Shelton v. State, F-86-920

Decision Date24 May 1990
Docket NumberNo. F-86-920,F-86-920
Citation793 P.2d 866
PartiesDale Austin SHELTON, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

LANE, Vice-Presiding Judge:

Dale Austin Shelton, Appellant, was charged and tried by jury for the crimes of Murder in the First Degree (21 O.S.Supp.1982, § 701.7 B); two counts of Kidnapping for the Purpose of Extortion (21 O.S.1981, § 745A); Rape in the First Degree (21 O.S.Supp.1983, § 1114); and Forcible Oral Sodomy (21 O.S.1981, § 888) in Case No. CRF-85-6156 in the District Court of Oklahoma County. The jury returned a verdict of guilty to each count and set punishment at life imprisonment for each count to be served consecutively. Appellant was sentenced accordingly.

On August 19, 1985, Appellant served as a lookout, while Don Wilson Hawkins forced his way into Linda Thompson's car at the Shepherd Mall Postal Station in Oklahoma City and kidnapped Thompson and her two young daughters. Hawkins drove Thompson's car to the place he was staying, the "big house", near the intersection of Bryant and 50th streets in Oklahoma City; Appellant drove back in their car. Hawkins later chained Thompson in the loft of the "big house" barn. Appellant removed the chain, raped and sodomized Thompson and rechained her. Although Hawkins claimed he was holding Thompson for ransom, a ransom demand was never made. The next day Appellant and Hawkins drove Thompson in her car to Sportsman Lake in Seminole, Oklahoma. Appellant again served as a lookout while Hawkins bound, gagged and drowned Thompson. Appellant helped Hawkins drag the body out of the lake and camouflage it under brush in a nearby ravine. Meanwhile, Hawkins' girl friend and her nephew took Thompson's children to their regular babysitter. Appellant and Hawkins fled the state and were arrested subsequently in Sacramento, California. They were tried together and each has perfected a separate appeal.

Appellant argues in his first proposition of error that the admission of character evidence regarding the victim, Linda Thompson, denied him a fair trial. Appellant relies on Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) in which the United States Supreme Court disapproved of the use of victim impact statements which provide the jury with information regarding the personal characteristics of the victim, the emotional impact of the crime on the family and the family's opinions of the crimes and the defendant. The Booth victim impact statement was used in the sentencing stage of trial. 107 S.Ct. at 2532. Appellant complains of testimony from Thompson's ex-husband, uncle and boyfriend that she took good care of her children, fed them nutritiously, took them to the doctor when necessary and fenced her backyard so they would not wander into the street. Testimony also established Thompson was a serious aerobics student who had a bachelor's degree from a small college in Minnesota. Unlike Booth, no evidence regarding the emotional impact of Thompson's murder on her family or her family's opinion of the crimes or the Appellant was presented at trial.

In order to prove the charge of Kidnapping for Extortion, the State had to prove Appellant forcibly seized and confined Thompson's daughters without her authority. 21 O.S.1981, § 745. Evidence regarding how Thompson took care of her children tends to prove Appellant did not have her permission to confine them. The probative value of this evidence far outweighs any prejudice it might cause, and thus, it was properly admitted. See 12 O.S.1981, § 2402. The evidence regarding Thompson's education and interest in aerobics is irrelevant and should not have been admitted. The possible impact of this evidence is, however, so minimal that it could not have affected the jury's verdict. It's admission, therefore, is harmless error. See Cooper v. State, 671 P.2d 1168 (Okl.Cr.1983).

Appellant next argues he was denied a fair trial by the introduction of one photograph and two photo-identification card pictures taken of Thompson while she was alive. This Court does not encourage the use of photographs taken of victims before their demise and we caution prosecutors to first seek other forms of proof which are less prejudicial. Newbury v. State, 695 P.2d 531 (Okl.Cr.1985) overruled in part on other grounds McCalip v. State, 778 P.2d 488, 490 (Okl.Cr.1989). However, photographs of victims while they were alive may be admissable where they are relevant to a material issue and would reasonably assist the jury in determining the defendant's guilt. Whittmore v. State, 742 P.2d 1154 (Okl.Cr.1987).

