Van White v. State

• Decision Date: 10 March 1999
• Docket Number: No. F-89-566.,F-89-566.
• Parties: Stephen VAN WHITE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

990 P.2d 253

1999 OK CR 10

Stephen VAN WHITE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-89-566.

Court of Criminal Appeals of Oklahoma.

March 10, 1999.

Thomas C. Giulioli, District Attorney, Gregory R. Stidham, Patrick Moore, Assistant District Attorneys, Okmulgee County Courthouse, Okmulgee, Oklahoma, for the State at trial.

Lawrence W. Parish, Joel Butterworth, Henryetta, Oklahoma, for the Defendant at trial.

Jamie D. Pybas, Julie L. Gardner, Appellate Defense Counsel, Norman, Oklahoma, Attorneys for Appellant on appeal.

Susan Brimer Loving, Attorney General of Oklahoma, A. Diane Blalock, Assistant Attorney General, Oklahoma City, Oklahoma, Attorneys for Appellee on appeal.

OPINION

JOHNSON, Judge:

¶ 1 On December 22, 1982, Stephen Van White,¹ Appellant, was charged in Okmulgee County District Court Case No. CRF-82-375 with Murder (malice aforethought) in the First Degree (Count I), Assault and Battery with Intent to Kill (Count II), Robbery with a Dangerous Weapon (Count III) and Attempted Rape (Count IV). Jury Trial began on May 21, 1984. The jury found Mr. White guilty on all counts and sentenced him to death on Count I after finding three aggravating circumstances. Appellant received twenty years imprisonment on Count II and life imprisonment on both Counts III and IV. Judgments and Sentences were imposed in accordance with the jury's verdicts on June 15, 1984.

¶ 2 On direct appeal in Case No. F-84-557, Counts II, III and IV were affirmed and the murder conviction was reversed and remanded for a new trial. Van White v. State, 1988 OK CR 47, 752 P.2d 814. On April 13, 1989, the State filed an Amended Bill of Particulars alleging four aggravating circumstances. Mr. White was tried by jury on May 15-19, 1989, and convicted of First-Degree Murder. At the conclusion of the punishment stage, the jury found each of the four alleged aggravating circumstances and sentenced Appellant to death. The trial court entered Judgment and Sentence in accordance with the jury's verdicts on June 2, 1989. Appellant has perfected his appeal to this Court.

FACTS

¶ 3 On December 22, 1982, Ms. Lorene Jackson was shopping in downtown Okmulgee. She entered the Waggin Tail Thrift Shop as she was accustomed to doing when she was in the area. When she entered, it appeared that no one was in the store. She called out a greeting and when no one answered she began to get a chill. She considered exploring the store, but sensing something was wrong she left the store to get help. As she was exiting the store, she saw what appeared to be blood on the floor. Ms. Jackson then called to James Draper who was across the street washing his cab. Mr. Draper came in response to her call.

¶ 4 Mr. Draper went in the store to investigate. Mr. Draper saw blood and what appeared to be an upper plate of false teeth lying on the floor. This so alarmed Mr. Draper that he went back outside and called the police.

¶ 5 Okmulgee police arrived and conducted a complete inspection of the house. The body of Geraldine Dennis was found lying in front of the closet in the second bedroom. She was covered with blood, still alive, and was transported to a hospital in Tulsa. The officers next discovered the partially nude body of Shirley Mann, an employee of the store. She was lying in a pool of blood in a darkened bathroom and was not alive.

¶ 6 In the late afternoon of the same day, Appellant checked into the El Rancho Motel in Okmulgee. He asked the motel owner if he could change twenty-seven dollars worth of coins. After hearing about the murder of Shirley Mann on television, the motel owner, Mr. Milligan, called the police department to inquire if a large amount of change had been taken in the robbery/murder.

¶ 7 The following day, Okmulgee Police Detective Perry Harkrider and OSBI² Agent Proctor were patrolling the city. The officers had information that a Native American male had been seen in the area of the homicide. These officers spotted Appellant walking down the street and stopped to talk with him. Upon seeing the officers get out of their car, Appellant raised his hands in the air, turned around and leaned spread-eagled against a wall. The officers turned Appellant around and one of them noticed that his tennis shoes were stained with what appeared to be blood. They asked and Appellant agreed to go to the police station with them for questioning.

¶ 8 At the station, Appellant was given his Miranda³ rights and questioned about the Mann homicide. Appellant initially told the officers that he had been in the immediate area, but denied going into the Waggin Tail. He consented to the taking of certain physical evidence which took place at the Okmulgee Hospital. Appellant was returned to the police department where he was placed under arrest. When OSBI Agent Proctor told Appellant he was under arrest for First Degree Murder, he dropped his head and said, "I did it." His subsequent confession was recorded, transcribed and entered into evidence.

