Tibbs v. State

• Citation: 1991 OK CR 115,819 P.2d 1372
• Decision Date: 24 October 1991
• Docket Number: No. F-87-149,F-87-149
• Parties: Derek Lee TIBBS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1372

819 P.2d 1372

Derek Lee TIBBS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-87-149.

Court of Criminal Appeals of Oklahoma.

Oct. 24, 1991.

An Appeal From the District Court of Pottawatomie County; Glenn Dale Carter, District Judge

Derek Lee Tibbs, Appellant, was tried by jury for the crimes of First Degree Murder (Counts I and II), and First Degree Rape, After Former Conviction of a Felony (Count III) in Case No. CRF-86-333. The jury returned verdicts of guilty on each count and set punishment at death for Counts I and II and life imprisonment for Count III. From these judgements and sentences, appellant appeals. Appellant's convictions for Counts I and II are Reversed and Remanded for a New Trial, and Count III is Affirmed.

Scott W. Braden, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Derek Lee Tibbs, appellant, was tried and convicted by a jury for the crimes of First Degree Murder (Counts I and II), in violation of 21 O.S.Supp.1985, § 701.7, and First Degree Rape, After Former Conviction of a Felony (Count III), in violation of 21 O.S.1981, § 1114, in Case No. CRF-86-333 in the District Court of Pottawatomie County. The jury set punishment at death for Counts I and II, ¹ and life imprisonment for Count III. The trial court imposed the sentences as assessed by the jury. From this Judgment and Sentence, appellant has perfected his appeal to this Court.

Ronald DeWayne Richardson a/k/a Ronald Cummins testified that around noon on September 17, 1986, he and appellant burglarized a trailer house in Harrah, Oklahoma. Then the two went to another friend's house, Larry Belcher, to assess what they had taken from the trailer house. Appellant had taken a .357 magnum pistol and a 12 gauge pump shotgun to Belcher's house. Belcher had previously sawed off the barrel of the shotgun for appellant. Later that evening, Richardson and appellant discussed burglarizing the home of the victims in this case, Floyd and Rhonda Sue Kinnamon. Appellant had the firearms in his car. No mention was made of killing them.

On the way to the Kinnamon residence, appellant and Richardson drove by the Liberty Club, a neighborhood tavern owned and operated by the Kinnamons. The two wanted to make sure that the Kinnamons were at the club and not at home. Seeing their pickup at the club, the two drove on to the Kinnamon residence.

According to Richardson, as he and appellant were going through the house looking for valuables, they heard a car pull up to the house. He yelled to appellant that they should get out of there, but appellant told him to be quiet and stay where he was. Floyd Kinnamon came into his house and turned on the light. His wife, Rhonda Kinnamon was right behind him. Appellant appeared from where he had been hiding and shot Mr. Kinnamon, killing him instantly. He then grabbed Mrs. Kinnamon. He told Richardson to hold the shotgun. Then he threw Mrs. Kinnamon on the kitchen floor, ripped her clothes off, and raped her. Appellant carried her to a bedroom and told Richardson to bring him the shotgun. Richardson heard one or two shots. The two left shortly after that with several items from the Kinnamon residence. Richardson suggested that they drive to Victoria, Texas. On the way there, they threw the shotgun and their clothes into the Red River. The next day the bodies of the victims were found in their home.

I.

Appellant raises nineteen assignments of error in his original brief and one in his supplemental brief. In his eleventh assignment of error, appellant contends that the trial court committed reversible error by giving Instruction 19 to the jury and by failing to require a unanimous jury verdict on a single theory of guilt. Since we find that the murder convictions must be reversed and remanded for a new trial based upon the errors alleged in the eleventh proposition, we will not address those remaining issues that deal solely with the murder convictions and the death sentences.

