Andrew v. State

A. JOHNSON, Judge,

concurring in result in part and dissenting in part.

T1 The first stage of this capital murder trial is rife with error. That error, at its most egregious, includes a pattern of introducing evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman. The jury was allowed to consider such evidence, with no limiting instruction, in violation of the fundamental rule that a defendant must be convicted, if at all, of the crime charged and not of being a bad woman.

1[ 2 I cannot agree with the majority's analysis of the Oklahoma Evidence Code's provisions which embody this rule. 1 That analysis is contrary to the purpose of the rule and to the jurisprudence of this Court. 2

*207 13 I coneur nonetheless in the result reached by the majority opinion. The evidence of Andrew's guilt of the murder is indeed overwhelming and the fundamental principles of justice do not require a second trial on that question.

T4 I cannot, however, stretch that rationale far enough to find this jury was unaffected by that evidence in deciding whether this defendant should live or die.

1 5 The evidence in question here included testimony about

(1) Andrew's prior adulterous affair with J.T.H., and

(2) her prior adulterous affair with another man;

(8) neighborhood boys had onee told their mother that Andrew had "come on to them" when they were working at her house;

(4) on the occasion of a restaurant dinner her dress was too short, she showed too much cleavage, and someone there called her a "hoochie;"

(5) she had said she liked having workmen at her house and used them to babysit;

(6) she dyed her hair red after learning a male acquaintance was partial to redheads; and

(7) during an argument with a plumber, she threatened to kill him.

T 6 This is only a partial list of the testimony Andrew complains of on appeal, but it will suffice to demonstrate the tenor of the prosecutor's evidence.

17 Andrew argues that the sole purpose of this and similar evidence was to "humiliate" and "dehumanize" her. Whatever the purpose, I believe one effect was to trivialize the value of her life in the minds of the jurors. As the prosecutor argued in closing, Andrew was "different."

Improper Statements

T8 Citing to Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976), Andrew argues that the result of the prosecution's misconduct was a sentencing procedure that did not meet the heightened standard of reliability required by the Eighth and Fourteenth Amendments.

T 9 During closing argument at the penalty stage of trial, the prosecutor made numerous improper statements.

T 10 I will address only the most immoderate of the prosecutor's statements:

1. Referring to the testimony of Andrew's distraught and sobbing 18-year-old daughter, the prosecutor told the jury, "I'm sure you noticed from the witness stand, Tricity did not beg for her mother's life." 3

2. Referring to the testimony of Andrew's niece, "Would you put your 15- *208 year-old niece on the stand to do that? I wouldn't." 4

3. In response to defense argument that Andrew's relatives would visit her in prison, "Rob Andrew's parents would like to visit him in prison ... the only place they get to visit is his grave." 5

4. In response to victim impact statements not asking for death: "Did they have to say it? Wasn't it conveyed? Wasn't their message conveyed to you what punishment they want," and, "They're [the victim's family] prohibited by law from asking for a specific punishment." 6

11 The second stage of Brenda Andrew's trial was fundamentally unfair I find it impossible to say with confidence that the death penalty here was not imposed as a consequence of improper evidence and argument. A death sentence imposed under the influence of passion, prejudice, and other arbitrary factors cannot be upheld. See 21 ©.8.2001, § 701.18.

{12 I would reverse and remand for re-sentencing.

. 12 § 2404.

. Welch v. State, 2000 OK CR 8, ¶ 8 , 2 P.3d 356 , 365:

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, prepara *207 tion, 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. 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. 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.

(citations omitted). See also Lott v. State, 2004 OK CR 27, ¶ 40 , 98 P.3d 318, 334-35 ; Bryan v. State, 1997 OK CR 15 , ¶ 33, 935 P.2d 338, 356 .

. Appeals designed to inflame the passions of the jury that divert the jury from its duty to decide a case on the evidence have long been condemned by this Court. See Tobler v. State, 1984 OK CR 90, ¶ 28 , 688 P.2d 350, 356 ; Ward v. State, 1981 OK CR 102, ¶ 5 , 633 P.2d 757, 758 ; Bryant v. State, 1978 OK CR 110, ¶ 24 , 585 P.2d 377, 381 . The prosecutor's argument was nothing but an attempt to enrage the jury and repeat the theme that Andrew deserved the death penalty, not because the State had proved the aggravating circumstances it alleged, but because she was a bad mother and woman. This argument was outside the record and without foundation because Tricity was never asked any questions about punishment for her mother. The freedom of speech and the range of argumentation permitted during closing argument extends only to the evidence presented at trial and to reasonable inferences drawn therefrom. Ward, 1981 OK CR 102, ¶ 3 , *208 633 P.2d at 758 . "Arguments beyond the scope of the evidence can only be intended to arouse the passions and prejudices of the jurors and are improper." Id. It is impermissible for a prose-culor to go outside the record for purposes of appealing to the jury's passions and prejudices. Bryant, 1978 OK CR 110, ¶ 24 , 585 P.2d at 381 .

. The prosecutor crossed the line and again went outside the record by questioning the propriety of putting on a mitigation witness who asked the jury to spare Andrew's life. The prosecutor's personal opinion that she would not have put this witness on the stand to shield the young girl from testifying in a capital sentencing proceeding reinforced the idea that Andrew was a bad person and thus she deserved the death penalty. It is improper.

, Not only has this Court repeatedly condemned this argument, we have done so in many cases prosecuted by this district attorney's office. See Young v. State, 2000 OK CR 17, ¶ 99 , 12 P.3d 20, 45-46 ; Powell v. State, 2000 OK CR 5, ¶ 150 , 995 P.2d 510, 539 ; Le v.State, 1997 OK CR 55, ¶ 53 , 947 P.2d 535, 554 ; Duckett v. State, 1995 OK CR 61, ¶ 46 , 919 P.2d 7, 19 . Our reprimands to seasoned prosecutors, including the lead prosecutor here, have been ignored and capital case after capital case has been jeopardized. It cannot and should not be tolerated.

. It is improper for the prosecutor to ask jurors to have sympathy for victims. Warner v. State, 2006 OK CR 40, ¶ 190 , 144 P.3d 838, 890 . As noted in Note 3, supra, references to matters outside the record is error. See also White v. State, 1995 OK CR 15, ¶ 24 , 900 P.2d 982, 993 .