# Petition — DAVIS v. OKLAHOMA (No. 83-5183) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1645%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text -. 88 5183 RECEIVED vu. 29, 1983 Seer IN TEE Orrive ur mt ULeRA SUPREME CORT US SUPREYE COUPT OF THE UNITED TT October Terr, oe CRAPLES WI TAM DAVIS, Der . corer, STATE OF OFLAHOMA, Respondert. WRIT OF CEPTIOPART THEE OKLAHOMA COUPT OF CRIMINAI APPEALS PETITION FOP WRIT OF CERTIOPAF! ROBERT A. RAVITZ FIRST ASSISTANT PUBLIC DEFENDEF OKLAHOMA COUNTY 409 County Office Buildine 320 Robert S. Kerr Oklahoma City, Oklahoma 73102 (408) 236-2727, ext. 582 COUNSEL FOR PETITIONER t QUESTIONS PRESENTED . l. Car a state consistent with the Siwtr Amerdmrert rice to effective assistance of counsel, the Fiarer Arerd@rert ric to individualized sentencine in capital cases, ane tre Fourteert> Amendrert riahts to Gue process an@ eoual protection of the law fail to provide an opportunity for an indicert tc obtain expert psychiatric testimony Gealinre with miticatior of punishrent? 2. Can the Oklahoma Court of Criminal Appeals continually circumvent this Court's Opinion in Witherspoon v. 1 affects their conscience? 2. Can an appeals court consistent with the Fiarth and Fourteenth Amerdments and consistent with this Court's Opinion in Godfrey v. Georcia, 446 U.S. $20 (1980) allow fer an open ended interpretation of the accravating circumstance crue-, heinous and atrocious” and fail to narrow the class of persons eligible for the death peralty a a result of their interpretation? &. Is a state appeals court recuired by the Eiahth and Fourteenth Amendmerts to undertake proportionality review of death cases Py comparine Petitioner's sentence of death tc similar cases and can a state appeals court consistent with the @ue process clause of the Fourteenth Amendment arbitrarily denv Petitioner his state statutory richt to have a reference mace to similar cases in determining to affirm a death penalty? el- Queeticrs Presertec. Opinion Below. ..- + Juriedictior . - « -» Constitutional and St im this Case . - -- ) " Statermert of the Case How the federal cuest . ar rec re Reasorse for antine Corclusion . -« «= « »« Certificate of Serv w m ad " ’ ~? NO. IN THE SUPRFME COURT OF THF UNITED STATES October Term, 1982 CHARLES WILLIAM DAVIS, Petitioner, STATE OF OFLAHOMA, Respondent. PFTITION FOR WRIT OF CEPTIOPARTI TO THE OKLAHOMA COURT OF CRIMINAI APPFALS Petitioner prave that a Writ of Certiorari issue to review the judament of the Oklahore Court of Criminal Appeals entered in this case on May 9, 1963. OPINION BELOW ‘ The opinion of the Oklahoma Court of Criminal Appeals was published and will soon be produced in Pacific Reporter Series. It is annexed as Appendix A. The order denyinae rehearina is unreported. It ie annexed as Appendix B. JURISDICTION The judament of the Court of Criminal Appeals was entered on May 9, 1983. A timely petition for rehearing (Appendix C), was denied on June 17, 1983. Jurisdiction of this Court is invoked under 28 U.S.C. 61257(3). o2- This case involves the Fourteenth Amendment to the Constitution of the United States whick provides, pert: " ..Nor shall anv state ¢ceprive anv person of life, liberty, or property, without @ue process of law; nor deny to any persons within its turisdiction the eaual protection of the laws." in relevart The Sixth Amendment to the United States Constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the riaht to a speedy an@ public trial, fy impartial jury of the state and district wherein the crime shall have heen committec...3 ana toc have the assistance of counsel for his defence.” The Fiohth Amendment to the Constitution to the States which provides, in relevant part: "Pycessive bail shall not he reauired,... nor cruel and unusual punishments inflicted.” Thie case also involves provisions of the Oklahoma Statu 1. ©O.8. 21 $701.7 Murder _in the firet degree A. A person commits murder in the first dearee when he unlawfully and with malice aforethought causes the death of another human being. Malice is that Aeliberate intention unlawfully to take awav the life of a human beina, which is manifested by external circumstances capable of proof. B. A person also commits the crime of murder in the first degree when he takes the life of a human being, reaardless of malice, in the commission of forcible rape, robbery with 4 dangerous weapon, kidnapping, escape from lawful custody, first degree burglary or first dearee arson. 2. 6.8. 21 $761.9 Punishment for murder. A. A person who is convicted of or pleads quilty or nolo contendere to murder in the first dearee shall be punished by death or by imprisonment for life. o3 STATEMENT OF THE CASE The petitioner, CEARLFS WILLIAM DAVIS, wae convicted of murder in the first decree 21 0.S. €701.7 for the murder of Robert Wayne Jones, petitioner's brother-in-law, and Dennis MeLauahlin, a friend of petitioner's brother-in-law, Wounded but not killed in the same incidert were Fathy Jones-Davie, petitioner's wife and Ferry Jones, petitioner's brother-in-law, The evidence at trial showest petitioner on the niabt of the homicide, was married to Kathy Jones-Davis. RF 1° (Tr. 33°) In the early morning hours of Aucust 13, 1977, Me. Davis, accompanied by Dennis McLauchiin, @ friend, and Pobert and Henry Jones, her brothers, had driven cown to Oklahoma City from Sapulpa, Oklahora. Tr. 339 These people arrived in Oklahoma City between §:00 and 5:30 a.m. and went to the police station. (Tr. 340). Shortly thereafter, these people arrived at Petitioner's home. (Tr. 341). After loadina Ma. Davis’ beloncings into the car, she, MeLauchlin and her brothers re-entered the apartment to make sure evervthing wat taken out. (Tr. 343) Thereafter, after askins where hie car war, the Petitioner started shootine. (Tr. 348) Ms. Davis admitted at trial she had had an agreement hetween herself and petitioner she would collect her beloncinas between 11:00 a.m. and 2:00 p.m. Saturday or Sunday. (Tr. 387) Henry Jones admitted initially when the people went in the house prior to leaving for one last look around, petitioner was outside with Henry Jones. (Tr. 532) The witness atatedc once they went inside petitioner's home for the last time, they were just standing around. (Tr. 535) After the shooting The recora in the Okianoma Court of Crimina. Appeals consists of a bound record consisting of instruments filed in the trial court (hereinafter referred to as PF.) and a trial transcript (hereinafter referred to as Tr.) and after he recained consciourress, Herry Jonee chased tre Petitioner around the hack of the house. (Fr. S28) He further claimed he did not have a cun when he chased the Petitioner e268) even thovah he krew the Petitioner had a aun. (Tr. The petitioner basically ceetified eo eimilar facte oriv re