Sellers v. State

Decision Date05 April 1991
Docket NumberNo. F-86-731,F-86-731
PartiesSean Richard SELLERS, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Sean Richard Sellers, Appellant, was convicted in the District Court of Oklahoma County, Case Nos. CRF-86-1231 and CRF-86-1232, of three counts of Murder in the First Degree. The jury recommended a sentence of death for each, and the District Court entered judgments and sentences accordingly. He now comes before this Court on direct appeal. The jury's findings Lee Ann Jones Peters, Oklahoma County Public Defender's Office, Oklahoma City, for appellant.

of guilt and the sentences of death are AFFIRMED.

Robert H. Henry, Atty. Gen., M. Caroline Emerson, Diane Hammons, Asst. Attys. Gen., Oklahoma City, for appellee.

OPINION

JOHNSON, Judge:

Appellant, Sean Richard Sellers, was convicted in the District Court of Oklahoma County, Case Nos. CRF-86-1231 and CRF-86-1232, of three charges of Murder in the First Degree. The jury recommended a sentence of death for each, and the District Court entered judgments and sentences accordingly. The case comes before this Court on direct appeal.

STATEMENT OF FACTS

The record reveals that on September 8, 1985, a clerk at a convenience store in Oklahoma City was found shot to death. At trial, the State presented the testimony of Richard Howard, who claimed that he had been with appellant on September 8, 1985, and had observed appellant shoot the clerk with a gun owned by Howard's grandfather. Howard further testified that appellant claimed he killed the clerk because "he wanted to see what it feels like to kill somebody".

On March 5, 1986, the bodies of appellant's mother and stepfather were found shot to death in their bed. Howard testified that appellant came to his house early that morning and confessed the murders to him. Howard claimed that he suggested to the appellant that they hide the murder weapon, a .44 caliber revolver owned by appellant's stepfather, in Howard's house. Police investigation showed that the guns described by Howard were, in fact, used to fire the fatal shots. Finally, Howard testified that appellant devised a plan whereby he and appellant would return to appellant's house later that morning, "discover" the bodies, and call the police.

I. ISSUES RELATED TO JURY SELECTION
A.

Appellant claims that he was denied his right to trial by a jury composed of a fair cross section of the community. On the morning of trial, appellant filed a motion to quash the entire jury panel, asserting that use of voter registration records resulted in systematic exclusion of minorities from juries in Oklahoma County. Appellant sought to support this assertion by a request to "incorporate by reference" testimony presented before the trial judge in wholly unrelated cases. The State offered no objection, and the trial judge allowed this procedure.

On appeal, appellant has "cross-referenced" this record to the records on appeal in the other cases. Rule 3.3, 22 O.S.1981, Ch. 18 App., Rules of the Court of Criminal Appeals, permits cross referencing of appeal records, but does so only in the context of co-defendants filing separate appeals. The procedure used here was highly irregular and improper. Indeed, but for the fortuitous circumstance that the other cases resulted in convictions and appeals contemporaneous to this one, this Court would have had no record to review. In light of the gravity of this case, we have reviewed and considered the evidence presented in the other cases. However, in all future cases, the substance of stipulations of fact or expected testimony should be reduced to writing and made a part of the record, or recited in open court and recorded by the court reporter so that it can be transcribed in the event of appeal.

The Supreme Court has established guidelines to review claims such as the one presented by appellant.

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). On the basis of 1980 census data, appellant argued that identifiable groups of African Americans, native Americans, Asians, and other racial minorities are present in Oklahoma County. However, appellant presented no evidence showing that the representation of these groups in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community. Appellant failed to establish the second prong of a prima facie violation, and we find no error.

B.

Additionally, appellant asserts that the fair-cross-section requirement was violated by operation of 38 O.S.1981, § 28(A), which permits persons over seventy years of age to decline jury service without showing hardship or other exclusion. Assuming without admitting that appellant had satisfied his burden under the first prong of Duren, supra, see also Moore v. State, 736 P.2d 161, 165-66 (Okl.Cr.1987) cert. denied 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987), we note the language of the Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 537-38, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975):

The fair-cross-section principal must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists of panels are representative of the community.

We find that the age provision supplied in 38 O.S.1981, § 28(A) provides a reasonable exemption from jury service. The higher rate of infirmities suffered by the elderly and the likelihood of substantial hardship if they are compelled to travel or serve lengthy jury terms justify the exemption. Moreover, appellant has not shown that "the jury lists of panels" are not representative of the community.

C.

Appellant next contends that the trial court erred by refusing to allow individual sequestered voir dire of the veniremen. In Foster v. State, 714 P.2d 1031, 1037 (Okl.Cr.1986), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986), we noted that:

[a]lthough such a practice may be allowed by a trial judge, it is an extraordinary measure.... Unless the danger of prejudicing the jurors by exposure to damaging information is a grave problem or some special purpose would be served, it is unlikely that individual voir dire would be justified. We find no abuse of discretion in not allowing the procedure.

(Citations omitted.) Nor do we find any abuse of discretion in this case.

D.

Appellant next asserts that his rights under the Sixth and Eighth Amendments were violated when the trial judge refused to permit voir dire to determine prospective jurors' attitudes concerning youth as a mitigating factor. The extent of voir dire rests largely in the discretion of the trial court. VanWoundenberg v. State, 720 P.2d 328, 332 (Okl.Cr.1986) cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986). While it is proper to inquire whether a prospective juror is willing to consider the alternate punishments prescribed for First Degree Murder, we find no abuse of discretion in refusing to permit inquiry into views on particular mitigating circumstances. To permit such questioning would make voir dire an open forum for discussion of any circumstances accompanying the murder, both mitigating and aggravating. The great potential to improperly influence the jury weighs strongly in support of the trial court's ruling in this case.

While a criminal defendant in a State court is guaranteed an impartial jury by the Sixth Amendment, see Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and as a matter of process, see Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Constitution does not always entitle a defendant to propound questions during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976). As in Ristaino, the State in this case was able to fulfill its obligation to impanel an impartial jury with less than a specific inquiry into appellant's area of concern, and this argument must fail.

E.

Appellant next asserts that the trial court committed reversible error by excusing three prospective jurors who expressed concerns about imposing the death penalty. The proper inquiry when deciding whether to excuse a potential juror for his or her views on capital punishment is whether those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841 (1985). Although the jurors excused in this case gave confusing and sometimes conflicting answers to questions asked by the court and counsel, the record when read in context supports a finding that each of them would have been prevented or substantially impaired from performing their duties as a result of their views on capital punishment. The trial judge, who was present to observe the conduct and demeanor of the panel during voir dire, did not abuse his discretion by excusing any of the jurors for cause.

II. FIRST STAGE EVIDENCE
A.

Appellant claims that the trial court committed reversible error by excluding evidence material to his defense. Appellant sought to introduce testimony that an Oklahoma City...

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