Wade v. State

• Citation: 1992 OK CR 2,825 P.2d 1357
• Decision Date: 27 January 1992
• Docket Number: No. F-89-151,F-89-151
• Parties: Forrest Kinzer WADE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1357

825 P.2d 1357

Forrest Kinzer WADE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-89-151.

Court of Criminal Appeals of Oklahoma.

Jan. 27, 1992.

An Appeal from the District Court of Tulsa County; Joe Jennings, District Judge.

FORREST KINZER WADE, Appellant, was tried by jury for the crime of Murder in the First Degree, Counts I and II, in Case No. CRF-86-2326 in the District Court of Tulsa County before the Honorable Joe Jennings, District Judge. The jury found appellant guilty and sentenced him to death, finding the existence of three aggravating circumstances: that appellant was previously convicted of a felony involving the use or threat of violence to the person, that the appellant knowingly created a great risk of death to more than one person, and finally, that there existed a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. The trial court sentenced appellant accordingly and from this Judgment and sentence, appellant appeals. Although we have AFFIRMED appellant's murder convictions, we find that this case must be REMANDED to the trial court for RESENTENCING, with the jury given proper consideration to all three possible punishments for the crime of First Degree Murder.

Johnie O'Neal, Public Defender, Tulsa, for appellant.

Robert H. Henry, Atty. Gen., David Walling, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

JOHNSON, Judge:

FORREST KINZER WADE, appellant, was tried by jury for the crime of Murder in the First Degree, Counts I and II, in Case No. CRF-86-2326 in the District Court of Tulsa County. Appellant was represented by counsel. The jury found appellant guilty and sentenced him to death, finding the existence of three aggravating circumstances: that appellant was previously convicted of a felony involving the use or threat of violence to the person, that the appellant knowingly created a great risk of death to more than one person, and finally, that there existed a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. The trial court sentenced appellant accordingly.

Johnny Brewer and Holly Moore Brewer lived with Robert Kassanavoid and Robin Cart at 2610 East Fifth Street in Tulsa, Oklahoma. On July 4, 1986, the foursome along with their friend Virgil and his cousin, the appellant, were drinking at the house and making their plans for the holiday. Hayley Johnson, Holly's sister, also came to the house and joined the party. During that afternoon everyone went swimming and later that evening they went to a fireworks display at Tulsa's Riverpark. After the fireworks, everyone returned to the house on Fifth Street, where the party continued until the early morning hours of the 5th.

Around midnight, Johnny Brewer and Holly Moore Brewer went to bed. At approximately 1:00 a.m., Gary Chapman, a friend of Robert Kassanavoid, arrived at the house and joined the party. Around 3:00 a.m., Gary Chapman and Hayley Johnson left the house to buy some more beer. When they returned, Robert Kassanavoid was asleep on the couch and the appellant was sitting next to him. At that time, Robert Kassanavoid got up and went to bed.

Gary Chapman, Hayley Johnson and appellant remained in the dining room talking until approximately 7:00 a.m. Suddenly, appellant grabbed Hayley Johnson by the arm and pulled her close to him. Appellant told Ms. Johnson that he felt close to her, like she was his sister, and then he attempted to kiss her. Ms. Johnson pulled away from appellant and returned to Gary Chapman telling him that she was very tired. Mr. Chapman offered Hayley a bed at his house, which she accepted because she felt nervous around appellant.

As Hayley was writing a note to Holly explaining where she was, she observed appellant come up behind Gary Chapman and hit him in the head with a hammer. Mr. Chapman fell instantly to the floor. Appellant then grabbed Hayley by the throat and dragged her into the kitchen. Appellant held a large butcher knife to Hayley's face and told her that he wanted her. Appellant then put the knife on the counter and began hitting Hayley in the face with his fist.

Holly Moore Brewer was awakened by her sister's screams and woke Johnny Brewer. Mr. Brewer ran into the kitchen and grabbed appellant's arm and asked him "to be cool." The appellant then grabbed the butcher knife and stabbed Mr. Brewer in the stomach. Mr. Brewer stated "oh, no", and, according to Hayley, left the kitchen holding his intestines in his hands.