claimed he acted in self-deferste, The voir dire examination of ‘urore Metivier and Muecrave az shown by the Court of Criminal Appeals’ Opinion is found et Appendix D to this Petition. -9- HOW THF FEDFRAL QUESTIONS WEPE PATSED AND DECIDED BELOW 1. Prior to terial, petitioner recuested throuch counsel, funde to hire certain witnesses to present evidence in mitication of punishment. (FP. 14-16). This motion wae overruled by the trial court though the court 4id rule ehae if possible, the state psychiatrist erould examine the defendant to determine whether there were mitigating factore®. An atterpt was made to have the person examined by the state hoepital Fut the etate hospital refused through their legal counsel who concluded that the hoepital was without authority to check the Aefendant recarding miticating factors, (Tr. Motion® Pp» 10), On appeal to the Oklahoma Court of Criminal Appeals, the court held there wae no richt to estate funds to Fire a peyvehiatrist to present miticatine factor# on behalf of a defendant. While it i# unclear from the consensus of the court's Opinion what the exact basis was for the denial of funds for expert witresser, it is clear that the court considered thie on due process principles, eaual protection principles, opportunity to present mitiaationa) evidence and the riaht to effective assistance of counsel from the brief discussion by the court of thie iseue and the brief of petitioner. Similarly, petitioner's petition for rehearing ir the Oklahoma Court of Criminal Appeals specifically stating the exact constitutional amendments that he based his araument. 2, The objection to the improper excusal of Jurors Musarave and Metivier was firet made before the trial court and wast briefed and addressed by the Oklahoma Court of Criminal Appeals. This issue was also addressed by the dissenting judae, 3, This acgeravatine circumstence was ohsected to prier to trial pursuant to Geferdart's motion to strike the hill of particulare. It wae renewed at trial based on the fact the evidence @id ret support the finding that the murder wae especially heinous, atrocious ar@ cruel. hie wae overruled Py the trial dudce. Or appeal to the Court of Criminal Apreale, petitioner's brief alleced the evidence presented ry the prosecution was insufficient to support the acaravatine circumstance “eruel, heinous and atrocious.” Petitioner's brief wae filed prior to thie Court's decision ir Godfrey vy, Georcia, 44@ U.S. 420 (1980), Petitioner addressed in bie petition for rehearing the improper interpretation placed or this agoravatine circumetance in liaht of the Fiehtr and Fourteenth Amendmerte and in liant of this Court's deci#ion ir Godfrey v. Georcia, supra. 4, Petitioner's last iseue wae briefed for the fireat time on rehearing. After the affirmance of petitioner's serterce in Liekt of proportionality review previously conducted Fy the Oklahoma Court of Criminal Appeals and ite refugee) to conduct the game tvpe of proportionality review im petitioner's care. -ll- REASONS FOP GRANTING THE WEI7 I. THIS COUPT SHOULD GRANT CEPTIOPARI TO CONSIDER WHETHEP IT IS CONSISTENT WITH THE SIXTH AMENDMENT PIGHT TC EFFECTIVF ASSISTANCE OF COUNSEL, THE FIGHTF AMENDMEN™ RIGHT TO INDIVIDUALT2FO SENTENCING IN CAPITAL CASES, AND THE FOUPTEENTE AMENDMENT RIGET TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS, TO PROFIBIT, IN A CAPITAL CASF, AN INDIGFN®T DEFENDANT'S PIGHT 70 PROCURE SOME TYPE OF PSYCHOLOGICAL TESTIMONY PFGAPDING VITIGATION BY PRORTBITING HIM FUNDS FOF ANY TYPE OF TFSTIMONY OF EXAMINATION AND PROHIBITING HIM FROM BRING EXAMINED IN THF STATE HOSPITAL 70 DETEPMINE MITIGATING FACTORS. to hire certain witnesses to present evieerce in miticatior née for an expert psycriatris® wre coulda testify to certair mitigatine factors about Petitioner and the facts of the hie request wae overrule4, mot or the basic e evidence would re improper or wou'd not be relevant Put hecause of established Oklahoma precedert which holde that state trial tudces are witout authority under Oklahoma law to comply with a recuest for such funds because nc funee are authorized for these purposes. The Oklahoma statutory syvster faile to provide for expert witnesses of any kind even ir the discretion of the trial court and the state hospital carn onlv make a Getermination whether the defendant is competent to aid and assist his lawyer ir presentina a defense. O.S. {1971} €1171. /2 It is petitioner's contention that his conetitutional riabts under the Sixth, Fiohth and Fourteerth Amendments to the United States Constitution were violated by the court's 37° 32 0.8. 11971) S117) was repealed in 1980. The statute regardine committment is now codified in 22 0.S. 61178(2). -l2- decision denyine state funds to rire a psycria ? % mitiaating factors on bheralf of the deferdant. Since 1976, thie Court has continually recuired as constitutionally madated under the Eiatth Amendment, trat ecarital sentencine procecures crime and the particularized characteristics of the indivicuea Gefendant. Grego v. Georgia, 428 U.S. at 206. This Court reiterated these safequarcs ir FaAincse v. Oklaroma, 455 U.S. 104 (1982), by invalidatinae a death sentence imposed without the consideration of individualized miticatinse factore recuired hy the Fiehth and Fourteenth Amendments in capita Court statina: "Jyet as the state may not Fy statute preclude the sentencer from considerine anv mitiaatine sentencer, refuse to consider, as a matter of law, anv relevant mi Circumstances.” Eddincse, supra, 455 U.§. 104, (Emphagie in oricina.) at 113-118. Recentlv, this Court reaffirmed its estrone stance or individualized sentencing Py statine “what is important at the selection stace is ar individualized Aetermination on the Pasis of the character of the individual and the circumstances of thre crime. Zant v. Stephens u.s. , $1 Low. 68°) (198? citina Eddings v. Oklahoma, 4se u.S, 104 (1982); Lockett v. Ohio, 4328 U.S. S86 (1978) (plurality opinion); Roherts ‘Karrv! y. Lovisiana, 431 U.S. 633 (1977); Greac, supra at 19” (plurality opinion); Proffitt v. Florida, 428 U.S. at 251-252, (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 303-304 (1976) (plurality opinion). In Bounds v. Smith, 430 U.S. @17 (1977), this Court adhering to its earlier decision ir Yeuncer v. Gilmore, 404 u.S. 15 (1971) that law libraries are alternative sources of lecal knowledge and are constitutionally mandated, hele that the fundamental riaht of access to the courts requires prison -l3- authorities to assist inmates in the preparation anf filire of meaningful lecal papers Pv providing adecuate libraries for adecuate assistance from persons trained in the law. Justice nd of trial a man cets depends or the amount of monev re has." The principles of Griffin apply to this Court's decision