Appellant, along with Ronald Richardson, was charged by information with Murder in the First Degree with Malice Aforethought for the deaths of Mr. and Mrs. Kinnamon and First Degree Rape of Mrs. Kinnamon. Although appellant was not charged with robbery, the trial court instructed the jury that they could find appellant guilty of First Degree Murder based on either malice aforethought or felony-murder, with either forcible rape or robbery with a dangerous weapon as the underlying felony. ² Appellant contends that this violated his right to due process under the Oklahoma and United States Constitutions. He also alleges that this error was of such fundamental nature that even though counsel did not object to the felony-murder instructions or give alternative instructions to the trial court, this issue is properly raised for the first time on appeal. ³ Normally, failure to object to jury instructions waives any error on appeal. However, insofar as we have found that the error complained of is fundamental in that it deprived appellant of a right essential to his defense, we will address the issue for the first time on appeal. See Staggs v. State, 804 P.2d 456 (Okl.Cr.1991); West v. State, 764 P.2d 528 (Okl.Cr.1988).

The United States Supreme Court has held that the liberty of an accused cannot be taken away without being apprised of the basic standards of fair notice of the charges and an opportunity to defend against those charges. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). It has also been long held that if a case is submitted to a jury on alternative theories and one of those theories is constitutionally infirm, then the entire conviction must be set aside. See Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed 1117 (1931). See also Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2745, 77 L.Ed.2d 235 (1983); Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 1545-46, 23 L.Ed.2d 57 (1969).

This Court has held that instructing the jury on alternate theories of guilt is proper in a murder case where the evidence presented at trial supports both theories and the defendant is put on notice of the underlying felonies. Munson v. State, 758 P.2d 324 (Okl.Cr.1988), cert. denied 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989). In Munson, the defendant was initially only charged with first degree malice aforethought murder. The information was later amended to include charges for kidnapping and armed robbery. A preliminary hearing was held at which the defendant was bound over for trial on all three charges. The trial court instructed the jury on first degree malice aforethought murder and first degree felony-murder based upon the kidnapping and armed robbery charges. The defendant was convicted on all three counts and sentenced to death for the murder conviction. This Court held that the trial court's instructing on felony-murder was not reversible error because the defendant had notice of the underlying felonies. However, "[i]f [the defendant] had not been put on notice of the underlying felonies that he would be required to defend against, due process considerations would have required a reversal." Id., at 332.

In the present case, the jury was instructed that they could find appellant guilty of murder in the first degree if they found that death was "caused by the defendant, Derek Lee Tibbs while in the commission of a forcible rape or robbery with a dangerous weapon." (Instruction No. 25). In light of Munson, robbery cannot be used as the underlying felony in the death of either of the victims because the appellant was not put on notice that he would have to defend against this felony. ⁴ Further, the death sentence imposed in Count II for Mrs. Kinnamon's homicide cannot be upheld under a felony murder theory with rape as the underlying felony because, under the principle enunciated in Stromberg, if a case is submitted to a jury on even one constitutionally infirm theory, the conviction must be set aside.

Appellant was denied due process, thereby invalidating felony murder as an alternate theory of guilt in this case. Therefore, under the principles of Jackson, and Stromberg, we find that Counts I and II must be reversed and remanded for a new trial. ⁵

II.

We now turn to appellant's remaining assignments of error, but as we stated previously, we will not address those issues that deal exclusively with the murder convictions nor the death sentences since they were reversed for a new trial.

In his first assignment of error, appellant alleges that the trial court committed reversible error when it denied his request for assistance of non-psychiatric experts. Specifically, appellant requested that the State provide the services of a medical doctor, fingerprint expert and a criminal investigator. Appellant contends that the United States Supreme Court's holding in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), should be extended to non-psychiatric experts. While this Court has found that the holding in Ake v. Oklahoma "must necessarily be extended to include any expert which is 'necessary for an adequate defense,' " the defendant must be able to demonstrate a need for that expert to the trial court or substantial prejudice from the lack of such experts. Ake v. State, 778 P.2d 460, 464 n. 1 (Okl.Cr.1989). ⁶ See also Washington v. State, 800 P.2d 252 (Okl.Cr.1990).

In effect at the time of appellant's trial, 22 O.S.Supp.1985, § 464(B), allows a trial court to provide an indigent defendant access to expert witnesses in a capital case upon a showing of necessity for expert witnesses by the defendant. This Court has stated that when the defendant does not demonstrate any need to the trial court for the experts or any substantial prejudice from the lack of experts, then there has been no abuse of discretion by the trial court in...