Welch v. State

• Decision Date: 10 April 2000
• Docket Number: No. F-98-379.,F-98-379.
• Citation: 2000 OK CR 8,2 P.3d 356
• Parties: Frank Duane WELCH, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2 P.3d 356

2000 OK CR 8

Frank Duane WELCH, Appellant, v. STATE of Oklahoma, Appellee.

No. F-98-379.

Court of Criminal Appeals of Oklahoma.

April 10, 2000.

Rehearing Granted May 17, 2000.

Albert J. Hoch, Oklahoma City, for Appellant at trial.

Scott L. Palk, Tracy Schumacher, Assistant District Attorneys, Norman, for the State at trial.

Janet Chesley, G. Lynn Burch, III, Oklahoma Indigent Defense System, Norman, for Appellant on appeal.

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

OPINION

STRUBHAR, Presiding Judge:

¶ 1 Frank Duane Welch, hereinafter Appellant, was tried by jury and convicted of Murder in the first degree (21 O.S.Supp. 1982, § 701.7(A)), in the District Court of Cleveland County, Case No. CF-97-247, the Honorable Tom A. Lucas, District Judge, presiding. The jury recommended death after finding the murder was especially heinous, atrocious or cruel and that Appellant constituted a continuing threat to society.¹ The trial court sentenced Appellant accordingly. From this Judgment and Sentence, he appeals.²

FACTS

¶ 2 On February 25, 1987, Tracy Cooper arrived at his Norman home around 1:00 p.m. and found his wife, Jo Talley Cooper, lying dead in their living room. She was nude and had leather straps forming a ligature around her neck that also went down her back binding her hands. She had a piece of duct tape covering her mouth and one of her seven-month-old child's toys inserted in her vaginal area. The Coopers' seven-month-old child was unharmed and in his crib in his room.

¶ 3 The physical and circumstantial evidence at trial supported the State's theory that Appellant secured entry into the Coopers' home by posing as a Norman Cablevision employee³ as there were no signs of forced entry and the Coopers' dogs were found secured in the garage, the location where Mrs. Cooper kept them when repairpersons were working who needed access to the backyard. After gaining secure entry, Appellant bound Mrs. Cooper with leather straps and tightened the straps around her neck causing her death by ligature strangulation. Appellant then raped Cooper, shoved a toy pylon into her vagina and left. The medical examiner testified Cooper's anal swab was positive for sperm and that she had perianal peri-postmortem tears which indicated the tears were sustained immediately after or during death. The medical examiner testified that Cooper had also sustained a peri-postmortem vaginal tear which was consistent with a trauma that could be caused by the insertion of a plastic toy like the one found in her vagina. The medical examiner also noted that Mrs. Cooper was approximately twelve weeks pregnant.

¶ 4 This case remained unsolved for approximately ten years until Appellant's name surfaced when his DNA was matched to a similar crime scene in the ten-year-old unsolved Debra Stevens homicide case in Grady County. Thereafter, Norman police detective, Steve Lucas, obtained a sample of Appellant's blood and had DNA testing performed. Appellant's DNA matched the DNA from sperm found on a towel at the Cooper home and charges were filed.

¶ 5 At trial Appellant admitted he killed both Mrs. Cooper and Debra Stevens. He claimed he met Mrs. Cooper during a service call at the Cooper residence when he was working for Norman Cablevision. He testified that they started having an affair shortly thereafter and that he had sex with her on three different occasions. He claimed on the day of her death he went to the Cooper home where Mrs. Cooper was expecting him. He testified she asked him to have anal sex with her and he complied. Following the anal sex, Appellant said he asked her if she would be willing to try sexual asphyxiation like he had read about in magazines. He professed she consented after which he placed the leather straps around her neck and hands. He then tightened the strap around her neck and began having vaginal sex with Cooper from behind. Appellant testified he did not stop immediately when Cooper collapsed because he did not realize she was in distress. When he rolled her over, she was not breathing and had no heartbeat. Because he was a convicted felon with pending charges, Appellant claimed he panicked and decided to make it look like Cooper was attacked. He described how he put more of the strap around her neck, how he duct taped her mouth because he did not like to see blood, how he wiped himself off with the kitchen towel, how he inserted the plastic toy in Cooper's vagina and how he left the Cooper home. ¶ 6 Appellant told the jury that he had plead guilty to his prior offenses because he was guilty, but would not plead guilty to the Cooper homicide because he did not intend to kill her. He further testified that he killed Debra Stevens with whom he was also having an affair. He maintained he intentionally killed Stevens following an argument where she threatened to tell authorities about the Cooper homicide if Appellant did not give her ten thousand dollars. Other facts will be discussed as they become relevant to the propositions of error raised for review.