to strike Gown a state practice of arantine appellate review only to persons able to afford a trial transcript. Similarly, in Dovelas v. California, 372 U.S. 383 (1963), this Court hela that an indicent was entitled to counsel on his firet direct appeal as a matter of ricrt. ris Court hase alse recocnized limite on the princip e of , protecting indicerts in the criminal tustice evetem. Ir Foes vy. Moffitt, 417 U.S. 600 (3974), this Court held that infiaerte pa ot Se had no constitutional riart to appointed course) for a Aiscretionary appeal and ir trited Seatee v. MacCollur, 426 U.S. 317 (1976) (plurality opinion), this Court rejected ar eaual protection challende to a federal statute which permits a Aietrict court to provide an indigent with a free trial transcript only if the court certifies that the challence to his conviction ig not frivilous ane the transcript is necessary to prepare his petition. Recently this Court in Rearden v. Georcia, U.S. 103 S.Ct. 2064 (1983) held that in revocation proceedings for failure to pay a fine or restitution, a sentencina court must inquire into the reasons for the failure to pay. Only if the probationer willfully refuses to pay or fails to make sufficient bonafide efforts legally to accuire the resources to pay, the court may revoke probation and sentence him to imprisonment. If the probationer could not pay despite sufficient bonafide efforts to acauire the resources to do 80, “-lé- alternative measures of punishment other than imprisonment must be considered. If alternative measures are not adeauate to meet the State's interest in punishment and deterrence, the court mav imprison a probationer wre has made eufficient honafide efforts to pav. Tris Cour® corcluded that such a depravation would be contary to the fundamental) fairness recuired hy the Fourteenth Amrendrert. The instant case is rot @ situation wherein the trial court has discretion to determine wretner tc crant funds for expert witnesees nor is it a situation where the State of Oklahoma has provided throuah their mental institutions, an opportunity to he examined for miticational evidence dealina with psychiatrists But an absolute ban due to lack of funds of an indiaent's riaht to have a Aoctcr examine him to determine mitiaatinae circumstances or rerut accravatinae circumstances. It should further re noted Oklahoma law establishes as an aaoaravatina circumstance "the existence of a probability that the defendant would commit criminal acts of violence that would constitute a cortinuinc threat tc eociety” 21 0.8. €701.12/7)/3 Thie Court, in ite recent opinion in Barefoot v. Fstelle, U.S. » $1 LW. $189 (1983), Aetermined that it is totally proper for a state psvchiatrist to testify reaardinc the defendant's profability of future acts of violence. "If the jurv may make up its mind@ about future dancerousness unaided by psychiatric testimony, jurors should not be barred from hearing the views of state psychiatrists along with the opposing views of the defendant's doctors.” 3/ This circumstance was Instructea on put not found in Petitioner's case. In footnote 5 of the Opinion in Rarefoot, this Court specifically recoanizes the problem ones indiaency miaht cause. "nor is there a contention that, despite Petitioner's claim of indiaence, the Court refused to provide an expert for Petitioner. In cases of indicency, Texas law provides for the payment of $500.00 for fexpenses incurred for purposes of investigation and expert testimony)." Oklahoma's procedure provides for no such funds for expert witnesses nor do they cive discretion in the trial court to order ther at the expense of the State nor do they allow for the trial court to send the defendant to the state hoepital for a determination on miticatina factors. An indiaent defendant in Oklahoma is without the arilitv to have psychiatrists examine him to establish mitiaatina factors and to rebut a contention of probathility of future acts of violence. In the instant case, Petitioner was precluded from presentina expert testimony in miticeation reaardinae the emotional framework of the Petitioner at the time of the evert and his aeneral psycholocical hackcround eolely hecause of his inability to hire these experts. Petitioner's ability to present evidence of this type ir mitiaation was precluded ry the state law nct authorizing the expenditure of funde for the examination by state doctors on the issues of mitiaation. Petitioner contends that the Eighth and Fourteenth Amendmerts to the Constitution of the United States and the Sixth Amendment Right to effective assistance of counsel] at the punishment stage of a capital trial reouire a standard whereby an indigent may have an opportunity to present psychological) evidence in mitigation under a set of closely defined rules established by the states. The ability to come up with five hundred to one thousand dollars for an expert should not he a basis to determine who should live and who should die. #16¢ II. THIS COURT SHOULD REVERSF PETITIONEF'S DEATH SENTENCE SUMMARILY ON THF GROUND THAT OKLAHOMA HAS FAILED TO ADHERE TO THE RFQUIREMENTS OF WITHERSPOON V. ILLINOIS BY APPROVING, IN PETITIONER'S CASE, THE FXCLUSION OF JURORS WHO MFRFLY VOICED GENERAL OBJECTIONS TO THE DEATH PENALTY AND WOULD HAVF ALLOWED THF DEATH PENALTY ™) AFFECT THEIR DELIBERATIONS. The Oklahoma Court of Crimial Appeals has never reversed a Geath sentence on Witherspoon grounds. No matter how much the trial court deviated from the auestions approved hy this Court in Witherspoon v. Illinois, 391 U.S. 610 (1968), the Court of Criminal Appeals has invariably held the jurors were properly excluded based on their often tentative eacuivocal answers. See Chanev v. State, 612 P.2d 249; Powrothan v. State, 542 P.2¢4 610; Smith v. State, 659 P.2d 330 (Okl.Cr. 1983). Since Petitioner was tried anc sentenced by a jury fror which several veniremen were excluded merely for voicina general opposition to the death penalty, as though Witherspoon has never been decided by this Court, his Geath sentence shovld be summarily reversed. In a two to one Gecision with a state trial court judae writina the majority opinion, the Oklahoma Court of Criminal Appeals overlooked hlatant Witherspoon errors. As Judae Brett conclusively demonstrates in his a@issent on Witherspoon arounds, Jurors Metivier and Musarave were improperly excusec. In the instant case, the majority of the Court of Criminal Appeals, rather than reavirina in accordance with Witherspoon that a juror assure the court that he would not automatically vote against the death penalty or that his opinion about capital punishment would prevent him from returnina a quilty verdict, has required that a veniremen's unhesitating, unambiaquous expression of a willinaness to impose the ultimate penalty be