Stafford v. State

• Decision Date: 07 September 1983
• Docket Number: No. F-80-256,F-80-256
• Citation: 669 P.2d 285
• Parties: Roger Dale STAFFORD, Sr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 285

669 P.2d 285

Roger Dale STAFFORD, Sr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-256.

Court of Criminal Appeals of Oklahoma.

Sept. 7, 1983.

Rehearing Denied Oct. 6, 1983.

An appeal from the District Court of McClain County; J. Kenneth Love, Associate District Judge.

Roger Dale Stafford, Sr., appellant, was convicted in the District Court of McClain County, Oklahoma, of three counts of Murder in the First Degree, Case No. CRF-79-83. He was sentenced to death for each count and appeals. AFFIRMED.

Garvin A. Isaacs, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Criminal Div., State of Oklahoma, Oklahoma City, for appellee.

OPINION

BUSSEY, Presiding Judge:

The appellant, Roger Dale Stafford, Sr., stands convicted in this case of three counts of Murder in the First Degree. He was tried before a jury in the District Court of McClain County, Oklahoma, the Honorable Kenneth Love, Associate District Judge, presiding. The appellant's sentence for each murder was fixed at death, and he appeals therefrom.

The appellant, his wife (Verna Stafford) and their three children were transients who arrived in Tulsa, Oklahoma in June of 1978. Shortly thereafter, the appellant met up with his brother, Harold Stafford.

On June 21, the appellant, Verna, and Harold embarked upon a journey with the purpose of finding an Oklahoma City establishment to rob. All of the targeted sites were too busy, so they drove to Pauls Valley to look for motels to rob. Having examined the number of cars in the parking lots of each of the motels they visited, it was determined that it would not be profitable to rob any of the motels.

As they drove back to Oklahoma City, the trio decided to stop their car, raise the hood, and feign distress, in hopes that a wealthy good samaritan would come along. Verna attempted to flag down by-passing cars as the appellant and Harold lay in wait in the darkness beside the car.

After a period of time, a blue Ford Ranger pickup with a white camper shell pulled off the road, and the driver, Sergeant Melvin Lorenz, exited the vehicle to help Verna. Mr. Lorenz looked at the Stafford automobile, and informed Verna that he could detect no mechanical difficulties. At that point, the appellant and Harold approached Sergeant Lorenz and demanded his wallet. The appellant was armed with a pistol. Sergeant Lorenz informed the appellant that he and his family were on their way to his mother's funeral in North Dakota, and that he could give the appellant some money, but not all that he had.

Upon hearing this, the appellant shot the Sergeant two times. Sergeant Lorenz' wife, Linda Lorenz, heard the gunshots, and ran toward Verna Stafford from the pickup. Verna knocked Linda Lorenz to the ground. The appellant shot her as she fell.

The three then heard dogs barking and a child calling from the back of the camper. The appellant approached the camper, produced a knife, cut a hole in the screen, and fired his pistol into the darkness. The bullets from the pistol forever silenced the voice of eleven-year-old Richard Lorenz.

The appellant and Harold dragged the bodies of Sergeant and Mrs. Lorenz into a field adjacent to the highway where they were stopped. The appellant and Harold drove the Lorenz vehicle approximately three-fourths ( 3/4) of a mile down the highway, and dumped the body of Richard Lorenz in a field at that point. They then drove the pickup to Will Rogers Airport in Oklahoma City. Verna followed them in the Stafford automobile.

Upon arriving at Will Rogers, Verna parked the Stafford automobile and got in the Lorenz' pickup with the appellant and Harold. The trio drove to Stillwater, Oklahoma. They eventually returned to Will Rogers and abandoned the pickup. The appellant drove the Stafford vehicle back to Tulsa, while Harold and Verna hitchiked to Tulsa.

Much additional evidence was adduced at trial concerning eyewitness identification of the appellant, Verna and Harold at various points throughout the evening and night of June 21-22, 1978; of the appellant's employment; and of various other matters which shall be discussed only as they become pertinent to the appellant's allegations of error.

I. PRE-TRIAL

The appellant argues a change of venue should have been granted in this case. In support of his allegation, he points out the fact that there was widespread publicity throughout Oklahoma concerning this case; and, additionally, that he had been convicted of the "Sirloin Stockade murders" shortly prior to his trial for the Lorenz murders.

