Jones v. State , 660 P.2d 634 ( 1983 )

OPINION

BUSSEY, Presiding Judge:

Appellant, William Denton Jones, hereinafter referred to as the defendant, was convicted of Murder in the First Degree in the District Court of Garfield County, in Case No. CRF-78-487. The jury sentenced him to death after hearing evidence of aggravating and mitigating circumstances. In accordance with 21 O.S.1981, § 701.13, this Court has reviewed both the appropriateness of the sentence of death and the errors of law raised on appeal.

I

THE SUFFICIENCY OF THE EVIDENCE PRESENTED AT THE TRIAL

In his first assignment of error the defendant challenges the sufficiency of the evidence presented at the trial. The standard of review when this issue is raised is whether or not the State presented a prima facie case. Hunt v. State, 601 P.2d 464 (Okl.Cr.1979). In evaluating the sufficiency of the evidence, this Court views the evidence in the light most favorable to the State. Renfro v. State, 607 P.2d 703 (Okl.Cr.1980). The jury was responsible for resolving conflicts in the evidence, and it resolved them in the State’s favor.

The evidence presented at the trial was primarily circumstantial, but it was very strong. Jones was at the victim’s place of employment when the victim was last seen alive, at about 11:00 a.m. on April 28, 1978. Although he was supposed to relieve a co-worker at a gas station at noon, Jones had not appeared by 12:15, at which time the worker left for lunch; when the defendant did arrive at work after lunch, he had changed his work boots for dress shoes. According to the State’s chemist, soil samples taken from the defendant’s clothes and from the pickup truck, which was driven solely by the defendant on the morning of the 28th, were consistent with soil samples taken where the body was found, and were dissimilar to the soil around Jones’ home or workplaces. Also, a strand of hair found in Jones’ pickup was microscopically analyzed and was found to be similar to the victim’s hair. Further, a pubic hair found in the victim’s vagina was similar to the defendant’s hair and unlike either the victim’s, her boyfriends’ or her employer’s hair. The State also introduced a fiber of cloth which was found under the victim’s fingernail, and which a State’s chemist testified was like the material in the defendant’s shirt. A doctor who had studied artificial limbs testified that marks in the mud where the victim’s body was found appeared to be marks that would be left by someone wearing an artificial leg, which the defendant had. Additionally, there was testimony that Jones frequently supported himself on his knuckles when he wasn’t wearing his prosthesis, and that there were other marks in the mud like those of knuckle impressions. Finally, the defendant made an incriminating statement to a jailmate, saying he had not meant to kill the woman.

The defendant’s argument divides the evidence into three categories. First he claims that the testimony of the people involved in his and the victim’s day-to-day lives, when properly construed, not only failed to show beyond a reasonable doubt that he was guilty, but in fact established conclusively that he could not have committed the crime. The defendant then argues the evidence in detail, dwelling on inconsistencies and emphasizing interpretations favorable to him.

Second, the defendant urges that the testimony of Theodore King, that the defendant had stated that he did not mean to kill the woman, should not have been admitted. Jones asserts that King’s extensive criminal record and his admission that he made his living as a con artist reduced his credibility to a point that his testimony was unbelievable. King’s criminal record was made known to the jury and was heavily argued by defense counsel during his closing argument.

Third, Jones challenges the reliability of the scientific tests. He presents technical discussions of the formation and composition of soil and hair, seeking to establish that the comparison tests made by the O.S. t B.I. chemist were so simplistic as to be of no evidentiary value. He also alleges that the chemist’s test of the cloth fiber found under the victim’s fingernail destroyed it, depriving him of the opportunity of having independent tests made; however, this allegation is contradicted by the record.

None of the defendant’s arguments are appropriate appellate arguments; he simply argues the weight and credibility of the evidence, which are questions of fact for the trier of fact to resolve. Hunt v. State, supra. This assignment of error is without merit.