FIRST STAGE ISSUES

¶ 7 In his first proposition of error, Appellant argues he was denied a fair trial by the admission of evidence that he murdered Debra Stevens in Grady County three months after Talley Cooper's death. He claims the introduction of this other crimes evidence did not fall within the exceptions of 12 O.S.1991, § 2404(B)⁴ forced him to defend against a collateral crime with which he was not charged, confused the issues and was nothing more than improper propensity evidence designed to prejudice him. Specifically, Appellant alleges evidence of the Stevens murder was improperly admitted because: (1) the State's Burks⁵ notice was defective because the State failed to specify under which exception the evidence was sought to be admitted; (2) evidence of the Stevens murder was not necessary for the purposes cited by the State; (3) there was no visible connection between the Cooper and Stevens murders; (4) evidence of the Stevens murder was not necessary for the State to sustain its burden of proof; (5) the trial court's limiting instruction was defective because it failed to specify under which exception the evidence was being admitted; (6) the Stevens homicide was not part of the res gestae; and (7) evidence of the Stevens murder was more prejudicial than probative. The trial court consistently overruled Appellant's objections before the evidence was presented and throughout trial finding the evidence was relevant and that the probative value of the evidence outweighed its prejudicial effect. Appellant was granted a continuing objection to all evidence and testimony of the Stevens murder.

¶ 8 Evidence of other crimes or bad acts is not admissible as proof of bad character to show a person acted in conformity therewith but "may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." 12 O.S.1991, § 2404(B). The reason other crimes evidence is so limited and its admission guarded revolves around fairness to the accused who should be convicted, if at all, by evidence of the charged offense and not by evidence of separate, albeit similar, offenses. Bryan v. State, 1997 OK CR 15, ¶ 33, 935 P.2d 338, 356, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997). To be admissible, evidence of uncharged offenses must be probative of a disputed issue of the crime charged, there must be a visible connection between the crimes, evidence of the other crime(s) must be necessary to support the State's burden of proof, proof of the other crime(s) must be clear and convincing, the probative value of the evidence must outweigh the prejudice to the accused and the trial court must issue contemporaneous and final limiting instructions. Bryan, 1997 OK CR 15, at ¶ 33, 935 P.2d at 356-57. When other crimes evidence is so prejudicial it denies a defendant his right to be tried only for the offense charged, or where its minimal relevancy suggests the possibility the evidence is being offered to show a defendant is acting in conformity with his true character, the evidence should be suppressed. Id. ¶ 9 Appellant first attacks the Burks notice filed by the State because it failed to specify under which exception the evidence was sought to be admitted. Appellant also attacks the trial court's limiting instructions alleging the same defect. Because Appellant failed to object to the notice or the instructions, we will review for plain error. Wood v. State, 1998 OK CR 19, ¶ 35, 959 P.2d 1, 10. The record before this Court shows Appellant was adequately apprised that the State intended to introduce evidence of the Stevens murder. At trial defense counsel conceded he received proper notice under Burks, but argued the evidence was irrelevant and prejudicial. In light of the evidence presented against Appellant coupled with his own trial testimony, we find the failure to specify the section 2404(B) exception under which the evidence was sought to be admitted in the State's notice and in the trial court's instruction does not amount to plain error. However, we take this opportunity to remind trial judges and prosecutors of the importance of delineating the exception and purpose for which other crimes evidence is being offered. Specific rulings ensure fairness to the accused as well as facilitate expedient review of claims contesting admission of other crimes evidence.

¶ 10 The remainder of Appellant's complaints boil down to his assertion that the evidence of the Stevens murder did not fall within one of section 2404(B)'s exceptions and therefore the evidence was irrelevant, unnecessary and was more prejudicial than probative. Because Appellant lodged timely objections on this basis, the claim is properly preserved for review. When such a claim is properly preserved as in the...