Trial counsel for the appellant failed to follow the proper procedure as set forth in our statutes to apply for a change of venue. See, 22 O.S.1981, § 561. The motion was not verified by affidavit, and was not supported by the requisite affidavits of at least three credible persons residing within the county. Thus, the motion was not properly before the trial court, and is not properly before this Court. ¹ Ake v. State, 663 P.2d 1 (Okl.Cr.1983).

In a related assignment of error, the appellant argues the trial court should have conducted the voir dire of the veniremen on an individual basis.

We have held numerous times that the decision whether to voir dire the prospective jurors individually is a matter of the trial court's discretion. Morrison v. State, 619 P.2d 203 (Okl.Cr.1980); Irvin v. State, 617 P.2d 588 (Okl.Cr.1980); Vavra v. State, 509 P.2d 1379 (Okl.Cr.1973); Gonzales v. State, 388 P.2d 312 (Okl.Cr.1964).

Although we agree that, in proper cases, conducting individual voir dire may be useful and appropriate; see, Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); we do not believe the trial court committed error by refusing to do so in the present case.

As noted earlier, in addition to the trial court's preliminary questions, counsel for the appellant was given great latitude to ferret out potential juror bias. Indeed, the transcript of the voir dire reflects that those who had preconceived opinions of the appellant's guilt or innocence, or had doubts about their ability to be impartial, or had reservations about the death penalty, freely stated so. ² The remaining veniremen admitted they had been exposed to media accounts of the "Sirloin Stockade murders" as well as the Lorenz murders. However, counsel questioned each in detail to ensure each could and would dispel those accounts from their minds.

We have no reason to believe the atmosphere of the voir dire prohibited the veniremen from honestly expressing their emotions concerning this case. There was no need for individual voir dire, thus no abuse of discretion. ³

In his third allegation of error, the appellant argues the court erred in excusing a potential juror under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

The form and substance of the questions posed the venire panel by the trial court were in compliance with those we have approved in Chaney v. State, 612 P.2d 269 (Okl.Cr.1980). Additional questions were asked by the judge to ensure he did not commit the error the appellant alleges today. A review of the discourse between the trial court and prospective juror Smith reveals no violation of Witherspoon. ⁴ It is apparent that Ms. Smith had predetermined she would vote against imposition of the death penalty, regardless of the evidence presented in support of it. Witherspoon, supra, at note 21. Ms. Smith was properly excused.

II. THE GUILT STAGE

Two of the appellant's allegations of error concern the fact that testimony was admitted at trial concerning conversations had between Verna Stafford and himself. The allegations specifically concern: 1) conversations held in a Tulsa restaurant in the presence of Harold Stafford, to which conversations Verna testified at the appellant's trial; and 2) that of an argument had between Verna and the appellant, which argument was overheard by a third person who testified concerning the content of the argument at the appellant's trial.

The appellant argues that the testimony in both instances concerned privileged husband-wife communications, protected by Laws 1953, p. 52, § 1, codified as 12 O.S. § 385 (now repealed). He argues that, although the statute has subsequently been repealed, it was in force at the time the conversations were held, thus it should have been controlling at trial.

The appellant is mistaken in his belief that section 385 was in force in June of 1978, when the conversations were had. That statute was repealed by Laws 1977, c. 265, § 13, codified as 12 O.S. § 418.4 (now repealed), effective October 1, 1977. Thus the appellant's argument fails from the outset. However, even if we apply the appellant's argument to Section 418.4 (which, we note was repealed effective October 1, 1978, by Laws 1978 c. 285 § 1102, now codified as 12 O.S.1981, § 3102), ⁵ we conclude the argument has no merit. The changes outlined above constituted changes in procedure only, and did not affect the substantive rights of the appellant. See, Taylor v. State, 640 P.2d 554 (Okl.Cr.1982). Thus, the appellant did not have a right to be governed by the prior statute, regardless of which one he thought to be in force. See, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898).

In addition to his argument concerning the repealed 12 O.S., § 385, the appellant argues that Laws 1957, p. 167, § 1, codified as 22 O.S., § 702 (now repealed) should have controlled the admissibility of the evidence concerning the conversations he had with Verna. Section 702, which was still valid at the time of the appellant's trial, was more restrictive than 12 O.S.1981, § 2504, which was also in force. The evidence would not have been admissible under Section 702. However, as we stated in Taylor v. State, supra; and Lavicky v. State, 632 P.2d 1234 (Okl.Cr.1981)...