Warner v. State

Decision Date26 September 2006
Docket NumberNo. D-2003-829.,D-2003-829.
Citation144 P.3d 838,2006 OK CR 40
PartiesCharles Frederick WARNER, Appellant v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Tamra Spradlin, Gina Walker, Assistant Public Defenders, Oklahoma City, OK, Counsel for Appellant at Trial.

Wesley Lane, District Attorney, Lou Keel, Robert Swartz, Assistant District Attorneys, Oklahoma City, OK, Counsel for the State at Trial.

Wendell B. Sutton, Assistant Public Defender, Oklahoma City, OK, Counsel for Appellant on Appeal.

W.A. Drew Edmondson, Attorney General Of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, Counsel for the State on Appeal.

OPINION

LUMPKIN, Vice-Presiding Judge.

¶ 1 Appellant Charles Frederick Warner was tried by jury and convicted of First Degree Murder (Child Abuse) (Count I) (21 O.S.1991, §§ 701.7 and 843) and First Degree Rape (Count II) (21 O.S.1991, §§ 1111 and 1114), Case No. CF-97-5249, in the District Court of Oklahoma County. In Count I, the jury found the existence of two aggravating circumstances and recommended the punishment of death. In Count II, the jury recommended a sentence of seventy-five (75) years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.1

¶ 2 Appellant was charged and convicted of the first degree rape and murder of 11 month old Adrianna Waller. The victim and her mother, Shonda Waller, lived with Appellant and his two children, six year old Charvon and five year old Vonnita. Two year old Dashja, Appellant's daughter from another relationship, stayed with them on occasion. On August 22, 1997, Appellant left early that morning to pay a traffic fine at city court. He returned home at approximately 10:00 to 10:30 a.m. Ms. Waller prepared lunch for Appellant and the older children and fed the victim baby food. At approximately noon, Ms. Waller left for the grocery store. All four children remained at home with Appellant. At the time Ms. Waller left, the victim was dressed in a jumpsuit. Ms. Waller returned home at approximately 2:00 to 2:30 p.m. She glanced in the master bedroom and saw the victim lying on the bed. The victim appeared to be sleeping. Ms. Waller noticed the victim was dressed only in her diaper. Later that afternoon, Appellant and Ms. Waller decided to take all the children with them to run errands. Ms. Waller intended to get the victim ready but Appellant stopped her and volunteered to retrieve the victim from the bedroom. Appellant returned to the living room holding the victim and saying that she was not breathing. When Appellant handed the victim to Ms. Waller, the victim was limp. Ms. Waller began screaming and told Appellant to take them to the emergency room. Appellant drove Ms. Waller and all the children to the emergency room. On the way, Ms. Waller gave the victim CPR.

¶ 3 They arrived at the hospital at approximately 3:40 p.m. Emergency personnel took the victim and continued resuscitation efforts. All efforts failed and the victim was pronounced dead at 4:07 p.m. Emergency charge nurse Robin Justice was cleaning the victim before Ms. Waller saw her when she noticed bright red blood around the victim's rectum and tears to the rectum. Ms. Justice testified at trial that the injuries appeared to be fresh and recent. She called police and notified the attending physicians Drs. McCreight and Hill.

¶ 4 Dr. McCreight observed bright red blood staining the skin around the victim's rectum and tears around the rectum. X-rays indicated two skull fractures, one of which was depressed, and two fractures to the left jaw. Dr. McCreight testified that the injuries were recent, consistent with a violent shaking and inconsistent with a fall from a bed to a carpeted floor. He also testified that upon sustaining such injuries, the victim would not be able to eat, drink or play. His diagnosis was sexual and physical abuse.

¶ 5 In conducting the subsequent autopsy, the medical examiner Dr. Choi, determined the cause of death to be multiple injuries to the victim's head, chest, and abdomen. She determined the manner of death to be a homicide. Dr. Choi testified the victim suffered a crushing type injury to her head and internal injuries to her brain. The victim's jaw and three ribs were fractured, her liver was lacerated, and her spleen and lungs were bruised. There were bruises on the victim's chest the size of adult fingertips. She also observed retinal hemorrhages in the victim's eyes, which she testified were consistent with the victim being violently shaken. Additionally, Dr. Choi observed six different tears around the victim's rectum, which she testified were consistent with blunt force penetration. Dr. Choi also testified that upon receiving her injuries, the victim would not have been able to eat, drink or play.

