Warner v. State

Decision Date20 April 2001
Docket NumberNo. F-99-385.,F-99-385.
Citation29 P.3d 569,2001 OK CR 11
PartiesCharles Frederick WARNER, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Steve Huddleston, Phil Winters, Robert Carpenter, Oklahoma City, OK, for Appellant at trial.

Lou Keel, David Prater, Oklahoma City, OK, for the State at trial.

Lee Ann Jones Peters, Timothy J. Gifford, Oklahoma Indigent Defense System, Norman, OK, for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, for Appellee on appeal.

OPINION

STRUBHAR, Judge:

¶ 1 Appellant, Charles Frederick Warner, was convicted of First Degree Murder and First Degree Rape, in the District Court of Oklahoma County, Case No. CF-97-5249, after a jury trial held before the Honorable Virgil C. Black. As to the count of First Degree Murder, the State filed a Bill of Particulars alleging two aggravating circumstances: 1) that the murder was especially heinous, atrocious or cruel;1 and 2) the existence of a probability that Appellant would commit 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 murder conviction. The jury assessed punishment at nine hundred ninety-nine years imprisonment on the rape conviction. The trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has perfected his appeal.3

FACTS

¶ 2 In August of 1997, Shonda Waller and her eleven month-old daughter, Adriana Waller, lived in Oklahoma City with Appellant and his three children, seven year old Charvon, five year old Vonita and two year old Dasia. At about 7:30 a.m. on August 22, Appellant left the house to go pay a traffic ticket. When Shonda woke up at 8:00 a.m., she stayed in bed and played with Adriana for a while. Adriana was her normal, playful self and did not seem to be experiencing any type of discomfort. When Shonda changed Adriana's diaper that morning, she did not notice anything wrong with Adriana. After Shonda got up, she made sandwiches for the kids and for Appellant when he came home. Shonda and Appellant had planned to go grocery shopping with all of the children that morning but Appellant suggested that she go by herself and leave the children with him at the house. Shonda left to go shopping around noon. She arrived back at the house with the groceries at around 2:30 p.m. She looked in on Adriana and saw her laying on the bed. A short time later Shonda told Appellant that she wanted to go pay to have the telephone connected. When Appellant went to get Adriana, he brought her out of the bedroom and said that she wasn't breathing. Shonda grabbed Adriana and asked Appellant to drive them to the hospital. On the way to the hospital Shonda performed CPR on her daughter.

¶ 3 When Shonda carried Adriana into the emergency room of Mercy Health Center in Oklahoma City, Adriana appeared lifeless. Resuscitation efforts by medical personnel failed and she was pronounced dead approximately forty minutes later. Emergency room nurses proceeded to clean the baby. When nurse Robin Jones was changing Adriana's diaper, she noticed bright red blood around the child's anus and tears in the child's rectum. The injury appeared recent as there were no scabs or signs of healing. At this point post-mortem care stopped and the police were called.

¶ 4 From the autopsy, the forensic pathologist opined that head and abdominal injuries had caused the child's death. She testified that the injuries were probably inflicted upon the child within an hour of her death, although they could have been inflicted up to three hours before she died.

¶ 5 The police interviewed Appellant late in the day on August 22 and into the early morning on August 23. Appellant was subsequently arrested, charged and convicted of the crimes which are the subject of this appeal.

PROPOSITIONS

¶ 6 On appeal, Appellant raises eighteen propositions of error. In his second proposition, he alleges error which requires that this case be reversed and remanded for a new trial. Thus, this Court will not reach the merits of the other claims which do not require relief. As we are granting relief in this case, we find that Appellant's motions for evidentiary hearings4 are moot and need not be addressed. In his second proposition Appellant contends the trial court abused its discretion in refusing to remove for cause prospective jurors Thomas Owen and Scott McKinnis. He claims questioning in voir dire established that each of these prospective jurors possessed an actual bias which required dismissal for cause. "Actual bias is present when a juror's views `prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.'" Young v. State, 1998 OK CR 62, ¶ 9, 992 P.2d 332, 337, cert. denied, 528 U.S. 837, 120 S.Ct. 100, 145 L.Ed.2d 84 (1999), quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985)

. This Court has held that the trial judge enjoys broad discretion in deciding which members of the venire possess actual bias and should be excused for cause. Young, 1998 OK CR 62, at ¶ 9, 992 P.2d at 337. However, we have also espoused the rule that "all doubts regarding juror impartiality must be resolved in favor of the accused.... [This] rule is intended to apply to both the trial courts and the Court of Criminal Appeals." Hawkins v. State, 1986 OK CR 58, ¶ 5, 717 P.2d 1156, 1158 (citations omitted). See also Simpson v. State, 1992 OK CR 13, ¶ 20, 827 P.2d 171, 175. Further, a juror who cannot impartially decide guilt violates his oath and this is a proper challenge for cause. Id. See also Dutton v. State, 1984 OK CR 12, ¶ 9, 674 P.2d 1134, 1138,

cert. denied, 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 850 (1984).

¶ 7 Appellant first complains that the trial court abused its discretion in declining to remove prospective juror Owen for cause because Owen was a ten year veteran police officer who was biased in favor of the prosecution.5 During voir dire it was established that Owen knew three of the detectives associated with this case. He had worked with Detective Edwards eight years ago and he knew Detectives Meadows and Loftis. When questioned by defense counsel, Owen agreed that he would tend to give great weight to the police officers' testimony. He also agreed it was possible he would give the police officers more weight and credibility. In response to these statements, defense counsel asked that Owen be removed for cause. The trial court then questioned Owen and asked him, "If he [Detective Edwards] came in and testified, would you tend to give his testimony more credence because you know him, even if he said something absurd?"6 Owen responded, "Not if he were to say something absurd."7 The trial court's voir dire of Owen did nothing to abate concerns that Owen was biased in favor of the police officers whom he knew and with whom he had worked. To the contrary, it reinforced defense counsel's concerns of bias as it indicated that Owen would give the officers' testimony more credence unless they were to say something absurd. Thus, the record supports Appellant's assertion that Owen was biased toward police officers and accordingly, the trial court abused its discretion in refusing defense counsel's request to remove Owen for cause.

¶ 8 Appellant also complains that the trial court erred in failing to excuse for cause prospective juror Scott McKinnis because he was strongly biased in favor of the death penalty. In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980),

the United States Supreme Court held that the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" The Court added that this standard does not require a juror's bias be proved with "unmistakable clarity." Id. The Supreme Court further addressed the issue in Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492 (1992), wherein the Court held that, "[a] juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do." Such prospective jurors are to be removed from the jury panel for cause. Id. The Morgan and Wainwright decisions require that jurors be willing to go into the trial with no preconceived notions regarding the appropriate penalty, death or life.

¶ 9 The record in the present case reflects that prospective juror McKinnis stated at the beginning of his voir dire that he had a "strong bias towards the death penalty."8 He went on to indicate that he had difficulty conceiving of a situation where the death penalty would not be appropriate for someone convicted of this type of crime. After questioning by the trial court, McKinnis stated that he thought he could give both sides a fair trial and he would consider all three punishment options. However, he again indicated that he had a strong bias toward the death penalty. When the prosecutor questioned him, McKinnis indicated that although the child's involvement made it worse, he was biased in favor of the death penalty for murder in general. Finally, when questioned by defense counsel, McKinnis again affirmed that he was not predisposed toward a finding of guilt, but upon such a finding, he was biased toward the death penalty. Defense counsel noted that McKinnis had stated he could consider all three punishments, but when asked directly whether he could fairly consider all...

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