Walker v. State
| Citation | 723 P.2d 273,1986 OK CR 116 |
| Decision Date | 22 July 1986 |
| Docket Number | No. F-84-795,F-84-795 |
| Parties | Gary Alan WALKER, a/k/a Gary Alan Edwards, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Gary Alan Walker, a/k/a Gary Alan Edwards, was charged in the District Court of Tulsa County, Case No. CRF-84-2088, with the offense of Murder in the First Degree. He was convicted by a jury, and punishment was assessed at death by lethal drug injection. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.
On May 8, 1984, Pricilla Crane discovered the body of her father, Eddie Cash, dead on the livingroom floor of his Broken Arrow home. A crime scene investigation revealed several lacerations on Mr. Cash's head, and the cord to a vacuum cleaner tied tightly around his neck. A brick covered with blood was found on a coffee table near the body. An autopsy revealed that Mr. Cash died from multiple blunt force injuries to the head, and ligature strangulation. The head injuries were consistent with those which might be inflicted with a brick.
Police investigation of the crime resulted in the arrest of the appellant. Following his arrest, the appellant gave a detailed confession to the police. He stated that he had met Mr. Cash on May 6, 1984, when Mr. Cash gave him a ride to Owasso. During the trip to Owasso, the appellant decided to go to Mr. Cash's home and burglarize it. Mr. Cash had informed the appellant that he lived in Broken Arrow. After obtaining Mr. Cash's address by calling directory assistance, the appellant went to the residence. As the appellant stood on the front porch and knocked on the door to make sure no one was home, Mr. Cash pulled into his driveway. Appellant ran, fearing that Mr. Cash would call the police. Appellant discovered a brick at the side of the residence, and returned to the front door. He knocked on the door, gained entry to the house, and killed Mr. Cash with the brick and vacuum cleaner cord. Appellant took several items from Mr. Cash's residence, including the victim's van and shoes. The van was later recovered by the Oklahoma State Bureau of Investigation. Appellant told Detective James L.R. Brown of the Tulsa Police Department that
Appellant raised the insanity defense. He produced the testimony of several witnesses alleging abuse he suffered at the hands of his step-father, Otis Walker, psychological trauma resulting from the recent death of his brother, his various prior convictions, and his past record of mental illness. Dr. Thomas Goodman, a psychiatrist, concluded that, although the appellant had the ability to know right from wrong at the time of the killing, the appellant believed Mr. Cash to be his step-father, and that it was not wrong to kill him.
At the second stage of trial, the State alleged the existence of two aggravating circumstances in support of the death sentence, to wit: (1) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and (2) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1981, § 701.12(5) and (7). The State produced evidence that, at the time of this homicide, the appellant had committed three other murders. It also produced a statement by the appellant that he would kill again. The jury found only the second aggravating circumstance, but assessed the death penalty.
In his first assignment of error, the appellant maintains that the trial court erred in refusing to grant his motion for a change of venue. This ruling, according to the appellant, resulted in him being denied the due process of law, inasmuch as he was thereby deprived of his right to a fair and impartial jury.
The facts relating to this issue reveal that on November 5, 1984, the appellant filed his motion for a change of venue from Tulsa County. Attached to the motion were five (5) affidavits. These affidavits expressed the belief that the appellant could not recieve a fair trial in Tulsa, due to the amount of newspaper articles and T.V. broadcasts regarding the appellant and his alleged crimes. The trial court refused to rule on the motion until after the completion of voir dire examination, and defense counsel concurred in that decision. After the jury was selected, the trial court overruled the motion, and the case proceeded to trial.
In answering this allegation, the State first asserts that the motion was not presented to the trial court in the proper form, and, therefore, the allegation has been waived. We disagree.
Title 22 O.S.1981, § 561 states:
Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the district attorney and the truth of the allegations in such petition be supported by the affidavits of at least three credible persons, who reside in said county. The district attorney may introduce counter affidavits to show that the persons making affidavits in support of the application are not credible persons and that the change is not necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application; and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court. When there are several defendants in any indictment or criminal prosecution, and the cause of the removal thereof exists only as to one or more of them, the other defendants shall be tried and all proceedings had against them in the county, in which the case is pending, in all respects as if no order of removal had been made as to any defendant.
In its brief-in-chief, the State argues that none of the individuals who signed the affidavits were "credible" persons within the meaning of the statute. Regarding one of the affidavits, we agree. The affidavit in question was signed by a resident of Creek County. Section 561 clearly states that the affiants must be residents of the county in which trial is pending. However, the State's assertion about three of the other affidavits is incorrect. The State claims that these three affidavits "were executed by persons sympathetic to the defense and not qualified to serve as jurors: all affiants were criminal defense attorneys." Brief of Appellee at 8. We first note that section 561 does not require the affiants to be eligible for jury service; it simply requires that he or she be "credible." Second, we reject out-of-hand any suggestion that some attorney, merely by virtue of their specialties in practice, are not credible persons. Such a suggestion is an insult to the bar in general, and, in particular, to those lawyers who engage in the defense of criminal cases. We believe that the motion was properly filed and presented to the trial court in correct form.
Although we disagree with the State's contention that the affidavits were improper, we concur with the Attorney General's assertion that the mere existence of the affidavits is not dispositive of this issue. We have "held as early as 1916, and consistently since, that the affidavits raise a question just as any other question of fact that might be submitted to the trial judge, and unless it is clear that he has abused his discretion, or committed error in his judgment, his finding and judgment will not be disturbed by this Court." Johnson v. State, 556 P.2d 1285, 1289 (Okl.Cr.1976). See also Jefferson v. State, 675 P.2d 443 (Okl.Cr.1984).
Turning to the merits of the appellant's due process claim, we find that it must be disallowed. The United States Supreme Court has set forth a two-part test for appellate review of alleged due process violations due to prior knowledge by jurors and pre-trial publicity. See Murphy v. Flordia, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). First, there are cases in which prejudice will be presumed, if the fact pattern reveals "the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings." 1 Id. at 799, 95 S.Ct. at 2035. The key to this standard appears to be the "solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob." Id. at 799, 95 S.Ct. at 2036. If the facts are not sufficiently egregious to give rise to the presumption, the so-called "totality of circumstances" will be examined to determine whether the defendant received a trial which was "fundamentally fair." Id. A review of the case should focus on the voir dire statements of the individual jurors, voir dire statistics, and the community atmosphere as reflected in the news media. Id. at 800-08, 95 S.Ct. at 2036-38.
In this case, the facts do not appear at all similar to the egregious situation which developed in the Rideau, Estes, and Sheppard cases, cited in the margin at n. 1. We refuse to apply the presumption that a due process...
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