Smith v. State

• Decision Date: 28 October 1986
• Docket Number: No. F-83-9,F-83-9
• Citation: 727 P.2d 1366
• Parties: Lois Nadean SMITH, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1366

727 P.2d 1366

Lois Nadean SMITH, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-9.

Court of Criminal Appeals of Oklahoma.

Oct. 28, 1986.

Rehearing Denied Dec. 8, 1986.

Elaine Meek, Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Robert M. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Lois Nadean Smith, was convicted in the District Court of Sequoyah County, Case No. CRF-82-104, of Murder in the First Degree for which she received a sentence of death.

The evidence shows that the appellant, her son Greg, and Teresa Baker picked up Cindy Baillee at a Tahlequah motel early on the morning of July 4, 1982. Baillee had been Greg's girlfriend, but allegedly had made threats to have him killed.

As the group drove away from the motel, appellant confronted Ms. Baillee with rumors that she had arranged for Greg's murder. When Ms. Baillee denied making any threats or arrangements, appellant choked the victim and stabbed her in the throat with a knife found in the victim's purse. The car traveled to the home of Jim Smith, the appellant's ex-husband and Greg's father in Gans, Oklahoma. Present at the house were Smith and his wife Robyn. She left shortly after the group arrived.

While at the Smith house, appellant forced Ms. Baillee to sit in a recliner chair. She then threatened to kill Ms. Baillee, and taunted her with a pistol. Finally, appellant fired a shot into the recliner, near Ms. Baillee's head. She then fired a series of shots at Ms. Baillee, and the wounded victim fell to the floor. As Greg Smith reloaded the pistol, appellant laughed while jumping on the victim's neck. Appellant took the pistol from Greg and fired four more bullets into the body. A subsequent autopsy showed Ms. Baillee had been shot five times in the chest, twice in the head, and once in the back. Five of these gunshot wounds were fatal. The knife wound was also potentially fatal.

An expert in blood splatter analysis testified blood stains on the blouse worn by appellant proved circumstantially that she had fired the fatal shots. Evidence also was presented by the State that appellant directed her companions to dispose of some evidence and arranged an alibi story for them.

Appellant testified on her own behalf that Teresa Baker actually shot and killed Ms. Baillee. She claimed Ms. Baker killed the victim because of jealousy over Greg.

The appellant claims as her first assignment of error that a special prosecutor was allowed to try this case in violation of Oklahoma statutes which do not permit the appointment of a special prosecutor. Driskell v. Goerke, 562 P.2d 157 (Okl.Cr.1977) and Driskell v. State, 659 P.2d 343 (Okl.Cr.1983). The record reveals that Assistant District Attorney Michael Daffin had tendered his resignation, effective November 1, 1982, but because of delays, the appellant's trial, which was being prosecuted by Mr. Daffin, was set in December, 1982. He agreed to stay in order to try the case. The appointment of an attorney for the special and limited purpose of assisting in the prosecution of a case through some procedure other than that set out in the statutes (see especially, 19 O.S.1981, § 215.9) is error. Driskell v. Goerke. The attorney in the two Driskell cases had been specially retained to prosecute Driskell. In contrast, Mr. Daffin merely agreed to delay his departure in order to avoid another delay in this trial. Under these facts Mr. Daffin cannot be considered a special prosecutor, and so this assignment of error is without merit.

The appellant next alleges that her sixth amendment right to counsel was violated when the trial court allowed one attorney to represent both codefendants. She claims that the possibility of a conflict of interest was apparent to the trial judge and he should have taken action to remedy the apparent conflict. The record reveals that appellant's trial counsel was retained by appellant the day of the killing, and was appointed by the court to represent her codefendant, Greg Smith, on July 8, 1982. There is no record of an objection to this appointment based upon a conflict of interest, nor were any objections made by the codefendants.

The issues in this assignment of error are identical to those addressed by the Supreme Court of the United States in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980):

The first is whether a state trial judge must inquire into the propriety of multiple representation even though no party lodges an objection. The second is whether the mere possibility of a conflict of interest warrants the conclusion that the defendant was deprived of his right to counsel.