II

SUFFICIENCY OF THE EVIDENCE PRESENTED AT THE PRELIMINARY EXAMINATION

The defendant next challenges the sufficiency of the evidence presented at the preliminary examination; his demurrer at that hearing and his motion to quash were both denied. The defendant maintains that under the language of our statutes, 22 O.S. 1981, §§ 262 and 264, “sufficient cause” means a prima facie case must be established. We do not agree. As we stated in Tabor v. State, 582 P.2d 1323 (Okl.Cr.1978):

The State is not required at preliminary hearing to present evidence which would be sufficient to convict at trial. State v. Edmondson, 536 P.2d 386 (Okl.Cr.1975). It is well established that a preliminary hearing is not a trial to determine the guilt of the accused, but only the two issues: Was a crime committed, and is there reasonable cause to believe the defendant committed said crime. Roberts v. State, 561 P.2d 511 (Okl.Cr.1977). We find from our review of the transcript that testimony taken at the preliminary hearing presented sufficient evidence by the State from which the examining magistrate could find the public offense alleged in the information had been committed, and there was sufficient cause to believe the defendant had committed the offense. Turner v. State, 549 P.2d 1346 (Okl.Cr.1976). And where there is competent evidence in the record the reviewing court will not interfere with the determination of the finder of fact.

This assignment of error is without merit.

Ill

THE STANDARDS OF PROOF FOR INDICTMENT AND INFORMATION

The defendant further complains of the preliminary examination in that he believes the State discriminated against him by not seeking a grand jury indictment. He claims that his prosecution by information denied him his constitutional right to equal protection of the law. The defendant’s argument may be summarized as follows. Under 22 O.S.1981, §§ 262 and 264, the State’s burden of proof at a preliminary examination is “that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, ...” 22 O.S.1981, § 264. This is usually referred to as a showing of probable cause, and as discussed earlier, the showing does not have to be enough evidence to support a conviction. On the other hand, under 22 O.S.1981, § 336, a grand jury may return an indictment “when all of the evidence before them . . . would, if unexplained or uncontradicted, warrant a conviction by the trial jury.” In other words, a prima facie ease. The defendant argues that these two findings, by the magistrate and by the grand jury, occupy correlative positions in their respective avenues of procedure and that it is improper to have two separate and distinct burdens of proof. He argues that the action of the district attorney in deciding to prosecute some defendants by information and some by indictment creates two classes of people who are treated differently: The State is put to a harder test to obtain a grand jury indictment than to get someone bound over for trial by a magistrate.¹ Since the defendant was prosecuted by information and the State “only” had to show probable cause, and since, according to the defendant, the State would not have been able to establish a prima facie case, the defendant claims he was greatly prejudiced. The defendant does not contend that preliminary examinations should be eliminated, only that the burden of proof should be the same in both proceedings.

The same issue was raised in Collins v. State, 561 P.2d 1373 (Okl.Cr.1977). In that case this Court addressed the issue as follows:

The defendant also argues that it is a violation of the equal protection clause not to require ‘the same quantum of evidence to hold one for trial by information as for indictment.’ We have repeatedly held that prosecution by indictment and by information are alternative remedies available to the State, In re McNaught, 1 Okl.Cr. 528, 99 P. 241 (1909); Stone v. Hope, Okl.Cr., 488 P.2d 616 (1971); and that the State commits no violation of the Fifth or Fourteenth Amendments to the United States Constitution by electing one over the other, Sisson v. State, Okl.Cr., 426 P.2d 379 (1967); Stevenson v. State, [486 P.2d 646 (Okl.Cr.1971) ]. This covers equal protection as well as due process. The underlying concept of the equal protection clause is that of discrimination. The clause was designed to protect a person or class from being singled out as the subject of hostile or discriminatory legislation. In order to raise a claim under this doctrine a person must be able to show that he or she is a member of a class which has in fact been set apart by action of the legislature. This the defendant has not done. The procedural statutes challenged — 22 O.S.1971, §§ 264 and 336 do not in fact create any classifications. The defendant argues that he is in the class of those prosecuted under Section 264 as opposed to those prosecuted under Section 336, but this is fallacious. Provision for alternate remedies is not discrimination just as provision for alternative prosecutions (where one act may constitute more than one offense) is not discrimination.