reauired hefore that juror can sit on a jury. -l]7- Ae dissentine Judce Brett points out, Juror Metivier's answer that she did not believe in takine one's life, did not reflect her unwillineness to consider death as a punishment. This ie especially true in liekt of defense counsel's cuestionine of Juror Metivier to the effect that she woulé not automatically refuse to impose the death penalty. Similarly, the majority opinion of the Oklahoma Court of Criminal Appeals totally ianores this Court's Opinion in Adars v. Texas, 448 U.S. 28 (1980). Juror Musgrave was excused merely because she could not acree to a verdict imposince thre death penalty without 1° doine violence to her conscience. he so properly stated hy Sudece Prett in his dissent: “Whether it would do violence to her conscience tf not the issue. The mere fact that one's conscience miaht he violated or affected Pv that juror’s decision to impose the death penalty, if not grounds for excusal under Witherspoon." A jury selected accordina to the interpretation placed on Witherspoon if the instant case, is one uncommonly willine to condemn a mar to Adie. Witherspoon v. Illinois, 39] U.S. at 521. This Court should summarily reverse Petitioner's death sentence or Witherspoon error will run rampant in future Oklahoma capital cases. =18 amendment preserves acainst arbitrary deprivation by the State. The liberty interest to Petitioner in proportionality review of capital sentences is as important as the statutory right to have a jury impose sentence. Petitioner contends that the Oklahoma Court of Criminal Appeals' refusal to compare this case to similar cases under Oklahoma law, violated well established procedures of proportionality review by the Oklahoma Court of Criminal Appeals. The Oklahoma Court of Criminal Appeals, in all recent cases affirming death sentences, has required this comparison. See Generally, Smith @2l- vy, State, 6589 P.2d 330 (Okl.Cr. 1983); Ake Vv. State, 6&3 P.2¢ 1/Ok1.Cr. 1983); Munn wv. State, «£8 P.2d 462 (Ok1.Cr. 1983) (Modifvine petitiorer's sentence to life imprisonment! Parke v. State, £81 P.2¢ 686 (Ok1.Cr It is hard to imacine that a state created richt to proportionality review in sentencine can he violateé bv virtue of an appellate iudce distualifyine and a state trial judcce replacina him and making a Aecieion not to crart Petitioner proportionality review comparins cimilar cases as requires under Oklahoma law. Petitioner also contends that as a matter of federal constitutional law, the estandaré of proportionality review recuired under the Fiaker are Fourteenth Amendments was violated by affirmine Petitioner's corviction without cormparine it to other Oklahoma capital convictions. As stated earlier in thie section, Oklahoma until Petitioner's case has routinely compared death cases to eacr other to determine if the deat peralty in one case is proportionate to the death penalty in another /4. This Court currently has pendine bedore it the case of Pulley v. Harris, §1 L.W. 2678 (1983) wherein this Court will deride what type of proportionality review in capital cases is recuired by the Eiahth and Fourteenth Amendments. The standard of appellate review in petitioner's case is no different than the standard condemned by the Fourth Amendment. Harris v. Pulley, 692 F.24 1183. This Court should crant certiorari to determine the appropriate proportionality review required under the Eiahth ana Fourteenth Amendments. 47 For a discussion on proportionality review in Oklahoma, see Murn v. State, 658 P.2d 482 (Okl.Cr. 1983) Plurality Opinion of Judge Cornish who excused himself in Petitioner's case. o32@ For the reasons stated above, the petitioner requests a writ of certiorari be cranted. ROBERT A. RAVITZ2 First Assistant Public Defender Oklahoma County 320 Robert S. Kerr-409 Oklahoma City, Oklahoma 73102 (408) 236-2727, ext. S5@2 CERTIFICATE OF SERVICE I, Robert A. Ravitz, certify that I mailed a copy of this Petition for Certorari and all accompanying Gocuments to Michael C. Turpen, Attorney Gereral, State of Oklahoma, Suite -23- ‘ wt be CHARLES WILLIAM DAVIS, Appellant, -vs- No. F-78-140 & F-78-141 THE STATE OF OKLAHOMA, Appellee. -OPINION- POWERS, Special Judge: The appellant was convicted of Murder in the First Degree and sentenced to death in Oklahoma County cases no. CRF-77-2905 and 2906. The jury assessed the Geath sentence after finding the following three (3) aggravating circumstances in each case: that the murder was especially heinous, atrocious or cruel; the defendant was previously convicted of a felony involving the use or threat of violence to the person; the Gefendant knowingly created a great risk of death to more than one person. On March 16, 1978, the Ronorable David M. Cook imposed the judgments and sentences, and the sentences of death were stayed by this Court in its Order of March 23, 1978, pending the resolution of this appeal. Oral argu- ment was heard by this Court on August 31, 1981. The two victims of an early morning shooting on August 13, 1977, at the appellant's apartment in Oklahona City, were Dennis McLaughlin and Robert Wayne Jones. Wounded but not killed during that same incident were Kathy Jones Rogers, also known as Kathy_> Jones Davis, and Henry Jones. A total of six (6) bullets were fired from the .38 caliber revolver. Three days prior to the homicide, the same four individuals met with the appellant at a Humpty Dumpty store parking lot in Sapulpa, apparently with reference to the marital separation of Kathy Rogers and the appellant. Robert Jones and Henry Jones, Kathy's brothers, and Dennis McLaughlin, their friend, accompanied Kathy to the Sapulpa meeting. The group then appeared at the appellant's apartment early on Saturday morning, August 13, to remove Kathy's possessions from . the apartment of her estranged husband. Kathy Rogers and Renry Jones testified that the four first stoppec by the Oklahoma City Police station to obtain protection in their visit to the appellant's apartment, but they were unsuccessful. After all of Kathy's property had been removed from the premises, the four returned to the apartment for a final survey, anc it was at this point that the appellant shot then. In his first proposition of error, the appellant maintains that the trial court denied him his right to present mitigation in his behalf and deprived him of due process and equal protection of the laws when the court failec to provide funds for expert witnesses or to give him a presentence investigation. This Court has held that there is no right to State funds to hire an investigator or a4 psychiatrist to present mitigating factors on behalf of a defendant. Eddings v. Stace, 616 P.2¢ 1159 (Ok1l.Cr.1980). The right to counsel is guaranteed by the Constitution, but that right hes not been