facts and circumstances of the case, you would not impose the death penalty?

Juror Collins: I don't really know; I just don't know if I could or not.

This Court recently addressed the manner in which trial courts conduct death qualifying voir dire in Mayes v. State, 887 P.2d 1288 (Okl.Cr.1994). In Mayes this Court held inquiries whether imposition of the death penalty would do violence to a juror's conscience are at best confusing and error. Id. at 1297. However, the error can be cured by follow up questions which properly assess the potential juror's ability to set aside personal feelings and follow the law. Id. This Court held that the follow up question asked by the trial court in Mayes, in language virtually identical to that in the present case, cured the error.⁴ Accordingly any error was cured. See Salazar v. State, 852 P.2d 729, 732 (Okl.Cr.1993), reh'g denied, 859 P.2d 517 (Okl.Cr.1993); See also Stiles v. State, 829 P.2d 984, 988 (Okl.Cr.1992) (holding "violence to your conscience" an acceptable phrasing).

Appellant next argues the trial court abused its discretion in excusing for cause the four prospective jurors because they gave equivocal answers to the follow up questions. Removal for cause of even one venire member who has conscientious scruples against the death penalty but is nevertheless able to set aside those scruples and consider the penalty of death and is therefore eligible to...