The defendant professes to find this statement “perplexing.” He asserts that the two statutes involved have nothing to do with remedies; but alternative remedies are exactly what the two avenues of procedure are — remedies available to the State to redress the commission of a crime. Each avenue has its appropriate uses² and each avenue has its advantages and disadvantages.

The cases cited by the defendant (Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); In re Franklin, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465 (1972); In re Gary W., 5 Cal.3d 296, 96 Cal.Rptr. 1, 486 P.2d 1201 (1971)) are not in point. All involved statutory schemes whereby one group of people could be denied their freedom for a specific reason without a jury trial, while other people were entitled to a jury trial before they could be held for a similar reason; no similar denial is present in the instant case. This assignment of error is without merit.

IV

THE NEED FOR A PRELIMINARY EXAMINATION ON THE “BILL OF PARTICULARS”

The defendant also argues that the issues raised by the State’s “bill of particulars” concerning the death penalty should have been heard by the magistrate before they could be presented to the jury. He maintains that he should have had a new preliminary examination after the State filed the “bill of particulars” alleging the aggravating circumstances for the death penalty. The statutes do not specify the manner in which a defendant is to be notified of the aggravating circumstances the State intends to prove. They merely provide that “[o]nly such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible.” Laws 1976, 1st Exec.Sess., ch. 1, § 4, now codified as 21 O.S.1981, § 701.10.

The defendant analogizes the “bill of particulars” to the second page of an information, saying that both serve to enhance a person’s punishment; and from this premise he concludes that the State’s statement of evidence to be used is in reality a set of allegations of fact which must be presented to a magistrate for a consideration of probable cause. Adopting the appellant’s position, however, would serve only to inject needless complications into the criminal proceeding. The purpose of the above-quoted requirement in Section 701.10 is to allow the accused an opportunity to prepare a defense. And the question then becomes one of sufficiency: How much notice is necessary to comport with due process?

The defendant was informed on September 11, 1978, that the State would seek the death penalty, and what aggravating circumstances it would seek to prove. On September 22, he was given a statement of the evidence the State intended to use during the second stage of the trial which commenced on September 27. The evidence which the State announced its intention to use was as follows: The Garfield County Court Clerk and County Sheriff were to be presented to establish that the defendant had two prior convictions; the victims of those crimes were to be called to establish that those crimes involved the use or threat of violence; all the evidence from the first stage of the trial would be adopted to show that the killing was especially heinous, atrocious or cruel, and that it was done for the purpose of escaping prosecution; and the evidence of the defendant’s continuing threat to society would be expert testimony and the defendant’s probation officer, who would testify to statements that the defendant had made to her “concerning his problems controlling his emotions.”

In view of the nature of the evidence to be presented, this Court is of the opinion that the defendant’s actual notice was sufficient to allow him to prepare his defense. There is no merit in his argument that the State’s statement of evidence must be presented to the magistrate at the preliminary hearing.

V

IMPEACHMENT OF THE DEFENDANT’S CREDIBILITY WITH PRIOR CONVICTIONS

Prior to trial the defendant presented a motion in limine by which he sought to limit the State’s cross-examination of him. The defendant had four (4) prior convictions: a misdemeanor (assault and battery) and three felonies (unauthorized use of a motor vehicle and two unspecified convictions which the defendant admits involved altercations with women; the State lists these convictions in its brief as assault and battery and assault with a dangerous weapon.) The defendant argued that except for the “unauthorized use” conviction the danger of prejudice to the jury was much greater than any probative value the convictions might have had, and he requested that the judge limit impeachment, in the event the defendant took the stand, to the conviction for unauthorized use of a motor vehicle. The judge refused to do so. The defendant did not take the stand, and he now contends that because of the judge’s order he was prevented from presenting his alibi defense.

We find that the alleged error was not properly preserved for review on appeal. A ruling on a motion in limine is advisory rather than final. Teegarden v. State, 563 P.2d 660 (Okl.Cr.1977). Thus an incorrect pretrial ruling will not be deemed to constitute prejudicial error. The error occurs when the party raises the issue during the trial and the judge rules incorrectly at that time. Since the defendant chose not to take the stand, the admissibility of the convictions was never placed in issue and there is no ruling of the trial court for this Court to review.