interpreted to include expert assistance in the determination of appropriate punishment. Furthermore, the appellant's assertion that the court should have granted the requested presentence investigation report is without merit. The purpose of the presentence investigation is to provide *...a recommendation as to appropriate sentence, ané specifically a recommendation for or against probation.” Laws 1975, ch. 369, § 1; now 22 0.S.Supp.19380, § 982. That statute specifically excluces those cases in which the death penalty is imposed. And this Court has held that the denial of pretrial motions for a presentence investigation report and appointment of a psychiatrist in a case in which a defendant has been sentenced to death was mot error under this statute. Irvin v. State, 617 P.26 $88 (Okl.Cr.1960), reaffirming Bills v. State, 585 P.26 1366 (1978). The appellant alleges, in his second argument, that the jury was selected in violation of the standards mandated by the United States Supreme Court. Certain jurors were excluded for cause, over the objection of defense counsel, as a result of their beliefs TT *» regarding the death penalty. ‘ In Witherspoon v. Illinois, the Supreme Court held "...that . a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U.S. 510, 8& S.Ct. 1770, 20 L.Ed.2d 776 (1968), at 20 L.Ed.24 784-85. In a footnote to that opinion; the Court said, "The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably comnitted, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge...." Footnote 21, at 20 L.Ed.2d 785. In the case before this Court, the trial court systematically asked the jurors two questions as foliows: In a case where the law and the evidence warrant in a proper case, could you, without doing violence to your conscience, agree to a verdict imposing the Death Penalty? If the juror's reply was negative, the court asked: If you found beyond a reasonable doubt that the. Defendant in this case was guilty of Murder in the ? First Degree, and if under the evidence, facts and >, circumstances of the case the law would permit you to consider a sentence of death, are your reservations » about the Death Penalty such that regardless of the law, the facts and the circumstances of the case, you would not inflict the Death Penalty? The appellant contends that in excluding several of the jurors the trial court violated the rule in Witherspoon. A review of the record indicates that Juror Rockel was properly excluded due to her inability to positively answer that she could inflict the Geath penalty under the appropriate circumstances. Furthermore, the following jurors were properly excluded: Rood, Childress, Silloway, Derrick and Hearst. However, the exclusion of three others requires a more thorough anaivels. The court conducted the following voir dire of Juror Metivier: THE COURT: I ask you: In a case where the law and the evidence warrant, in a proper case, could you, without doing violence to your conscience, agree toa verdict imposing the Death Penalty? MS. METIVIER: I have problems with that. THE COURT: You what? MS. METIVIER: I have problems with that. THE COURT: You have problems with the Death Penalty? And I ask you a second question: If you found beyond a reasonable doubt that the Defendant was guilty of Murder in the First Degree, and if under the evidence and the facts and the circumstances of the case the law woule permit you to consider a sentence of Death, are your reservations about the Death Penalty such that regardless of the law, the facts and the circumstances of the case, you would not inflict the Death Penalty? MS. METIVIER: No. THE COURT: You would not inflict the Death Penalty in spite of the evidence, the law and the circumstances of the case? Do I undéerstand you? MS. METIVIER: Right. MR. STUART: May I be allowed to ask an additional question? THE COURT: Yes. MR. STUART: Ms. Metivier, my question, and I am asking you, do I hear you right? Are you saying that you could never impose the Death Penalty in any case? You are not saying that under a proper case, that you couldn't consider imposing the Death Penalty? ‘ MR. COATS: I object to the form of the question, Your Honor. TRE COURT: The form of the question is improper. It is sustained, MR. STUART: Ms. Metivier, you are not saying you would automatically refuse to izpose the Death Penalty in any case, are you? MS. METIVIER: No, I’m not. MR. STUART: That's all I have. THE COURT: I ask you again: If you found beyond a reasonable doubt that this Defendant was guilty of Murder in the First Degree, and if uncer the evidence and facts and circumstances of this case, the law would permit you to consider a sentence of death, are your reservations about the Death Penalty such that regardless of the law, the facts and the circumstances of the case, you woule not inflict the Death Penalty? The reason I repeat the question is because you answered that you would not under any circumstances inflict the Death Penalty when I first asked the question. How do you answer the question now? MS. METIVIER: I just don't believe in taking one's life. I'm not -=- You know, -- THE COURT: You are excused for cause. MR. STUART: May I approach the bench? THE COURT: Come to the bench. (The following proceedings were had out of the hearing of the jury.) MR. STUART: I am going to object to excusing this Juror for cause. I will move for a mistrial on-the basis of this. This Juror answered my questions of: Would you automatically refuse to impose the Death Penalty? And she saic No. THE COURT: The objection is overruled. The Juror Metivier answered "I have problems with that" when asked if she could, in a proper case, agree to imposing the death sentence. She answered “Right” when asked if she would not inflict the death penalty in spite of the evidence, the law, and the circumstances. When that question was repeated by the Court, she answered "I just don't believe in taking one’s life.