¶ 9 Geraldine Dennis testified that she went into the Waggin Tail Thrift Shop and she was followed in by a man. After they entered the store, the man slammed the door and pulled a knife out of his pocket. The man, later identified as Appellant, began stabbing Mrs. Dennis in the neck, chin, inside the mouth and above the eyes. Mrs. Dennis' dentures came out of her mouth and her eyeglasses came off. Mrs. Mann, whom Mrs. Dennis had seen when she entered the store, went to a phone across the room. Appellant stopped attacking Mrs. Dennis and went after Mrs. Mann. Appellant disabled Mrs. Mann so that she could not use the phone and went back to attacking Mrs. Dennis. Mrs. Dennis fell to the floor and then saw Appellant go to Mrs. Mann. He put a knife in her back and forced Mrs. Mann to the back of the building. Mrs. Dennis heard Mrs. Mann say, "You shouldn't do this to me. I have cancer." Mrs. Dennis crawled behind a desk, and hid in a curtained off closet. Appellant later returned to her and pulled her out of the closet. Mrs. Dennis lost consciousness and did not awaken until she was in the intensive care unit at the hospital in Tulsa. With respect to Mrs. Mann, it was later determined that Appellant had also attempted to rape her after he had stabbed her to death.

¶ 10 Other pertinent facts will be discussed in the context of the assignments of error to which they relate.

PRETRIAL ISSUES

¶ 11 On January 26, 1995, Appellant filed a motion requesting leave to present two additional assignments of error. Appellant's request was granted by Order of this Court on January 30, 1995. We find no merit in either of these additional propositions of error. Furthermore, we will only address Appellant's assertion that based upon an intervening change in the law, the Information was not legally sufficient to confer subject matter jurisdiction on the trial court.

¶ 12 A specific reference is made at the top of the Information to Title 21 O.S., § 701.7 which is the First Degree Murder statute and the jury was only instructed on malice aforethought murder. Defense counsel did not object to the "malice aforethought" instructions. Relying upon Pickens v. State, 1994 OK CR 74, 885 P.2d 678, Appellant now contends the Information in the present case was clearly insufficient.

¶ 13 We find the Information in the instant case clearly set forth sufficient facts to allege the critical elements of first degree murder. This Court in Pickens applied Miller v. State, 1992 OK CR 8, 827 P.2d 875, which required a criminal Information to set forth facts to allege each element of the crime charged. This Court rejected Miller in Parker v. State, 1996 OK CR 19, ¶ 21, 917 P.2d 980, 986. We concluded that any failure to allege facts constituting an offense raises due process questions, but does not automatically affect the trial court's jurisdiction. Id. at 985. Consequently, our review now focuses on whether the Information gave Appellant notice of the charges against him and apprised him of what he must defend against at trial. Id. at 986. This Court stated that this determination will be made on a case-by-case basis. Id.

¶ 14 In the instant case, Appellant never objected to the Information at trial. Nonetheless, Appellant now claims that the charging document was deficient because it used the term "premeditated design" instead of "malice aforethought." The subject trial was Appellant's second trial for Murder in the First Degree. On his first direct appeal, Counts II, III and IV were affirmed and the murder conviction was reversed, on other grounds, and remanded for a new trial. Van White v. State, 1988 OK CR 47, 752 P.2d 814. Appellant was again tried by jury for First Degree Murder on May 15-19, 1989.

¶ 15 Upon looking to the "four corners" of the Information together with all of the materials that were made available to Appellant at preliminary hearing and through discovery, we find Appellant received sufficient notice of the charge against him in the present case. In addition, we find that the specific intent element of the crime of Murder in the First Degree pursuant to 21 O.S.1991, § 701.7(A), was sufficiently alleged by the use of the term "premeditated design."

¶ 16 The voluminous record from the two trials is replete with notice of the nature of the crime charged. It is clear that Appellant understood he was charged with malice aforethought murder. Furthermore, it is clear that all the parties involved in this case believed Appellant was charged with malice aforethought murder. Accordingly, we find that the irregularity in Appellant's Information does not require reversal and we find that no due process violation occurred. Therefore, this proposition of error must fail.

COMPETENCY TO STAND TRIAL

¶ 17 On May 15, 1996, after oral argument in this case, Appellant, by and through his appellate counsel, filed a "Notice of Change In The Law and Motion For Leave to Present An Additional Assignment of Error." Specifically, App...