VI

THE EXCLUSION OF JURORS BECAUSE OF OBJECTIONS TO THE DEATH PENALTY

In this assignment of error, defendant complains of the exclusion of two jurors, Ms. Morrison and Ms. Fuksa, alleging a violation of the United States Supreme Court decision of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

A review of the record³ discloses that Ms. Morrison was properly excused. One of the permissible bases for exclusion mentioned in Witherspoon, supra, is that the prospective juror has decided in advance that the death penalty is not even a possibility to consider. Applying this standard we conclude that Ms. Morrison was properly excused.

As to Juror Fuksa the record reveals that she did not believe in the death penalty.⁴ Following her statement, the defense counsel asked a few questions successfully designed to elicit from her that she would at least consider it. The prosecutor then asked a series of questions successfully designed to re-elicit from her previous statement that she would not vote to have the defendant executed, regardless of the evidence. When the entire exchange is read, the juror is clearly saying that while she could conceive of situations in which the death penalty would be an appropriate punishment, she could never be the person to impose it. This juror, also, was correctly excused. Compare Chaney v. State, 612 P.2d 269 (Okl.Cr.1980).

In addition to these two specific challenges, the defendant alleges that every one of the State’s peremptory challenges was against a person who had hesitated at the thought of imposing the death penalty, and that the challenges for cause were based on the juror’s doubts about the death penalty. A review of the voir dire demonstrates that neither of these accusations are true.

It is obvious from the defendant’s brief that he understands the test of Wither-spoon:

The plain meaning of this language is: Judges may properly exclude jurors who would ‘automatically’ vote against the imposition of capital punishment no matter what the trial might reveal or who might make it ‘unmistakeably [sic] clear’ that their opposition to the death penalty would prevent them from even convicting a man who would later receive the death penalty.

But, he is incorrect when he argues that the jurors excluded at his trial do not fit this test. This assignment is without merit.

VII

THE ADMISSIBILITY OF TESTIMONY

The defendant presents two assignments of error objecting to the admission of certain testimony. The first one involves two witnesses who testified concerning statements the defendant had made to them; the second concerns the testimony of an expert witness.

A.

The defendant complains that the trial court had granted a pretrial motion in which the defendant requested “[wjritten statements or the contents of oral statements made by the defendant herein, ... but, during the trial Theodore King and Debbie Kretchmar testified to statements that the defendant had told them, even though the defendant had not been given copies of those statements.

Theodore King occupied the cell next to the defendant in the county jail, and he testified that the defendant said he had not meant to kill the woman. The defendant objected to King’s testimony and the trial court held an in-camera hearing beforehand, ruling that the testimony was proper. The defendant suggests that the trial court misunderstood the precise nature of his objection: The court’s ruling was based on the fact that Mr. King was endorsed as a witness and the defendant had an opportunity before the trial to interview him, but the defendant’s objection was that under the pre-trial order the State should have furnished him with a copy of King’s statement.

The defendant cites Wing v. State, 490 P.2d 1376 (Okl.Cr.1971), wherein we held that a defendant should be able to discover the contents of oral statements, but Wing does not apply to the present case. It is clear from the opinion that this Court was talking about oral statements given to law enforcement officers. The transcript of the present case indicates that the defendant was aware of this limitation, because he sought to establish that Mr. King had been designedly placed next to him for the purpose of drawing him out on the subject of the murder. Had he been able to do so he might have been able to suppress Mr. King’s testimony under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), but he did not. The statement to Mr. King was not the result of interrogation and, therefore the State was not obliged to provide the defendant with a copy of it. It follows that the trial court’s ruling was correct. The defendant was on notice that Mr. King would testify; it was his responsibility to determine what the substance of that testimony would be.