® Although the Juror gave conflicting answers to questions by the Court and Counsel, her answers, when viewed in their entirety, Clearly indicated her inability to consiéer the death sentence under any circumstances. We mow examine the excusing for cause of Juror Dragus. While the majority of her answers were tentative, she positively stated that she would not inflict the death penalty. And although the question defense counsel was prohibited froz posing was no more confusing than the court's questions, it, nevertheless, was not the appropriate question. Juror Dracus had alreacy given a positive indication of her inability to vote for capital punishment. Finally, we consider the excusing on voir dire of Juror Musgrave: THE COURT: In a case where the law and the evidence warrant, in a proper case, could you, without doing violence to your conscience, agree to a verdict imposing the Death Penalty? MS. MUSGRAVE: I believe I could. THE COURT: That is not a sufficient answer. I take that as being an answer tantamount to saying that you don't know. I will ask it again. In a case where the law and the evidence warrant, that is a proper case, could you, without doing violence to your conscience, agree to a verdict imposing the Death Penalty? MS. MUSGRAVE: I don't believe I could. THE COURT: You don't believe you could? If you found beyond a reasonable doubt that the Defendant in this case was guilty of Murder in the First Degree and if under the evidence, facts and circumstances of the case the law would permit you to consider a sentence of death, are your reservations about the Death Penalty such that regardless of the law,-‘the facts and the circumstances of the case, you would not inflict the Death Penalty? MS. MUSGRAVE: No. THE COURT: Ma'am? MS. MUSGRAVE: No. I don't think I would. THE COURT: You would not? ° MS, MUSGRAVE: Huh-uh. THE COURT: Is that a positive answer? MS, MUSGRAVE: Yes, Sir. THE COURT: Or not? MS. MUSGRAVE: Yes, Sir. MR. STUART: The same objection, Your Honor. THE COURT: All right. The objection is overruled. MR. STUART: May I be allowed to ask one question? THE COURT: Yes, you may. MR. STUART: Miss Musgrave, I believe I heard you say to that final guestion that you Gon't think you would. Now, that -- Do I hear that to mean chat you could possibly impose the Death Penalty in some particular case? MS. MUSGRAVE: Yes. That is right. MR. STUART: Yes, ma'am. That's all I have. THE COURT: Well, I ask again. In this case if the law and the evidence warrant, in a proper case, if this is a proper case, could you, without doing violence to your conscience, agree to a verdict imposing the Death Penalty? I cannot accept anything short of a positive response to that question, Miss Musgrave. Yes or no? MS. MUSGRAVE: No. I would say no. THE COURT: All right. Anything further? MR. STUART: Yes, sir. May I approach the bench? THE COURT: Yes. (The following proceedings were had out of the hearing of the jury.) Mr. STUART: At this time, we move for a mistrial, and we would object to any excusing of Mrs. Musgrave for cause as on this second question she said, "I think I could." She told me she could in a proper -- She didn't say she couldn't in any case, and that is what Witherspoon is directed at, and we strenuously object to excusing this Juror. MR. COATS: I would say Counsel's questions were so leading that she would answer it -- She has fairly answered the Judge's questions set out by the Court which is proper, and we move to have her excused. MR. STUART: May I further say on the record that I think the Judge's question regarding this particular case is not the proper question. A proper case is to be determined by the Jury. This case is not in point now. They can't properly even consider it. The proper question is whether or not they could consider imposing the Death Penalty in some case or a proper case. Not this particular case. THE COURT: The Defendant's objection is overruled. The Juror will be excused for cause. (The following proceedings were had in the hearing of the jury.) THE COURT: Thank you, Mrs. Musgrave, You are excused for cause. Pirst, Juror Musgrave indicated that she believed that she could agree to the death penalty without doing violence to her conscience. The court demanded a more positive answer and she said that she didn't believe she could agree to the death penalty without its having an effect on her conscience. Then the court asked her his standard, "Would your reservations prevent you from voting for the death penalty?" question. She said, "No," followed by, "No. I don't think I would.” The defense attorney then asked if that meant she could possibly impose the death penalty in a particular case, and she said, "Yes. That is right." Finally, the court asked her his standard, "Could you agree to a verdict imposing the death penalty without its doing violence to your conscience?” question, and she answered, "No." As was the case in the voir dire of the Juror Metivier, the answers of the Juror Musgrave were also conflicting and confusing. However, when viewed in their entirety, her answers also clearly indicated her inability to consider the death sentence under any circumstances, The Supreme Court has held that @ sentence of death cannot be upheld if potential jurors are excludec from the panel imposing that punishment on the basis of their personal beliefs about the death penalty. Witherspoon, supra. The only legitimate concern upon voir dire of the jury panel is whether they will consider the imposition of the death sentence, as one of the alternatives provided by state law, should the case be appropriate. for that punishment. The voir dire examination of the jurors Metivier, Dragus ane Musgrave, as set out herein, followed the guidelines set forth in Koonce v. State, 456 P.2d 549 (Ok1.Cr.1969) and Gibson v. State, 501 p.2€ 891 (Okl.Cr.1972). When the voir dire examination is viewed in its entirety as to each juror, anc in the light most favorable to the defendant, the trial jucge could only conclude that the mind of each juror was that sai¢c juror was irrevocably committed, before the trial began, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. Their answers were ambiguous, hesitant and equivocal. The trial judge was in a position to view the facial expressions, voice inflection, and mannerism in answering the questions on voir dire. Ee evaluated the responses from the totality of the courtroom environment and experience on that day. The record supports his evaluation. Accoréingly, no error occurred in excusing the jurors. The appellant's third proposition accresses the excusing for cause of jurors who cannot state that they could consider the death penalty under Witherspoon vis a vis the challenge of jurors for implied bias, R.L. 1910, § 5859; now 22 0O.S.1981, § 660. The State's classification of this as a suggestion by the appellant that this Court ignore the mandate of the Supreme Court in Witherspoon or hold 22 0.S.1981, -§ 669, unconstitutional is unfounded. The Supreme Court did not hold that jurors who could mot consider the death penalty must be excluded, it simply said that was a valid basis for exclusion. The argument that Section 660 precludes excusal for Cause under Witherspoon has been rejected by this Court. Gibson, supra, and Koonce, supra. We are unpersuaded that these holdings should be reconsidered, In his fourth proposition, the appellant states that the jury instructions unconstitutionally shifted the burden of Proof to him to mitigate the homicide from murder to manslaughter, Grawing the Court's attention specifically to Instructions No.5, 5A, 1, 8, 9, 10, and 14. He alleges that he was reguired to prove that his actions we-e executed in the heat of passion upon adequate Provocation and in the absence of malice, which effectively forced him to prove that the homicide was manslaughter, not first degree murder, citing Sandstrom v. Montana, 442 0.