Willingham v. State

• Decision Date: 15 October 1997
• Docket Number: No. F-95-995,F-95-995
• Citation: 1997 OK CR 62,947 P.2d 1074
• Parties: 1997 OK CR 62 Jackie Lee WILLINGHAM, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1074

947 P.2d 1074

1997 OK CR 62

Jackie Lee WILLINGHAM, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-95-995.

Court of Criminal Appeals of Oklahoma.

Oct. 15, 1997.

Rehearing Denied Nov. 26, 1997.

Steven Hess, Richard Hull, Oklahoma Indigent Defense System, Capital Trial Division, Norman, for Defendant at trial.

Robert Shulte, District Attorney, Lawton, for the State at trial.

William H. Luker, Oklahoma Indigent Defense System, Capital Direct Appeals Division, Norman, for Appellant on appeal.

Susan B. Loving, Attorney General, Robert Whittaker, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

LANE, Judge.

Appellant, Jackie Lee Willingham, was charged with first degree malice murder in violation of 21 O.S.1991, § 701.7, in the district court of Comanche County, Case No. CRF-94-499. The State filed a Bill of Particulars alleging two aggravating circumstances. A jury trial was held before the Honorable Allen McCall, District Judge. The jury found Appellant guilty of first degree murder and found that the murder was especially heinous, atrocious, or cruel. ¹ Appellant was sentenced to death. From this Judgment and Sentence Appellant has perfected his appeal.

I. FACTS

Sufficient evidence was presented to show that Appellant, a traveling salesman, beat and kicked Jayne Van Wey, while she was in the restroom of her office. Appellant left her lying face down on the floor, bleeding and Investigation by the Lawton police department led to the arrest of Appellant, who, after being interviewed several times admitted to beating Mrs. Van Wey. Appellant claimed that he was upset because Mrs. Van Wey had rudely rebuffed his sales efforts 15 to 30 minutes before the attack. Appellant said that his intent was to beat her, not enough to kill or seriously injure her, "as bad as it was."

unconscious. Mrs. Van Wey died as a result of aspirating her own blood.

Appellant raises sixteen propositions which will be addressed in the order they arose at trial.

II. JURY SELECTION ISSUES

Appellant contends in his twelfth assignment of error that the trial court erred in failing to grant his request for individual voir dire of prospective jurors in order to assess the effect of extensive pretrial publicity. We have considered this issue in previous cases and held that an Appellant may request individual voir dire, but he has no automatic right to such a request, although the request may be granted by the trial court. See Hain v. State, 852 P.2d 744, 749 (Okl.Cr.1993), cert. denied, 511 U.S. 1020, 114 S.Ct. 1402, 128 L.Ed.2d 75 (1994), quoting Vowell v. State, 728 P.2d 854, 857-58 (Okl.Cr.1986) The existence of extensive pretrial publicity through the news media does not itself demand individual voir dire. Id. The question is whether Appellant received a fair and impartial jury.

Appellant also claims that, because jurors heard answers given by removed panelists, they knew what answers to give in order to remain on the jury. Appellant has not shown that he was denied a fair or impartial jury. There is no indication that Appellant was unable to ask any question of any potential juror. Appellant also has not shown that the jurors were untruthful in their answers. Accordingly, we must conclude that the voir dire proceedings undertaken in this case allowed Appellant a fair and impartial jury.

Appellant argues in his fourteenth assignment of error that he was denied a jury composed of a fair cross section of the community because of the operation of 38 O.S.1991, § 28, which allows those over seventy years of age to opt out of jury service. This Court has previously considered this exact issue on numerous occasions and concluded that no valid basis exists for such a claim. See e.g. Bryson v. State, 876 P.2d 240, 251 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995) (citing prior decisions of this Court denying relief based upon this issue). Appellant has failed to provide any compelling reason for this Court to reconsider its prior decisions or depart from those rulings. Based upon precedent, this proposition of error must fail.

III. FIRST STAGE GUILT/INNOCENCE ISSUES

Appellant complains in propositions two and three that evidence was introduced in violation of his constitutional rights. ² All of this evidence was introduced without objection. Thus, Appellant has waived all but plain error. Johnson v. State, 611 P.2d 1137, 1145 (Okl.Cr.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 955, 67 L.Ed.2d 120 (1981). We will discuss these propositions along with Appellant's proposition four, that the failure to object to this evidence at trial constituted ineffective assistance of counsel.