Debbie Kretchmar’s testimony is easily treated. She was the defendant’s probation officer after a previous conviction. Her statements related to the defendant’s repeated attacks on women and the likelihood that he would be a continuing threat to society. Not only does the above discussion of Wing, supra, apply (the statements were not the result of interrogation), but the defendant did not object to Ms. Kretchmar’s testimony during the trial. Hence, he has not properly preserved this issue for appeal.

B.

Next, the defendant challenges the testimony of the county medical examiner, who testified that in his opinion some of the marks in the mud around the body could have been made by a person with an artificial limb. The defendant argues that the doctor was not qualified to testify as an expert on prosthetic devices. He emphasizes the doctor’s lack of experience in dealing with artificial limbs; but he fails to consider that expert knowledge can be acquired through study as well as from experience. Compare, Riggle v. State, 585 P.2d 1382 (Okl.Cr.1978), in which a man only five days out of medical school was allowed'to give expert testimony as to the victim’s wounds and the possible cause of death. The doctor’s qualifications were placed before the jury. On cross-examination the defense attorney elicited the doctor’s lack of experience and the fact that it was only on the day before the trial that he had surmised that the prints in the mud were caused by an artificial limb. The probative value of the doctor’s testimony was for the jury to determine. This assignment is without merit.

VIII.

PREJUDICIAL REMARKS BY JUDGE AND PROSECUTOR

This assignment of error is actually several independent issues combined under a single heading. For clarity they will be discussed separately.

A.

During the second stage of the trial the defendant introduced a letter from a psychiatrist to the defendant’s attorney concerning one of the defendant’s prior cases. The doctor diagnosed the defendant as schizophrenic and recommended long-term psychotherapy. In rebuttal, the State introduced a letter from a State psychiatrist to the district court in the same or a contemporary case (one letter was written in March, 1976, the other in September, 1976). The State doctor diagnosed the defendant as non-psychotic. He described the defendant as having an anti-social personality and said that the condition was not treatable. The letter also stated that further anti-social acts could be anticipated, and that in the event they did happen the defendant should be placed in prison rather than in a mental hospital. Neither doctor was called to testify. On appeal the defendant urges that the State’s letter was highly inflammatory hearsay and' should not have been admitted without the author present to be cross-examined.

The State replies that if any error was committed in the admission of the letter, it was invited by the admission of the defendant’s letter. But the argument is based on a misconception, because there was no error in the admission of the defendant’s letter. The State stipulated to the admissibility of that letter “without further proof or identification or authenticity and without the necessity of calling [the author].” Thus, any hearsay problems which might have arisen concerning the defendant’s letter were waived by the State, and the State cannot now attempt to use that letter to solve the hearsay problems of its own letter. The State did not seek a stipulation from the defendant.

The present evidence code became effective in the middle of the trial of the present case. The trial began September 27,1978, and ended October 5,1978, and the code became effective on October 1. Under the prior rules of evidence the admission of the letter without the doctor’s presence would have been improper. Bennett v. State, 448 P.2d 253 (Okl.Cr.1968), held that a hearsay medical opinion could not be made admissible merely by authenticating it as an official record. The declarant doctor had to be present in court and subject to cross-examination. See also Fry v. State, 529 P.2d 521 (Okl.Cr.1974). However, the letter under discussion was introduced on the last day of the trial, and the question must be decided under the new code. The relevant section of the code provides as follows:

Any form of memorandum, report, record or data compilation of acts, events, conditions, opinions or diagnosis, made at or near the time by or from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit; 12 O.S.1981, § 2803(6).

The problem in the present case is in the phrase: “... all as shown by the testimony of the custodian or other qualified witness, ...” The letter purports to be a report of a medical opinion, made at or near the time the defendant was under observation at the hospital, by a person with knowledge of that observation and its results; and it is allegedly the regular practice of the hospital to make such reports to the district courts. But the witness the State chose to present was the Garfield County Court Clerk, who testified that the letter was a part of the district court file of a previous case involving the defendant.

