Short v. State

• Decision Date: 21 May 1999
• Docket Number: No. F-97-540.,F-97-540.
• Citation: 980 P.2d 1081,1999 OK CR 15
• Parties: Terry Lyn SHORT, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

980 P.2d 1081

1999 OK CR 15

1999 OK CR 15

Terry Lyn SHORT, Appellant, v. STATE of Oklahoma, Appellee.

No. F-97-540.

Court of Criminal Appeals of Oklahoma.

April 14, 1999.

Rehearing Denied May 21, 1999.

Jim Rowan, Indigent Defense System, Norman, John Albert, Oklahoma City, Counsel for Appellant at trial.

Robert Macy, District Attorney, Fern Smith, Assistant District Attorney, Oklahoma City, OK, Counsel for the State at trial.

Matthew D. Haire, Indigent Defense System, Norman, Counsel for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, Counsel for the State on appeal.

OPINION

LUMPKIN, Vice Presiding Judge:

¶ 1 Appellant Terry Lyn Short was tried by jury and convicted of First Degree Murder (Count I) (21 O.S.1991, § 701.7) and five counts of Attempting to Kill, After Former Conviction of Two or More Felonies (Counts II-VI) (21 O.S.1991, § 652), Case No. CF-95-216, in the District Court of Oklahoma County. In Count I, the jury found the existence of three (3) aggravating circumstances and recommended the punishment of death. In Counts II-IV, the jury recommended as punishment one hundred (100) years imprisonment. In Counts V and VI, the jury recommended two (200) hundred years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.¹

¶ 2 Appellant was convicted of the murder of Ken Yamamoto. Mr. Yamamoto lived in apartment number 227 at the Royal Chateau Apartments in Oklahoma City. Directly beneath that apartment, in apartment number 127 lived Tammy Gardner, her two minor children, and Brenda Gardner, Tammy's sister.

¶ 3 Brenda Gardner and Appellant had been dating for some time. Appellant was abusive to Brenda and on several occasions threatened to kill Brenda and her family. At approximately 3:00 a.m. on January 8, 1995, Tammy and Brenda were awakened by a banging on the front door. When Brenda called out, the noise at the door stopped. Approximately thirty (30) minutes later, Robert Hines, the father of one of Tammy's children, knocked on the front door. He was unable to enter through the door as it was jammed. Hines entered the apartment through the patio door. He repaired the front door and remained to visit with Tammy and Brenda. At approximately 5:00 a.m., Brenda looked out the patio door to see Appellant standing beside Hines' truck. Upon hearing Brenda's announcement of Appellant's presence, Hines moved towards the patio door to look out. Appellant then threw a homemade explosive through the patio door, burning Hines and the apartment. Despite the burning of his left arm, Hines was able to run out of the apartment. Tammy, Brenda and the children escaped unharmed.

¶ 4 The fire spread quickly and caused Mr. Yamamoto's apartment to collapse into the inferno beneath it. Mr. Yamamoto was asleep at the time of the fire, and awoke to find himself burned and surrounded by paramedics. Mr. Yamamoto was severely burned, suffering thermal burns to 95 percent of his body. Mr. Yamamoto was transported to the hospital where he died several hours later as a result of the burns.

¶ 5 That same evening, Appellant phoned his cousin, David Davis, and asked him to pick him up and accompany him to the police station so he could surrender. At Appellant's request, Davis took Appellant a complete change of clothing. After changing his clothes, and accompanied by Davis, Appellant surrendered to the authorities.

¶ 6 Appellant raises fifteen propositions of error in his appeal. These propositions will be addressed in the order in which they arose at trial.

PRE-TRIAL ISSUES

¶ 7 Appellant challenges the trial court's determination of his competency to stand trial in his fourth assignment of error. At the time of Appellant's trial, the standard of proof to be used in competency determinations required a defendant to prove his/her incompetency by "clear and convincing" evidence. That standard has since been held unconstitutional, and "preponderance of the evidence" has been held the proper standard of proof. Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). Appellant argues that since he was found competent under an unconstitutional standard of proof, his case should be reversed and remanded in order that his competence can be evaluated under the proper "preponderance of the evidence" standard.