Mr. Brewer staggered in to Robert Kassanavoid's room. Hayley pushed appellant away and entered Robert's room. Mr. Kassanavoid testified that Mr. Brewer was bleeding heavily and his intestines were clearly visible. Mr. Kassanavoid also testified that the appellant ran into his room holding the knife in his hand, looked at him and stated, "don't f*** with me." Appellant then left the house and was apprehended two years later in Virginia.

Officer Sherry Stallings of the Tulsa Police Department was the first officer to arrive at the scene. As Officer Stallings entered the house, she observed Gary Chapman laying on the dining room floor. As she checked for signs of life, she observed a hole in the back of his head. Mr. Chapman was pronounced dead at the scene. Officer Stallings then entered the bathroom where she observed Mr. Brewer, "sitting on the commode with his bowels out in his lap and starting to protrude to the floor." Mr. Brewer was transported to a hospital where he died on July 6, 1986.

I. ISSUES RELATED TO JURY SELECTION

In his first assignment of error, the appellant asserts that the prosecutor committed numerous errors during voir dire of the jury. Initially, appellant asserts that the prosecutor attempted to indicate to the jurors that the death penalty would be justified without any aggravating circumstances. A review of the record reveals that four of the five comments that appellant cites as error were not objected to at trial. Thus, concerning those comments, all but fundamental error has been waived. Weatherly v. State, 733 P.2d 1331, 1338 (Okl.Cr.1987). We have reviewed the questions asked by the prosecutor and find them to be within the proper boundaries of jury voir dire. We have also reviewed the prosecutor's question to which an objection was interposed. The question concerned whether a juror would look for particular factors before considering death as a punishment. The trial court sustained defense counsel's objection. After an unsuccessful attempt to rephrase the question, the trial court directed the prosecutor to move on, which she did. We have reviewed the voir dire and find the prosecutor's inquiry very similar to an earlier question asked by defense counsel to prospective Juror Wynn. It is our opinion that the error, if any, was cured by the action of the trial court.

Appellant next contends that the prosecutor minimized the jury's sense of the importance of its role in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), by asking prospective jurors whether they could "recommend" the death penalty. Appellant argues that by using the word "recommend" the prosecutor implied that the decision to kill would not be decided by their verdict. A review of the record reveals that no objection was entered to any of the comments which appellant now cites as error. Again, all but fundamental error is waived. Weatherly, supra. After a review of the comments, we find that they do not come close to the type of argument condemned in Caldwell. The prosecutor was simply inquiring whether a particular juror could vote for the death penalty if they felt it warranted in a given case. We do not find that a reasonable juror would have felt his or her ultimate responsibility diminished. Indeed, defense counsel specifically made the point to the jury that they were being asked to decide whether the appellant lived or died. We find no error.

Appellant next argues that the prosecutor erred in telling the jury that it could not have any sympathy for him. However, a review of the record reveals that in a poorly worded question, the prosecutor was asking prospective Juror Harris whether she could be an impartial judge of the evidence, despite feeling sorry for the appellant. We find no error. In a related argument, appellant complains that the prosecutor improperly sought sympathy for the victims. Again, this assertion is not supported by the record. During questioning by the trial court, prospective Juror Parker stated that she had a problem with the death penalty, but that she could probably consider such a punishment if something happened to a member of her family. The prosecutor then inquired whether Ms. Parker could consider the death penalty in a case concerning people unrelated to her. We find no error.

Appellant next asserts that the prosecutor committed egregious error in phrasing questions that led a jury to believe the death penalty was automatic. A review of the record reveals that the prosecutor had asked prospective Juror Wynn what her verdict would be if the State proved beyond a reasonable doubt two counts of Murder in the First Degree. Ms. Wynn responded, "[d]eath penalty". The prosecutor then responded by asking whether her verdict would be guilty, to which Ms. Wynn replied in the affirmative. At that point, defense counsel objected to the question, which was sustained as to form by the trial court. It is clear that despite a poorly phrased question, the prosecutor was not inquiring about punishment, but rather, the juror's verdict on guilt. We do not find any inference to the jury by the prosecutor that the death penalty was automatic.

Appellant next argues that the prosecutor erred by intentionally violating a pre-trial Motion in Limine restricting any mention of the number or nature of the aggravating circumstances before the second stage...