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39(1979); and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); ane Gistinguishing Patterson y. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.24 281 (1977). The trial court's instructions have been examined. In Instruction No.5, the court defined and reguired proof beyond a reasonable doubt of all of the elements of murder in the first degree, with emphasis on malice. Circumstantial evidence was the subject of Instruction No.6. In the seventh instruction, manslaughter in the first degree was defined as a lesser included offense of murder in the first degree, with emphasis on absence of malice and heat of passion. Instructions No.8, 9 and 10 defined heat of passion, adequate provocation, and absence of malice. Instruction No.14 summarized the definitions of murder in the first degree and manslaugtter in the first Gegree, with emphasis on the ~ State's burden to prove all elements beyond a reasonable doubt and the operation of presumptions in the defendant's favor. The State charged the appellant with murder in the first degree and proved each and every element of that crime. Included within that crime under the facts of ‘this case is manslaughter in the first degree, and the court carefully instructed the jury regarding each and every element of that crine. See both the majority and concurring opinions in Morgan v. State, 536 P.2d 952 (Ok1.Cr.1975). The use of the word “reduce” in comparing manslaughter to murder when instructing on the heat of passion upon -9- adequate provocation, as was done in Instructions 8 and 9, does not Operate to shift the burden of proof to the defendant. The State was mot required to prove absence of malice and heat of Passion upon proof that the appellant had committed murder with malice aforethought. However, the jury was free to interpret the facts ‘proved and determine that the State had proved manslaughter rather than murder. This bears no relationship to any proof demanded of the appellant. .' The appellant maintains that Mullaney vy. Wilbur, supra, controls. In Mullaney, a statutory presumption Operated against the defendant that he had committed the homicide with malice aforethought. This presumption, however, could be rebutted upon proof, by the defendant, that he had acted in the heat of passion, Mullaney's jury was instructed that malice aforethought and heat of passion are inconsistencies and that the defendant could negate the former by proving the latter. The Supreme Court held that this was a shifting of the burden of persuasion to the Gefendant, in contravention of his right to due process of the law. In Patterson v. New York, supra, the Statutory scheme provided for the affirmative defense that the defendant had acted under an extreme emotional disturbance for which there was a reasonable excuse, The Supreme Court held that the Patterson court, unlike Mullaney, did not shift the burden to the defendant to disprove any fact essential to the offense because the affirmative defense of emotional disturbance bore no direct relationship to any element of murder. Unlike Mullaney, nothing was presumed in Patterson. The Court held, "To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue..." 53 L.Ed.2d at 291. The principal of Patterson is applicable even though Patterson involved proof of an affirmative defense. The State is not required to prove the nonexistence of a lesser included crime in order to prove the greater crime. Accordingly, Mullaney is not -10- applicable because no presumptions Operated to relieve the State of its burden to prove each and every element and shifting to the defendant of any burden of proof, Instruction No.5A, to which the Gefense's Overruled, reads as follows: You are further instructed that a Gesignt Geath may be inferred fron the fact of the when that killing is done by the use of a 4 weapon in such a manner as naturally and pro there was no Objection was © effecs killing angerous Sadly to cause death unless the circumstances raise’ a reasonable doubt whether such Gesign existed The appellant maintains that this instructio unconstitutional presumption struck Gown in Sandstr nN parallels the om v. Montana, _——— Supra. In Sanéstrom, the jury was told that "the law Presumes that @ person intends the Ordinary consequences of his y thus effectively absolving the State fron proving element beyond a reasonable doubt, The distinction is obvious. In the cas Oluntary acts," each and every e at hand, no Presumption was declared. An inference was provided, but the jury was not directed that a legal presumption should Or would be followed, As his fifth assignment of error, the appellant seexs reversal on the basis of certain instructions which he Says denied him his right to have his Claim of self-defense co jury. Specifically it is alleged that Instructions 12B misstated the law and denied him his self-defe nsidered by the No.12, 12A, ana nse theory; and that Instruction No.12A shifted the burden of Proof to him. The only objections made at trial went to 12A and 12B as repetitive ana confusing. The primary argument is that Instruction No.12, which parallels the self-defense instruction discredited by this court in Neal v. State, 597 P.2d 334 (Okl.Cr.1979), denied the appellant his right to an instruction on his theory of defense. entitled to an instruction on his defense when A defendant is that theory is Supported by the record. Holt v. State, 278 P.24a 855 (ORL. Ce. 1955). = Te The following Instruction No.12 was given by the trial court; In this case, the defendant, as one of his defenses, says that at the time of the difficulty, he did, he was acting in his necessary self defense to protect himself from the unlawful attack of his adversary, and when @ person is unlawfully attacked in such manner as to induce in him a reasonable belief that he is in danger of losing his life, or of Suffering great bocily harm, he is not required to retreat, but has the right to stand his Sround and use whatever force that seems necessary to repel the attack in order to save himself fron Ceath, or to Prevent what appears to him to be great bodily injury threatened to himself, but he should at the time use @ll reasonable means, apparent toa reasonable person under the Circumstances, to avoid such danger, before It is not necessary for this defense that the defendant's Ganger should have been actual or real, @l1l that is necessary is that the Gefendant, from his Stancpoint, and under all the circumstances in the case, had reasonable cause