To carry his burden an appellant must show counsel's representation fell below an objective standard of reasonableness and must prove the reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Romano v. State, 917 P.2d 12, 16 (Okl.Cr.1996). In review of such a claim, we are to accord a strong presumption that counsel was at least constitutionally competent. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

The first evidence introduced was statements made by Appellant after his initial appearance, but before he filled out and submitted his application for appointed counsel. The statements concerned credit cards that were found where Appellant had been sitting when first approached by police. Appellant confessed that he had taken the credit cards before the assault and that he took the credit cards to make "it" look like a robbery.

To show that trial counsel was ineffective, Appellant points to a motion to exclude later statements wherein trial counsel states that the initial appearance was held on December 23 rather than December 21. Appellant claims this error in not knowing the correct date caused trial counsel to fail to object to the introduction of the statement. "We are mindful that a waiver by failure to object is predicated on the irregularity being known to the adverse party such that he could have made a timely objection." Goforth v. State, 921 P.2d 1291, 1293 (Okl.Cr.1996).

The record indicates that Appellant did not request counsel until after this statement was made. Therefore, this case is distinguishable from Pickens v. State, 885 P.2d 678 (Okl.Cr.1994), overruled on other grounds, Parker v. State, 917 P.2d 980 (Okl.Cr.1996), and Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). In these two cases there was evidence, either circumstantial or direct, that the defendant had asked for counsel at the initial appearance. In this case, Appellant did not ask for counsel until after this statement had been made. Therefore, given this information, we can neither say that trial counsel's performance fell below objective standards of reasonableness, nor can we say that, absent this evidence, the result would have been different.

Absent this evidence, the State still had evidence that Appellant beat Mrs. Van Wey beyond recognition and left her to die on the restroom floor. The State had Appellant's confession to the assault. The State still had the credit cards and, absent the confession regarding the credit cards, the jury would have been left to speculate about how the victim's credit cards came to be in a place where Appellant was seated. When viewed with the other evidence, that speculation would have ended with the conclusion the Appellant left them there. It would be unreasonable to believe that absent these statements the outcome would have been different.

The other evidence introduced was Appellant's blood-covered boots. These boots were seized during Appellant's first interview with Lawton police detective John Whittington, and their discovery led to Appellant's confession. Appellant claims that no probable cause existed to support the seizure of the boots, making this case distinguishable from Harjo v. State, 882 P.2d 1067 (Okl.Cr.1994), cert. denied, 514 U.S. 1131, 115 S.Ct. 2007, 131 L.Ed.2d 1007 (1995). We find that the facts known to the police supported a finding of probable cause.

Whittington knew that Appellant fit the description of the sole suspect. He knew that it was more probable than not that Appellant was in the area of the murder but had lied about his whereabouts. He knew that there was a high probability that whoever committed the crime would have blood on his shoes, due to the amount of blood at the scene. In fact, when Whittington inspected the outside of the boots, he observed what he believed to be blood. The questioning of Appellant about the blood led to the confession.

This case is indistinguishable from Harjo where the seizure of shoes was upheld because the officers had probable cause and exigent circumstances existed for the seizure. Id. at 1073-74. Therefore, under this analysis, we cannot say that the trial attorney's failure to object to the admission of the boots fell below objective standards of reasonableness.

IV. FIRST STAGE INSTRUCTIONS

Appellant requested instructions on the lesser offenses of second degree depraved mind murder and first degree heat of passion manslaughter. The trial court refused to instruct on second degree depraved mind murder, but did instruct on first degree heat of passion manslaughter. Appellant claims, in his first proposition, that the refusal The instructions were requested based on Appellant's defense that he lacked the requisite intent to kill for a first degree murder conviction. This was Appellant's only theory of defense at trial.

to instruct the jury on the offense of second degree depraved mind murder as a "lesser included" offense was error. ³

Appellant misconstrues second degree "depraved mind" murder as a "lesser included" offense of first degree "malice" murder.

A lesser included offense is a part of the greater offense and the...