holding that "allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such to deprive the defendant of a fair trial"
How later courts described this case
- holding that "allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such to deprive the defendant of a fair trial"
- listing “requirements” of avoid arrest aggravator as “(a) a predicate crime existed, apart from the murder, from which the defendant sought to avoid arrest/prosecution; and (b) the State presented evidence establishing the defendant’s intent to kill in order to avoid arrest/prosecution”
- reaffirming Mun-son and holding that where separate verdict forms show jury finds both malice and felony murder, verdict will be interpreted as malice murder and underlying felonies may stand
- noting that the defendant "must make a showing of need and show that he will be prejudiced by the lack of expert assistance"
Written by the judges who cited it.
The opinion
LUMPKIN, Vice-Presiding Judge:
concurs in results.
¶ 1 I concur in the result reached in this case. I do not agree with portions of the rationale, however, and therefore I write separately to address those points of disagreement.
¶ 2 First, Appellant in this case was a party to the Petitions for Extraordinary Relief set out in Footnote 2 of the Court’s opinion. The issues raised have been judicially determined. Within the context of criminal procedure that judgment is res judi-cata and Appellant is procedurally barred from raising the issue a second time. The opinion confuses collateral estoppel with the doctrine of res judicata, i.e. claim preclusion. Rather than use that approach, we should simply state the claim is procedurally barred by res judicata.
¶ 3 Second, while I am of the opinion Oklahoma law does not prevent the trial court, in the exercise of its discretion, from impaneling dual juries, I remain skeptical regarding the value of this procedure, especially in capital cases. Although I do not find reversible error occurred in the instant case, some of the issues raised by Appellant are illustrative of future problems we will likely encounter when dual juries are impaneled. Rather than broadly endorsing the dual jury procedure, as did the majority in Cohee v. State, 942 P.2d 211, 213 (Okl.Cr.l997)(Lumpkin, J. Concurring in part, dissenting in part), I will continue to monitor its impact on the trial on a case-by-case basis.
¶ 4 Third, with respect to proposition two, I believe the opinion goes too far in its discussion of post-autopsy photographs. While I agree with the general principal that post-autopsy photographs should be viewed with a certain degree of suspicion because of their potential to be more prejudicial than probative, we must recognize that post-autopsy photographs may have their place in certain cases. See Mitchell v. State, 884 P.2d 1186, 1196-97 (Okl.Cr.1994), cert. denied, 516 U.S. 827 , 116 S.Ct. 95 , 133 L.Ed.2d 50 (1995)(post-autopsy photograph more proba *523 tive than prejudicial). In addition, the post-autopsy photograph of the interior of the skull which revealed the hinge type fracture at the base of the skull did not show “the handiwork of the medical examiner.” It showed the level of force used by Appellant and his co-defendants as they beat the victim to death. If this injury had been visible on the outside of the victim’s body, a photograph of those injuries would have been admissible regardless of how prejudicial it might have been. As the Court recognizes “photographs of the numerous wounds to the victim’s head suffered by the victim were properly admitted. These photographs were far more prejudicial than the sterile, clinical photograph of the inside of the victim’s skull.” (Opinion at pg. --). I find the photograph was admissible and no error occurred.
¶ 5 Finally, it should be noted the criteria set out in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), for evaluating effectiveness of counsel has been further explained in Lockhart v. Fretwell, 506 U.S. 364 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993). Applying the Lockhart standard, the record is void of any evidence the trial was rendered unfair and the verdict rendered suspect or unreliable.