¶ 8 Pursuant to an order of the trial court, Dr. Edith King examined Appellant in the Oklahoma County Jail. Dr. King reported: 1) Appellant was able to appreciate the nature of the charges against him; 2) he was able to consult with his lawyer and rationally assist in the preparation of his defense; 3) he was not mentally ill; and 4) if Appellant were released without treatment, therapy or training he would pose a significant threat to the life or safety of himself and others.² At the post-examination competency hearing, defense counsel stipulated to Dr. King's findings that Appellant understood the charges against him and could assist in his defense and that if she were called to testify her testimony would be consistent with her report. No other evidence was offered or presented. Based upon the evidence before it, the trial court found Appellant competent to stand trial.

¶ 9 Whether a defendant is competent to stand trial is a matter left to the sound discretion of the trial court. Siah v. State, 837 P.2d 485, 487 (Okl.Cr.1992). This Court can review that decision, applying the proper standard of proof, i.e. "preponderance of the evidence." See Smith v. State, 932 P.2d 521, 528 (Okl.Cr.1996), cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997). The standard of review on appeal is whether there is any competent evidence reasonably supporting the trier of fact. Gilbert v. State 951 P.2d 98, 105 (Okl.Cr.1997). When the issue of competency is tried before a judge, his finding will not be disturbed on appeal if it is supported by sufficient evidence. Id.

¶ 10 Here, the uncontradicted evidence showed that Appellant knew the nature of the proceedings and possessed a rational understanding of them. The defense failed to prove, even by a preponderance of the evidence, that Appellant was incompetent to stand trial. Because the evidence in this case so strongly supports the finding that Appellant was competent, we find the trial court did not abuse its discretion in finding Appellant competent to stand trial, and this case need not be remanded for a new determination on the issue. Accordingly, this assignment of error is denied.

JURY SELECTION

¶ 11 In his eleventh assignment of error, Appellant contends the State's race-neutral reasons for excusing venirepersons Smith and Frazier were pretextual and their excusal from the jury violated the Equal Protection Clause under Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 1724, 90 L.Ed.2d 69 (1986).

¶ 12 Batson establishes a three (3) part analysis: 1) the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race; 2) after the requisite showing has been made, the burden shifts to the prosecutor to articulate a race neutral explanation related to the case for striking the juror in question; and 3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. As for the second requirement, the Supreme Court noted the race-neutral explanation by the prosecutor need not rise to the level justifying excusal for cause, but it must be a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges. Neill v. State, 896 P.2d 537, 546 (Okl.Cr.1994), cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740, (1996), quoting Batson, 476 U.S. at 98, n. 20, 106 S.Ct. at 1723, n. 20. The trial court's findings as to discriminatory intent are entitled to great deference. Id. Our review is only for clear error by the trial court, Pennington v. State, 913 P.2d 1356, 1365 (Okl.Cr.1995), cert. denied, 519 U.S. 841, 117 S.Ct. 121, 136 L.Ed.2d 72 (1996) and we review the record in the light most favorable to the trial court's ruling. Neill, 896 P.2d at 546.

¶ 13 A review of the record in this case shows the prosecutor offered race-neutral explanations for striking Ms. Smith and Ms. Frazier from the panel.

A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.

Id., quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, 406 (1991). See also Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995); Turrentine v. State, 965 P.2d 955, 964 (Okl.Cr.1998).

¶ 14 Here, the prosecutor used his second peremptory challenge to excuse venireperson Smith. He explained that she had a brother with two convictions and that because of the way she answered questions posed to her, the prosecutor was not sure she was being truthful. After noting that Ms. Smith was a black female, the trial court, over defense counsel's objection, accepted the prosecutor's explanation and struck the juror. The prosecutor used his last peremptory challenge to excuse venireperson Frazier stating that she had been convicted of an offense and placed on probation. He added "I don't want to gamble a verdict in this case on someone who I personally prosecuted." (Tr. II, pg.218). Again noting that the venireperson was a black female, the trial court, acknowledging its own reservations about the explanation and over defense counsel's objection, agreed to strike Ms. Frazier from the jury. (Tr. II, pg.218-220).³

¶ 15 The prosecutor's explanations were...