Turrentine v. State, F-95-1110

• Citation: 1998 OK CR 33,965 P.2d 955
• Decision Date: 27 May 1998
• Docket Number: No. F-95-1110,F-95-1110
• Parties: 1998 OK CR 33 Kenneth Eugene TURRENTINE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 955

965 P.2d 955

1998 OK CR 33

Kenneth Eugene TURRENTINE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-95-1110.

Court of Criminal Appeals of Oklahoma.

May 27, 1998.

Order Denying Rehearing July 14, 1998.

An Appeal from the District Court of Tulsa County; Honorable B.R. Beasley, Associate District Judge.

James T. Rowan, Joe Robertson, Oklahoma Indigent Defense, Norman, for appellant at trial.

David Moss, District Attorney, John E. Priddy, Todd W. Singer, Assistant District Attorneys, Tulsa, for the State at trial.

Anne Moore, Oklahoma Indigent Defense, Norman, for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, for the State on appeal.

OPINION

LUMPKIN, Judge:

¶1 Appellant Kenneth Eugene Turrentine was tried by jury and convicted of four (4) counts of First Degree Murder (21 O.S.1991, § 701.7), Case No. CF-94-2784, in the District Court of Tulsa County. In Counts I, II, and III, the jury found the existence of three (3) aggravating circumstances and recommended the punishment of death. In Count IV, the jury found the existence of two (2) aggravating circumstances and recommended as punishment life imprisonment without the possibility of parole. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal. ¹

¶2 On June 4, 1994, Appellant killed his sister Avon Stevenson, his girlfriend, Anita Richardson, and her two children, thirteen (13) year old Martise Richardson and twenty-two (22) year old Tina Pennington. Appellant suspected Anita of seeing other men and believed his sister Avon knew about Anita's affairs. He also believed Anita and Avon were cheating him out of money. On June 3, 1994, Appellant sought to retrieve a gun he had given to an ex-wife. She initially refused but turned the loaded .22 caliber gun over to him the next morning.

¶3 After retrieving the gun, Appellant went to his sister's home. Appellant confronted his sister with his beliefs and an argument ensued. Appellant's sister apparently laughed in his face and called him a "punk." In response, Appellant placed the gun to her head and fired one shot. She died at the scene.

¶4 Appellant then drove to Anita Richardson's home. The two argued and Appellant placed the gun to her head and fired a shot. She died at the scene. Appellant also shot both of Anita's children in the head. After the shootings, Appellant called 911 and admitted to shooting his "ol lady," his kids and his sister. He then went outside to wait for the police to arrive. Upon their arrival, he again confessed to the killings.

JURY SELECTION

A.

¶5 In his first assignment of error, Appellant attacks the State's use of peremptory challenges to exclude Mrs. Peel and Mrs. Calamease, two (2) black venirepersons. In Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that a defendant can raise an equal protection challenge to the use of peremptory challenges at his own trial by showing that the prosecutor used the challenges for the purpose of excluding members of the defendant's own race from the jury panel. Id., 476 U.S. at 96, 106 S.Ct. at 1723-24, 90 L.Ed.2d at 87.

¶6 Batson established 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; 3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. The 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. Id., 476 U.S. at 98 n. 20, 106 S.Ct. 1712. The trial court's findings as to discriminatory intent are entitled to great deference. Id., 476 U.S. at 98 n. 21, 106 S.Ct. 1712; Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 1868-69, 114 L.Ed.2d 395 (1991) (plurality opinion). Therefore, we review the record in the light most favorable to the trial court's ruling. 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); Black v. State, 871 P.2d 35, 43 (Okl.Cr.1994).

¶7 In the present case, we need not determine whether Appellant made a prima facie showing of intentional discrimination as the issue is moot. "Once a prosecutor has offered a race neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot." Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866, 114 L.Ed.2d at 405.

¶8 A review of the record in this case shows the prosecutor offered race-neutral explanations for striking Mrs. Peel and Mrs. Calamease 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. See also Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 1770-1771, 131 L.Ed.2d 834 (1995).

¶9 Over Appellant's objection, the State used its fourth peremptory challenge to excuse Mrs. Peel. The prosecutor explained that he excused her based upon her statements during voir dire that she had started a new job, she was not being paid for the time away from her job while sitting on the jury, she needed her salary to pay bills and the cause of the financial stress in not receiving her salary would be "weighing on her mind." On its face, this explanation does not reveal an intent to discriminate against the potential juror on account of race. The State's impression that the juror would not be able to give the case her full attention and put aside any personal concerns is a legitimate, race-neutral reason to strike a juror.

¶10 The State's sixth peremptory challenge was used to excuse Mrs. Calamease. Once again, the defense objected. The prosecutor explained that Mrs. Calamease was not a registered voter, that she stated she had friends in "DOC" (Department of Corrections) and that "[s]ince she resides here in Tulsa County, we can only infer that those are prosecuted as a result of this officer's actions and I have serious concerns." (Tr. 343). The prosecutor also stated that Mrs. Calamease had indicated she had not had any contact with local law enforcement or the District Attorney's office outside of a sister who works in the records department. However, when the District Attorney's office ran a records check on her, they found she had been the victim of an assault with a firearm, the suspect in an assault and battery case, and several other instances where she had been either the victim or the suspect, and where, in certain cases, an alias had been used. The potential juror was also a victim in a case where the preliminary hearing was pending at the time. The prosecutor stated he felt Mrs. Calamease had been less than candid with the court and therefore, the State wished to excuse her from the panel. The trial court rejected the State's first two reasons for excusal, but permitted the State to exercise its peremptory challenge on the basis that the juror had not been candid with the court and that some of the information obtained by the District Attorney could have been brought out by the juror. The trial court found this to be a race-neutral basis for the challenge and stated that no purposeful discriminatory intent was evident from the prosecutor's explanation.

¶11 We agree the prosecutor's belief that Mrs. Calamease was not candid with the trial court was a sufficient race-neutral explanation. Mrs. Calamease's lack of candor on the issue of her contacts with law enforcement raised questions as to whether she was honest and candid in her answers regarding her ability to be a fair and impartial juror. The lack of candor and honesty on the part of a potential juror is not a characteristic that is peculiar to any race. Appellant asserts in a footnote that it "is not clear from the record, but it appears" that Mrs. Calamease was the only potential juror for whom the State ran a records check. Such assertion is not supported by the record, and contrary to Appellant's claim, does not support his argument that the State was searching for a pretextual, rather than genuine, reason to remove the juror.

¶12 Once the prosecutor offers a race-neutral basis for the exercise of the peremptory challenge, it is the duty of the trial court to determine if the defendant has established purposeful discrimination. "[I]n the typical peremptory challenge inquiry, the decisive question will be whether counsel's race neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge.... [E]valuation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' " Hernandez, 500 U.S. at 365, 111 S.Ct. at 1859, 114 L.Ed.2d at 409. Here, the trial court chose to believe the prosecutor's race neutral explanations for striking the jurors in question, rejecting Appellant's assertion that the reasons were pretextual. The trial court's decision on the issue of discriminatory intent will not be overturned unless we are convinced that the determination is clearly erroneous. Hernandez, 500 U.S. at 369, 111 S.Ct. at 1871-2, 114 L.Ed.2d at 412. See also Simpson...