Young v. State

• Decision Date: 06 November 1998
• Docket Number: No. F-95-1142.,F-95-1142.
• Citation: 992 P.2d 332,1998 OK CR 62
• Parties: Julius Recardo YOUNG, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

992 P.2d 332

1998 OK CR 62

Julius Recardo YOUNG, Appellant, v. STATE of Oklahoma, Appellee.

No. F-95-1142.

Court of Criminal Appeals of Oklahoma.

November 6, 1998.

Rehearing Denied February 19, 1999.

Jim Fransein, Stuart Southerland, Tulsa, Defense Counsel at trial.

Jay Holtzhouser, Ed Snow, Asst. District Attorneys, Tulsa, prosecutors at trial.

Paula J. Alfred, Assistant Public Defender, Tulsa, counsel on appeal.

W.A. Drew Edmondson, Atty. General of Oklahoma, William Humes, Asst. Attorney General, Oklahoma City, counsel on appeal.

OPINION

LANE, J.:

¶ 1 Julius Recardo Young was tried by jury in Tulsa County District Court Case No. CF-94-937 and convicted of two counts of First Degree Murder and one count of First Degree Burglary. 21 O.S.1991, §§ 701.7, 1431. Following the second stage of trial the jury found three aggravating circumstances and set punishment at death for each of the murders and fifty years imprisonment for the burglary. Presiding Judge Clifford Hopper sentenced Young in accordance with this recommendation. Young is now before the Court on original appeal. We AFFIRM Judgment and Sentence.

FACTS

¶ 2 Julius Recardo Young was convicted of murdering his girlfriend's daughter and six year old grandson. The murders occurred two days after his girlfriend, Joyslon Edwards, advised him she wanted to cool their relationship, and he would not get a key to her new apartment. She was not giving him a key, because she wanted her daughter and grandson to "feel safe" when they visited her. They did not like Young. Young had a key to the apartment Edwards had been sharing with her daughter, Joyland Morgan, and her grandson, Kewan Morgan. The day before the murders Edwards demanded the key from Young, but he did not return it.

¶ 3 Joyland and Kewan Morgan were beaten to death in their Tulsa apartment on October 1, 1993. Their wounds indicated the murder weapon was a blunt instrument similar to a baseball bat, but the murder weapon was never found. Ms. Morgan sustained defensive wounds to her hands and arms, and at least thirteen blows to her face and head. These blows broke her jaw, tore open her scalp, and fractured her skull. She was found slumped against a living room wall. Kewan Morgan died in his bed. He sustained massive head fractures caused by two separate blows. ¶ 4 Every night before she went to bed Joyland Morgan secured her front door with two locks and a security chain. The intruder opened both locks with a key and pushed through the security chain, breaking it. A piece of the broken chain was missing from the apartment.

¶ 5 No eye-witnesses were found. However, a downstairs neighbor was awakened at 3:40 a.m. by a single loud bump from Morgan's apartment. Joyslon Edwards testified she saw a baseball bat in Young's trunk the night before the murders, but the next day it was gone.

¶ 6 Young always drove Edwards to work and the day of the murders he arrived at 4:15 a.m., earlier than usual. Edwards asked him for change so she could use the vending machines at work. When Young pulled out the contents of his pocket, Edwards saw a piece of security chain similar to the one she had installed on her daughter's door. Later that day when Edwards learned of the murders, she reported this evidence to the police.

¶ 7 Young lived with his mother at the time, and the police obtained a warrant to search the mother's home. Edwards told them what Young had worn the previous evening. The police recovered the shoes described by Edwards and these bore a visible spot of blood. Young accompanied the police during the search. He volunteered the drop was fish blood. DNA testing revealed the drop was human blood consistent with that of Joyland and Kewan Morgan. The police also recovered a freshly laundered shirt which tested positive for blood when it was exposed to luminal.

ISSUES ARISING IN THE FIRST STAGE OF TRIAL

A. Jury Selection

¶ 8 Young argues in his first proposition the trial judge subtly influenced the voir dire procedure in such a way that the resulting jury panel was guilt-prone and death-prone in violation of his Fourteenth Amendment right to due process. This argument is a variation of that rejected by Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 1764, 90 L.Ed.2d 137 (1986). The Supreme Court held that even if a jury which has been "death qualified" is more guilt-prone than a jury which has not, the Constitution does not prohibit the States from "death qualifying" juries in capital cases. Id.