In the instant case, the identity of the woman whom Appellant raped, sodomized and helped kidnap and murder was a material trial issue. Appellant argues that his stipulation that the dental x-rays of the skeletal remains would match Thompson's dental x-rays eliminates identity as a trial issue. This stipulation establishes only the identity of the remains. The photograph was essential in eliciting testimony from two key witnesses that Thompson was in fact the woman brought to the "big house". This photograph therefore was properly admitted. See Oxendine v. State, 335 P.2d 940 (Okl.Cr.1958).

The photo-identification cards were found by Oklahoma City Police Officer Horn, in a purse in a crate next to the garage of the "big house". Co-defendant Hawkins told Oklahoma City Police Detective Sellers that he put the purse of the woman he killed in a crate next to the garage. These identification cards therefore are material corroborative evidence which is also relevant to the identification of Appellant's victim. We find the relevance of these photo-identification cards outweighs the danger that the jury would substitute emotion for reason in this case. Newbury v. State, 695 P.2d 531 (Okl.Cr.1985).

Appellant asserts as his third proposition of error that he was improperly denied a change of venue. He claims pre-trial publicity in Oklahoma County tainted the jury panel. The trial court has the discretion to grant or deny a change of venue and we will not reverse the trial court's decision absent an abuse of that discretion. Godbey v. State, 731 P.2d 986 (Okl.Cr.1987). An abuse of discretion in the refusal to grant a change of venue because of pretrial publicity is shown only where the defendant was prevented from receiving a fair trial by an impartial jury. 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). The jury panel consisted of three people who had not heard of this case before trial and nine people who had heard of the case, but had not formed an opinion. Extensive voir dire was conducted. Each juror who had heard of the case before trial was individually examined by the trial judge and counsel in chambers. Each of the jurors finally seated stated he or she could set aside any opinion held and impartially judge the case on the evidence presented at trial. This is the standard of a fair jury trial. Hale v. State, 750 P.2d 130 (Okl.Cr.1988) cert. denied 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988). We find no abuse of discretion by the trial judge in denying Appellant a change of venue.

Appellant also attacks venue in Oklahoma County by arguing he was coerced into waiving venue in Seminole County. Neither the facts nor law of this case support this argument. Appellant has the constitutional right to be tried in the county in which the crime was committed. Okl. Const. art. II, § 20. This constitutional right is a personal privilege which may be waived. Morris v. State, 363 P.2d 377 (Okl.Cr.1961). However, waiver of venue is not an issue in this case. The evidence clearly established the crime was committed in both Oklahoma and Seminole counties. Venue was, therefore, proper in either county at the State's discretion. 22 O.S.1981, § 124.

In his fourth proposition of error, Appellant asserts prosecutorial misconduct denied him a fair trial. Appellant failed to object at trial to several of the alleged improper statements. Failure to object at trial when the error may be cured by the trial judge waives review by this Court for all but fundamental error. Coleman v. State, 747 P.2d 322 (Okl.Cr.1987). After review of the entire record, we conclude these statements did not affect the outcome of this trial and therefore, do not constitute reversible error. See Campbell v. State, 636 P.2d 352 (Okl.Cr.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983). Appellant also cites several statements to which the trial court sustained his objection. These statements were such that any error was cured by the trial court. See Mann v. State, 749 P.2d 1151 (Okl.Cr.1988), cert. denied 488 U.S. 877, 109 S.Ct. 193, 102 L.Ed.2d 163 (1988).

Appellant misconstrues other crimes evidence when he argues the prosecutor improperly referred to other crimes evidence in his opening statement which was later elicited during the State's case in chief. In describing the series of events which culminated in the Appellant and his co-defendant kidnapping Thompson and her children the prosecutor stated:

When they got there, Shelton acted as a lookout while Hawkins with his gun went up to the postal substation to wait for a...

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