Underwood v. State , No. D–2008–319.

• Court: Court of Criminal Appeals of Oklahoma
• Writing for the Court: OPINION
• Citation: 2011 OK CR 12,252 P.3d 221
• Decision Date: 25 March 2011
• Docket Number: No. D–2008–319.
• Parties: Kevin Ray UNDERWOOD, Appellant,v.STATE of Oklahoma, Appellee.

252 P.3d 221
2011 OK CR 12

Kevin Ray UNDERWOOD, Appellant,
v.
STATE of Oklahoma, Appellee.

No. D–2008–319.

Court of Criminal Appeals of Oklahoma.

March 25, 2011.

[252 P.3d 229]

¶ 0 An Appeal from the District Court of Cleveland County; The Honorable Candace Blalock, District Judge.L. Wayne Woodyard, Matthew D. Haire, G. Lynn Burch, Norman, OK, attorneys for defendant at trial.Greg Mashburn, District Attorney, Susan Caswell, Assistant District Attorney, Norman, OK, attorneys for the State at trial.William H. Luker, Lee Ann Jones Peters, Norman, OK, attorneys for appellant on appeal.W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer J. Dickson, Assistant Attorney General, Oklahoma City, OK, attorneys for the State on appeal.

OPINION C. JOHNSON, Judge.

¶ 1 Appellant, Kevin Ray Underwood, was charged in McClain County District Court (Case No. CF2006–102) with First Degree Murder (21 O.S.Supp.2004, § 701.7(A)). The State alleged three aggravating circumstances in support of the death penalty. The district court granted Appellant's request for a change of venue, and the case was transferred from McClain County to Cleveland County (Case No. CF–2007–513). Jury trial was held February 19 through March 7, 2008 before the Honorable Candace L. Blalock, District Judge. The jury found Appellant guilty as charged. Before the capital sentencing phase of the trial began, the State dismissed one of the three aggravating circumstances it had alleged. The jury rejected a second aggravating circumstance, but did

[252 P.3d 230]

find that the murder was especially heinous, atrocious, or cruel, and recommended a sentence of death.¹ Formal sentencing was held April 3, 2008. Appellant timely appealed the verdict to this Court.²

FACTS

¶ 2 Appellant was charged with murdering ten-year-old Jamie Bolin on April 12, 2006, in Purcell, Oklahoma. Appellant lived alone in the same apartment complex where Jamie lived with her father, Curtis Bolin. Due to her father's work schedule, Jamie was typically home alone for a period of time after school. On the day in question, Jamie played in the school library with a friend for a short time before going home. She was never seen alive again.

¶ 3 Police, firefighters, and a host of citizen volunteers began a search for Jamie. The day after Jamie's disappearance, the Federal Bureau of Investigation added over two dozen people to the effort. On April 14, 2006, two days after Jamie was last seen, police set up several roadblocks around the apartment complex where she lived, seeking leads from local motorists. Around 3:45 p.m. that day, FBI Agent Craig Overby encountered a truck driven by Appellant's father at one of the roadblocks; Appellant was a passenger in the truck. Appellant's father told Overby that they had heard about the disappearance, and that in fact, Appellant was the girl's neighbor. From speaking with other neighbors at the apartment complex, Overby knew that a young man living there may have been the last person to see Jamie. Overby asked if Appellant would come to the patrol car to talk for a moment, and Appellant agreed, while his father waited in the truck. In the patrol car, Appellant made statements that piqued Overby's interest.³ Overby asked Appellant if he would come to the police station for additional questioning. Again, Appellant agreed, and Overby assured Appellant's father that he (Overby) would give Appellant a ride home.

¶ 4 At the police station, Appellant was interviewed by Agent Overby and Agent Martin Maag. Appellant told them about seeing Jamie on April 12, and discussed his activities on that day and other matters. At the conclusion of this interview, which lasted less than an hour, the agents asked Appellant if they could search his apartment. Appellant agreed. The agents accompanied Appellant to his apartment around 5:00 p.m. While looking around the apartment, Overby saw a large plastic storage tub in Appellant's closet; its lid was sealed with duct tape. Appellant saw Overby looking at the tub, and volunteered that he kept comic books in it; he said that he had taped the lid to keep moisture out. Overby asked if he could look inside the tub, and Appellant agreed. When Overby pulled back a portion of the tape and lifted a corner of the lid, he saw a girl's shirt—and realized that it matched Appellant's description of the shirt Jamie Bolin was wearing on the day she disappeared.⁴ When Overby commented that he saw no comic books in the tub, Appellant interjected, “Go ahead and arrest me.” Overby immediately responded, “Where is she?” Appellant replied, “She's in there. I hit her and

[252 P.3d 231]

chopped her up.” Appellant then became visibly upset, began hyperventilating, and exclaimed, “I'm going to burn in Hell.” He was placed under arrest and escorted out to the agents' vehicle. Agent Overby summoned local authorities to secure the scene.