This was not the type of qualification needed to support the admissibility of the letter. The “custodian or other qualified witness” should have been someone from the hospital who could have testified as to how the regular business of the hospital is conducted concerning observation and reporting. It was not necessary to call the doctor who wrote the letter, but it was necessary to call someone who could testify that the report was in fact made at or near the time and by, or from information transmitted by, a person with knowledge of the circumstances reported. It was error for the trial court to admit the letter.

The error does not necessitate the reversal of the conviction, however. Since it came during the second stage of the trial, it did not influence the jury’s finding of guilt. Further, the letter was not prejudicial in regard to the death sentence. The jury had before it the evidence of the defendant’s four prior convictions, three of which involved attacks on women, committed in the space of three years. With or without the letter from the State psychiatrist, there can be no question that the jury would have found that the probability existed that the defendant would be a continuing threat to society.

B.

In the second part of this assignment, the defendant objects to the district attorney’s cross-examination of the defendant’s wife during the second stage, portions of the State’s closing arguments in both stages and a comment by the trial judge during the second stage. After careful review of those portions of the record where proper objections were entered, this Court is of the opinion that none of the comments created unfair prejudice in the minds of the jurors. The comment made during the first stage closing argument concerned, not the guilt of the defendant, but the length of the sentence to be imposed in the event the jury convicted the defendant of manslaughter. Nor did any of the second-stage incidents prejudice the defendant. The State clearly proved all of the alleged aggravating circumstances. (Indeed, the defendant’s attorney conceded so during his closing, arguing that even though all four circumstances existed, death was not an appropriate punishment.) If any of the events of which the defendant complains were improper, they were relatively minor when viewed in the full light of the circumstances of the case. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This assignment is without merit.

IX.

THE CONSTITUTIONALITY OF THE DEATH PENALTY

Finally, the defendant argues that Oklahoma’s death penalty statutes are unconstitutional. He first contends that 21 O.S.1981, § 701.10, allows unbridled discretion on the part of the jury when assessing the appropriate penalty. This is not true. The jury is limited in the aggravating circumstances it can consider to those of which the defendant was informed before trial, section 701.10, supra; it must find that the circumstances were proved beyond a reasonable doubt, 21 O.S.1981, § 701.11; nor is the jury restricted on mitigating circumstances, by statute, Section 701.10, supra, and court instruction, the jury was limited to mitigating circumstances it could find from the evidence. Further, in the present case the judge gave the jury guidance, in the form of example mitigating. circumstances.

The defendant’s second contention is that the phrase “heinous, atrocious, or cruel” is unconstitutionally vague. This argument was rejected in Chaney v. State, 612 P.2d 269 (Okl.Cr.1980); the instruction given to the jury defining the phrase was the same as the one approved in Chaney. This assignment is without merit.

THE APPROPRIATENESS OF THE DEATH PENALTY

Title 21 O.S.1981, § 701.13, requires this Court to consider the appropriateness of the death sentence in addition to the errors raised on appeal.

In light of my colleagues’ view that the punishment should be modified from death to life imprisonment, I wish only to voice my disagreement with such modification, believing as I do, that the evidence amply supported the finding of the aggravated circumstances, and that the sentence of death was not imposed “under the influence of passion, prejudice, or any other arbitrary factor.” 21 O.S.1981, § 701.13(C)(1).

The judgment and sentence is Modified from a sentence of death to a term of life imprisonment, and AS SO MODIFIED, is Affirmed.

CORNISH and BRETT, JJ., specially concur.

1 . Practically speaking, the difference between the two procedures is not as sharp as the defendant argues. For instance, compare Stone v. Hope, 488 P.2d 616 (Okl.Cr.1971), in which a district attorney sought and obtained a grand jury indictment after the magistrate had found that there was not probable cause to hold the accused for trial.

2 . In re McNaught, 1 Okl.Cr. 528, 99 P. 241 (1909), this Court made the following comment:

We are fully satisfied that the framers of our Constitution intended to abolish the grand jury system, except that it might be invoked for those special purposes, such as the investigation of public officers, the failure of public prosecutors to do their duty, and those peculiar conditions of public disorder which sometimes arise and make prosecutions by information impracticable.

3 . See Appendix A.

4 . Appendix B.