Wackerly v. State, F-98-554.

• Decision Date: 11 August 2000
• Docket Number: No. F-98-554.,F-98-554.
• Citation: 2000 OK CR 15,12 P.3d 1
• Parties: Donald Ray WACKERLY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

12 P.3d 1

2000 OK CR 15

Donald Ray WACKERLY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-98-554.

Court of Criminal Appeals of Oklahoma.

August 11, 2000.

Rehearing Denied October 10, 2000.

Steven D. Hess, Oklahoma Indigent Defense System, Capital Trial Division, Norman, Larry W. Tedder, Oklahoma City, For Appellant at Trial.

Darrell Dowty, Tahlequah, for the State at Trial.

Katherine Jane Allen, Kimberly D. Heinze, Michael D. Morehead, Oklahoma Indigent Defense System, Capital Direct Appeals Div., Norman, for Appellant on Appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, for Appellee on Appeal.

OPINION

STRUBHAR, Presiding Judge:

¶ 1 Appellant, Donald Ray Wackerly, was convicted of First Degree Murder and First Degree Robbery, in the District Court of Sequoyah County, Case No. CF-96-349, after a jury trial held before the Honorable John Garrett. As to the count of First Degree Murder, the State filed a Bill of Particulars alleging two aggravating circumstances: 1) that the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution;¹ and 2) the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society.² The jury found the existence of each of the alleged aggravating circumstances and assessed punishment at death on the First Degree Murder conviction. The jury assessed punishment at life imprisonment on the First Degree Robbery conviction. The trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has perfected his appeal.³

FACTS

¶ 2 On the afternoon of September 7, 1996, Appellant and his wife, Michelle Wackerly, drove to a lock and dam area near Muldrow. They were looking for a person to rob and kill. The preceding night, Appellant had told his wife that they needed money and he was going to do whatever it took to get it. As he said this, Appellant, wearing latex gloves, loaded his rifle. When they were driving around the following afternoon, they saw a blue Toyota pickup parked by a levy and an Asian man fishing on the other side of the levy. Appellant parked his Jeep by the blue pickup and Michelle got out and walked around to look for other people in the area. Seeing none, she approached the man and spoke to him for about five minutes. She then went back to where the vehicles were parked. After forty-five minutes the man came back over the levy carrying his fishing gear. Appellant had raised the hood of his Jeep and asked the man if he had jumper cables to give him a jump. Knowing what was going to happen, Michelle knelt down behind the Jeep. She heard seven or eight gun shots and a thump. When she walked back around the Jeep, she saw that the man was in the bed of his pickup and Appellant was trying to pull a fishing pole out from under him. Michelle heard the man still trying to breath. Appellant drove the man's truck to another location where he drove it into the water. Along the way he threw some of the man's fishing poles into a wooded area. He kept the man's reels and a tackle box. A couple of days later, Appellant took the reels to Rocky's Pawn Shop in Roland. He kept the tackle box.

¶ 3 Around 12:30 a.m. on September 8, 1996, while Dennis Butler and his nephew, Rodney, were four-wheeling near a dam on the Arkansas river, they came upon a truck that was partially submerged in the water. A body was lying in the truck bed. They went back to Rodney's house and called the sheriff's department to report what they had seen. Dennis and Rodney escorted law enforcement officers to the truck where subsequent investigation revealed that Pan Sayakhoummane had been shot and was dead in the bed of the truck.

¶ 4 The investigation led to no suspects in this case until several months later. In December of 1996, Michelle Wackerly, Appellant's then estranged wife, along with her attorney, met with OSBI agents Franchini and Page. Michelle told the OSBI agents what had happened and she took them to where the murder had occurred. Pursuant to Michelle's information, agents retrieved fishing reels from Rocky's Pawn Shop. The owner of the shop confirmed that Appellant had pawned the reels. Appellant's apartment was searched and the search revealed, among other things, a .22 rifle, a box of ammunition with some bullets missing, some latex gloves, and the victim's tackle box. Michelle also directed the agents to the fishing poles that Appellant had thrown from the victim's truck into the woods.