¶ 9 Oklahoma trial judges assume an active role in conducting voir dire to death qualify a jury in a capital case. The trial judge enjoys broad discretion in deciding which members of the venire possess actual bias and should be excused for cause. Walker v. State, 1994 OK CR 66, ¶ 12, 887 P.2d 301, 307, cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997); Mitchell v. State, 1994 OK CR 70, ¶¶ 15-16, 884 P.2d 1186, 1195, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995); Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734 (1950). 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." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).

¶ 10 Young argues questioning by the trial court amounted to "grilling" the jurors and "show[ing] disdain for fundamental precepts of a fair trial...." We reject this argument for it is not supported by the record. Neither the process of voir dire, nor the voir dire as conducted by J. Hopper "grilled" the jurors or showed disdain for due process. The trial judge appropriately plumbed the attitudes and beliefs of the venire panel. His questions yielded candid responses from venire members who freely exposed important information which allowed counsel for both sides to make intelligent selection choices. The trial judge focused on finding jurors who could follow and apply the law, as required by Witt. Id.

¶ 11 Young reads too much into Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492 (1992) when he argues the trial judge tainted the jury panel by failing to ask life-qualifying questions. Morgan simply holds that a trial judge cannot prohibit life-qualifying questions upon counsel's request. Id. As is customary in Oklahoma, defense counsel and the prosecutor also asked questions of the venire panel. At no time did Judge Hopper prohibit counsel from probing the attitudes of the venire panel on the subjects of mitigating evidence or the sentencing alternatives of life in prison with or without possibility of parole. The trial judge did not run afoul of Morgan.

¶ 12 Appellate counsel concedes the trial judge properly instructed the venire panel as to all the punishment options and the presumption of innocence, but complains the instructions came so late in the jury selection process that the trial judge had already predisposed the jury to a finding of guilt. This speculation is not sufficiently grounded in the facts to persuade us. The trial court's questions and statements were not improper. Young's argument that the standard instructions should have been given earlier in the voir dire process is not sufficient to bear the burden to prove this trial judge violated Young's right to due process by instructing the jury when he did.

¶ 13 In his second proposition Young argues the trial court erred by failing to dismiss Veniremen Hill and Wnuck for cause. Young removed them by peremptory challenge, and argues reversal is warranted because he was forced to keep other unacceptable veniremen when the trial court denied him additional peremptory challenges.

¶ 14 We agree the trial court erred by failing to dismiss these two veniremen for cause. Veniremen who possess actual bias, that is they are unable to follow their instructions and their oaths, should be dismissed by the trial court for cause. Witt, 469 U.S. at 424, 105 S.Ct. at 852. Venireman Hill could not follow his oath because he could not presume the defendant innocent until proven guilty. When asked by the trial court, "If you hear evidence, can you keep an open mind and listen to the evidence and follow the law and reach a verdict in this case based on the law and the evidence and nothing else?", he replied, "I hope that I could, but I don't know, I mean, I think my mind would be harder to convince just because of where I am. Like I say I've tried to keep an open mind but that's just where it is." In spite of this clear expression of bias, the trial court denied defense counsel's request that Hill be removed for cause. This is error under Witt.

¶ 15 Venireman Wnuk, who was moving to Houston soon and planned to take her son to college in California the next week stated, "I no longer have a vested interest in Tulsa or the State of Oklahoma.", and added she could pay attention to the trial for only five days. This venireman made clear she did not care to follow an oath, and in any case, would not for more than five days. The failure to remove this venireman is also error under Witt.

¶ 16 Defense counsel cured the trial court's error by removing both of these venireman by peremptory challenge. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988). He argues he was denied due process nevertheless, for as a result of curing the trial court's error, he ran out of peremptory challenges while objectionable veniremen remained. In such cases the burden falls to the defendant to request additional peremptory challenges and to create a record sufficient to prove prejudice if the request is denied. Salazar v. State, 1996 OK CR 25, ¶¶ 28-29, 919 P.2d 1120, 1128-29.

¶ 17 Defense counsel preserved the error for appellate review when he asked for five additional peremptory challenges after removing Hill and Wnuk. Proof of prejudice, however, requires more. Id.; Spears v....