¶ 6 Interviewed first at the hospital, Appellant told officers he brought the victim, her mother, and the children to the emergency room. He said he had been in the master bedroom with the victim and two year old Dashja. He said Dashja gave the victim something to drink. After a while he left the room. When he returned to the bedroom between approximately 2:00 and 3:00 p.m., the victim was lying on the floor crying. He picked her up and noticed she had hit her head. He said she seemed to be dazed. He tried to comfort her and laid her on the bed to sleep. When he returned to get her at approximately 3:30 p.m., she was not breathing. Later, when Appellant was arrested, he complained to officers that the knuckles on his right hand were sore.

¶ 7 In a subsequent search of Appellant's home, officers discovered a sexually explicit videotape in the VCR located in the master bedroom, and a jar of Vaseline and a bottle of aloe vera jel nearby.

¶ 8 At trial, Appellant's son Charvon testified Appellant was the only adult with the children when Ms. Waller went to the store. He said that on the day the victim died, he saw Appellant in the master bedroom shaking her. He said Appellant was often angry with the victim because of her crying and general noisiness. Charvon admitted that he had previously testified the victim died because she was "beat up".

¶ 9 In his defense, Appellant presented eight witnesses. These included medical experts who testified that the victim would have immediately lost consciousness upon sustaining the head injury, her injuries were consistent with hitting her head on a wooden bed frame, and the injuries to her chest could have occurred during CPR. Defense witnesses also testified that Charvon had said he had lied when he said he saw Appellant hit the victim, that Ms. Waller had originally said Appellant drove her to the store and she waited for him to take her home, that Appellant was left handed, and that he took good care of the victim.

¶ 10 During the second stage of trial, in addition to incorporating all evidence from the first stage, the State presented evidence showing that Appellant's four year old daughter Vonnita had been physically abused by Appellant, that Appellant physically punished Charvon and Vonnita by whipping them with a belt or electrical cord, and that Appellant had physically abused his ex-wife Vonricca Warner. In mitigation, Appellant presented thirteen witnesses. The jury found the existence of the two alleged aggravating circumstances, "continuing threat" and "especially heinous, atrocious or cruel" and recommended the death penalty. The trial court sentenced accordingly. Appellant raises eighteen propositions of error in his appeal. These propositions will be addressed in the order in which they arose at trial.2

JURY SELECTION ISSUES

¶ 11 Appellant contends in his second assignment of error that juror misconduct occurred when Juror Scales failed to advise the court during voir dire that she knew second stage defense witness Marcella Andrews. Appellant's argument is supported by affidavits attached to his Motion for a New Trial filed with the District Court. These affidavits allege that it was not until Andrews' second stage testimony did Juror Scales recognize her as someone her sister, Annette Williams, had known for years. These affidavits also allege that Juror Scales was present during conversations her sister had with Michelle Thompson, Andrews' sister and the mother of Appellant's daughter Dashja Warner, about Appellant's case.

¶ 12 The record shows that during voir dire the trial judge read a list of witnesses, which included Andrews' name. The judge then asked the jury panel if they recognized any of the names. Juror Scales made no response. Later on in voir dire, the judge specifically asked Ms. Scales if she knew anything about the case or knew any of the witnesses or people involved. She replied in the negative. Nothing further is contained in the transcript concerning any knowledge Juror Scales may have had of a witness or any objection to Ms. Scales' service on the jury.

¶ 13 Initially, Appellant's argument is based upon information gained from post-verdict interviews and set out in ex parte affidavits. The claim of error and supporting affidavits were included as the twelfth of sixteen allegations raised in the Motion for New Trial filed with the District Court. At formal sentencing, the trial judge noted he had been presented a Motion for New Trial. Defense counsel indicated she wanted to stand on the motion. Therefore, no...

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