VOIR DIRE ISSUES

¶ 5 Although most of the voir dire proceedings were conducted in open court on the record, that portion of voir dire where the parties exercised peremptory challenges was held in chambers and off the record. Appellant complains in his fourth proposition that this failure to maintain a complete record in a capital case was error which requires reversal. In support of his position he cites to decisions of this Court where relief was granted in capital cases upon a finding that the trial record was incomplete. See Conover v. State, 1999 OK CR 26, 990 P.2d 291

(reversal of sentencing stage was required where significant portions of the transcript, including the death qualifying portion of voir dire, were missing); Van White v. State, 1988 OK CR 47, 752 P.2d 814 (failure to transcribe voir dire required reversal as such failure prevented this Court from determining whether the trial court erred in excluding prospective jurors under Witherspoon v. Illinois⁴ and Wainwright v. Witt⁵). Appellant recognizes, however, that this Court has also held that a lack of record alone will not warrant reversal. See Parker v. State, 1994 OK CR 56, ¶¶ 26-27, 887 P.2d 290, 295 (Court failed to find reversible error where bench conferences were not recorded as no allegations of evidentiary error were alleged and lack of record of bench conferences did not hinder Court's ability to conduct the mandatory sentence review).

¶ 6 In the present case, Appellant alleges that reversal is warranted as a result of the failure to transcribe the exercise of peremptory challenges because without a record to review, it cannot be determined whether Witherspoon or Batson⁶ issues exist which could have been raised. The omission from the record of the exercise of peremptory challenges does not affect counsel's or this Court's ability to review for Witherspoon issues. The death qualifying portion of the voir dire proceedings, including challenges for cause, has been preserved in the record.

¶ 7 With regard to Appellant's claim that the prosecutor may have exercised peremptory challenges in violation of Batson, we note that this Court held, in Black v. State, 1994 OK CR 4, ¶ 23, 871 P.2d 35, 42, where the peremptory challenges were off the record and there was no way to ascertain what, if any, reason was given for the dismissal of potential jurors, that Appellant waived his Batson challenge by failing to make a timely objection at trial. Accordingly, this Court can only review the record for fundamental error, viewing the pertinent facts in the light most favorable to the trial court's rulings. Id.

¶ 8 Appellant notes that it is apparent from the record that of the four Native Americans in the panels of potential jurors, two were struck by the State's use of peremptory challenges. The State argues that race neutral reasons for dismissing the two Native American jurors are evident from the record as both potential jurors had friends or relatives who had been or were being prosecuted for murder and both expressed a hesitation to impose the death penalty.⁷ Under these circumstances, combined with the lack of objection by defense counsel who was privy to the off-the-record conference at which the jurors were struck, we hold Appellant has not successfully raised an inference the prosecutor used peremptory challenges to strike jurors based upon race. We therefore find no fundamental error, as we are not left with "a definite and firm conviction that a mistake has been committed." Hernandez v. New York, 500 U.S. 352, 369-370, 111 S.Ct. 1859, 1871-72, 114 L.Ed.2d 395, 412-13 (1991) (plurality opinion). This proposition warrants no relief.

¶ 9 Appellant argues in his eleventh proposition that his constitutional rights were violated by the trial court's failure to remove, sua sponte, jurors who would automatically vote for the death penalty. He specifically complains that six jurors should have been removed for cause when they indicated that they were unable to consider fairly the lesser penalties of life and life without the possibility of parole. This Court has held that "[i]t is the duty of counsel to examine jurors on voir dire. Counsel then must discover any facts affecting their qualifications and then reasonably raise any objection that might exist as to any member of the panel." Tate v. State, 1995 OK CR 24, ¶ 33, 896 P.2d 1182, 1191. Failure to do so waives all but plain error. Id. However, this Court has also held that "[t]he failure of the trial court to remove a prospective juror who unequivocally states that he is unwilling to follow the law during the penalty phase by considering a life sentence is error." Ross v. State, 1986 OK CR 49, ¶ 11, 717 P.2d 117, 120, cert. granted, 482 U.S. 926, 107 S.Ct. 3209, 96 L.Ed.2d 696 (1987).

¶ 10 Of the six potential jurors at issue, four were removed by the defense through the exercise of peremptory challenges and only two, Jurors Sumoeter and Stuart, remained on the jury. Appellant cannot complain about the four potential jurors who did not sit on the jury. See Tate, 1995 OK CR 24,

at ¶ 34, 896 P.2d at 1191. Further, he has failed to show how the use of his peremptory challenges on these four potential jurors prejudiced him. Id.

¶ 11 As to the remaining jurors, Sumoeter and Stuart, the record reveals that while each of these jurors expressed a clear ability to vote for the death...