Id. at 345, 100 S.Ct. at 1716. The Court held:

Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.

Id. at 347, 100 S.Ct. at 1717.

[T]he possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.

Id. at 350, 100 S.Ct. at 1719. There is no evidence that a conflict of interest arose during the course of appellant's trial. She asserts, however, that an actual conflict of interest is shown by the defense theory in Greg Smith's trial that the appellant alone planned and carried out the killing of Cindy Baillee. But this theory was used only after the appellant's conviction, and was first presented by defense counsel during closing argument in Greg Smith's trial, which occurred six months after the appellant's conviction. She also asserts that defense counsel prevented the State from calling Greg Smith as a witness, and speculates concerning his possible testimony. The possibility which is not addressed by the appellant is that Greg Smith's testimony would have severely damaged his mother's case.

As nothing in the record exists to alert the trial judge that a conflict of interest existed, and the appellant has not shown an actual conflict of interest, but merely speculated on the possibilities, we find this assignment of error to be without merit.

The appellant next contends, as her third assignment of error, that the jury was improperly selected. First, she complains that the individual jury ballots were not folded as required by 22 O.S.1981, § 593. Second, she complains that the trial court committed reversible error by excusing two potential jurors for cause.

Concerning the first complaint, the appellant correctly states in her brief that "This error, standing alone, is not sufficient to warrant reversal." The trial court, after a brief hearing, found that the procedure followed in choosing the prospective jurors was in substantial compliance with the statute. Title 38 O.S.1981, § 29 provides, in part:

A substantial compliance with the provisions of this chapter, shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing, and summoning or impaneling the same, resulted in depriving a party litigant of some substantial right; provided, however, that such irregularity must be specifically presented to the court at or before the time the jury is sworn to try the cause.

We have held that the primary purpose of the jury drawing statutes is to insure that jurors would be drawn fairly and impartially so that there could be no suspicion that the jurors had been secretly handpicked. Stuart v. State, 522 P.2d 288 (Okl.Cr.1974). As there is no evidence that the appellant was deprived of some substantial right, we find this complaint to be meritless.

Concerning the second complaint, the two jurors who were excused had originally been passed for cause, and later, after asking to address the court, each juror indicated a fear of being distracted during the trial by either business or family responsibilities. Each juror was thoroughly questioned by the parties and the trial judge who decided to dismiss the two jurors. An examination of the record reveals that each dismissal had a sufficient basis.

[I]f the trial court is of the opinion that any juror is not fair or impartial or is for any reason unqualified, he may excuse the juror either upon challenge of one of the parties or upon his own motion without challenge. Whether or not a juror should be excused rests in the sound discretion of the trial court, and unless such discretion is abused there is no error.

Lewis v. State, 586 P.2d 81, 82 (Okl.Cr.1978). This assignment of error is without merit.

As her fourth assignment of error, the appellant argues that the trial court admitted exhibits which were highly prejudicial and lacked probative value. These exhibits consisted of photographs, and physical evidence obtained at the crime scene. Eight photographs of the deceased were admitted over the objections of defense counsel. Four of these photographs depicted the victim as she was found in the Smith residence, and four depict the wounds inflicted on her body. The introduction of photographs taken of a homicide victim subsequent to the homicide is largely within the discretion of the trial court, and unless this discretion is abused it will not be cause for reversal. Master v. State, 702 P.2d 375 (Okl.Cr.1985). As these photographs corroborate the testimony of the witnesses, and were not gruesome, we find that their probative value outweighs the danger of prejudice to the appellant.

Concerning the exhibits of which the appellant complains, only two exhibits were admitted over the objection of the appellant. Three others were admitted after defense counsel stated that he had no objection, one exhibit was admitted after defense counsel joined in the motion for admission, and two exhibits were not admitted. Therefore, we will only address the admission of the two exhibits to which defense counsel ...