¶ 5 Back at the police station, Appellant was advised of his right to remain silent, and his right to the assistance of counsel during any questioning, consistent with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because he asked for a lawyer, the interview was concluded. About fifteen minutes later (approximately 5:45 p.m.), police approached Appellant and asked if he would reaffirm, in writing, his original verbal consent to a search of his apartment. Appellant agreed, and spent the next few hours sitting in a police lieutenant's office. He conversed with various officers who were sent to guard him, and made some incriminating statements during that time.

¶ 6 Around 9:30 p.m. that evening, Appellant asked to speak with the two FBI agents he had initially talked to (Overby and Maag). Because Appellant had previously asked for counsel, OSBI Agent Lydia Williams visited with him to determine his intentions. Agent Williams reminded Appellant that he had earlier declined to be questioned, and explained that because of that decision, police could not question him any further. Appellant emphatically replied that he wanted to talk to the agents. Around 10:15 p.m., Agents Overby and Maag interviewed Appellant at the police station. Before questioning began, Overby reminded Appellant of his Miranda rights, and Appellant signed a written form acknowledging that he understood them and waived them. When asked if anyone had offered him anything in exchange for agreeing to talk, Appellant replied that one of the officers had predicted things would go better for him if he cooperated. Besides acknowledging his waiver of Miranda rights, Appellant also signed another written consent to a search of his apartment. A video recording and transcript of the interview that followed, which lasted about an hour, was presented to the jury at trial and is included in the record on appeal.

¶ 7 In the interview, Appellant describes how he had recently developed a desire to abduct a person, sexually molest them, eat their flesh, and dispose of their remains. He explains in considerable detail how he attempted to carry out this plan on Jamie Bolin, whom he had decided was a convenient victim. Appellant stated that he invited Jamie into his apartment to play with his pet rat. Once Jamie was inside, Appellant hit her on the back of the head several times with a wooden cutting board; she screamed in pain and begged him to stop. Appellant proceeded to suffocate the girl by sitting on her and placing his hand across her face. Appellant told the agents that this was not an easy task, and that fifteen to twenty minutes passed before she succumbed. Appellant claimed he then attempted to have sexual relations with the girl's body, but was unable to perform. He then moved her body to the bathtub and attempted to decapitate it with a knife, but was unsuccessful at that task as well. Frustrated, Appellant wrapped Jamie's body in plastic sheeting and placed it in a large plastic container which he hid in his closet. Appellant also dismantled Jamie's bicycle and hid it inside his apartment, to make it look as if she had left the apartment complex.

¶ 8 Jamie Bolin's remains were taken to the Medical Examiner's office for an autopsy. The Medical Examiner noted bruises to the back of the girl's head, consistent with Appellant's claim that he hit her forcefully with a cutting board. The examiner also noted petechia in the girl's eyes, and curved marks on her face, consistent with Appellant's description of how he had suffocated her. The most pronounced wound on the body was a very deep incision to Jamie's neck, which was also consistent with the injuries Appellant admitted to inflicting. The Medical Examiner also noted trauma to the girl's genital area, including tearing of the hymen. However, the Medical Examiner could not say that Jamie was alive, or even conscious, when her neck was cut or when she was sexually assaulted. The official cause of death was declared to be asphyxiation.

¶ 9 In the punishment stage of the trial, the State presented brief victim-impact testimony

[252 P.3d 232]

from Jamie Bolin's parents. It incorporated the testimony from the guilt stage to show that the murder was especially heinous, atrocious, or cruel. The defense presented extensive evidence in mitigation of sentence, including the testimony of family, friends, and three experts who had evaluated Appellant's mental health. In rebuttal, the State presented its own mental-health expert, who had reviewed the findings of the defense experts. The State's expert did not disagree with the defense experts' diagnoses, and concurred with many of their findings, but disagreed on some points and explained why, in his opinion, Appellant constituted a continuing threat to society. In the end, the jury rejected the “continuing threat” allegation, but found that the heinous nature of the killing warranted the death sentence.

¶ 10 Additional facts will be presented when relevant to the discussion below.

DISCUSSION

¶ 11 Appellant raises thirteen propositions of error....