to believe, and dia honestly believe, there was imminent danger to his life or of great bodily injury being done to hin, ana in determining whether Or not the defendant acteg in his own necessary self Gefense, you shall view the Circumstances as they then existed from the standpoint of the Gefendant, and viewing the Circumstances from that standpoint, you shall determine whether or mot he was acting reasonably in his own necessary self defense, Should you find from the evicence in this case that the defendant: acted in his own necessary self defense, or should you-entertain a reasonable doubt thereof, you should Qive the defendant the benefit of Such doubt and acguit him. The same instruction was criticized by this Court in Neal Vv. State, supra, and the assault and battery conviction was reversed, In that decision, this Court said, "This instruction is confusing at best, It states that the appellant did not have a duty to retreat; but it then Provides that he should have used ‘'al) reasonable means,...to avoid [the] danger.'* Neal at 337, However, Neal was not reversed on the basis of that instruction alone. The evidence was not overwhelming and the Prosecutor relied on the confusing instruction to argue that the defendant had not tried to retreat before defending himself, Porter vy, State, 611 P.2d 278 (Okl.Cr.1980). -12- The record includes five instructions Gefinin and explaining the self-defense theory and applicable law. Instruction No.1ll defines justifiable homicide and introduces the concept of self-defense, Instruction No.l2 is the Neal instruction — Instruction No.12A describes th 0 circumstances under which one might reasonably fear that he is in Ganger of injury or death at the hands of the deceased resulting in a justifiable homicide Instruction No.12B defines "necessary self-defense” as "a necessity imminent at the time of the killing and not prior thereto." that instruction also qualifies the defense to the extent that, shoulé the ceceased flee and the defendant pursue him when he is no longer in danger, it is not a killing in self-defense, And, finally, Instruction No.13 deals with a situation in which the defendant is the initial aggressor, in which case self-defense does not apply. An important concept in that instruction is stated as follows: But one who is not the aggressor and is in a place where he has a right to be, when violently assaulted, Or when by the hostil [sic] conduct or Gemonstration of another, he is induced to apprehend a design on the part of the latter to take his life or inflict upon him some great bodily harm may, without s retreating, stand his ground and resort to the use of such force and violence as to hi: seems reasonably necessary for his own safety, even to the taking of y — ee ee — — - - life, and such killing will Be justifiec on the ground of self-defense, even though such danger was mot real, but apparent. [Emphasis added.) This instruction breaks down the inherent inconsistency of Instruction No.12 by further explaining the concept of neans that are reasonable to avoid the danger against which the Gefendant has acted to secure his own safety. Our thorough examination of these instructions and the law on self-defense reveals that the appellant was not denied his defense theory. Also attacked are two portions of the closing arguments by the prosecutors, which the appellant cites to bring this case directly within the Neal rule. However, an examination of those arguments reveals no improprieties nor exacerbation of any confusion created by Instruction No.12. | Finally, an attempt is made to characterize Instruction No.12A as shifting the burden, in violation of Mullaney v. Wilbur, Supra. That argument, however, is completely without merit. No ~] 3~ part of the cited instruction indicates that the defendant bears the burden to prove beyond a reasonable doubt that he acted in self @efense. Furthermore, the citation to Berrier v. Egeler, 583 F.2d 515 (6th Cir.1978), cert. den. 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2a 347 (1978), is inappropriate. In Berrier, the jury was instructed that the defendant had to prove self defense. Yet, under Michigan law, proof of the absence of sel® éefense is an element of murder, which must be proved by the State... The Sixth Circuit Court of Appeals reversed the conviction because of an unconstitutional shifting of the burden of proof, citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.£d.2d 368 (1970); Mullaney v. Wilbur, and Patterson v. New Yors, supra. However, the law in Oklahoma does not include the absence of self defense as an element of murder. No error is found. In his sixth assignment of error, the appellant argues that the trial court erroneously overruled his pretrial motion in limine to exclude a prior murder conviction from use in impeachment. The motion was not re-urged at trial, and the evidence of the prior conviction was admitted when the appellant testified in his own behalf, and not when the State cross-examined him, as had been anticipated by the pretrial motion. A motion in limine is a written pretrial motion to preclude evidence which would have no proper bearing on the issues and would prejudice the jury. Tahdooahnippah v. State, 610 P.2d 808 (Okl.Cr.1980). The ruling on a motion in limine is advisory only, and@ an incorrect ruling is not reversible error. In fact, no error occurs until the matter arises during trial, an objection is entered, and, at that time, the trial court incorrectly permits or prohibits it. Teegarden v. State, 563 P.2d 660 (Okl.Cr.1977). In the case at hand, the appellant's own testimony was the source by which the jury was exposed to the evidence of his prior conviction. No relief is available on appeal. The seventh proposition on appeal addresses the trial court's denial of the appellant's motion for continuance, filed on the first day of trial, which was based upon the pendency of a -l4- Collateral attack on the prior murder conviction in Missouri. That conviction, arising out of a guilty plea, was allegedly secured in Violation of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In interpreting the "Postponement for Cause” Statute, 22 O.S.1981, § 584, this Court has acknowledged that the fuling rests with the sound discretion of the trial court, which will not be disturbed absent abuse, and this is particularly true where the motion is offered on the date set for trial. Kirk v. State;:, 555 P.2¢ 85 (Okl.Cr.1976). Further, as the State argues on appeal, the pendency of an appeal from a conviction does not render the evidence of that conviction inadmissible. Newcomd v. State, 23 Okl.Cr. 172, 213 P. 900 (1923); now a part of the Evidence Code, at 12 0.S.1981, § 2609(e). The same rule applies to a pending collateral attack on a conviction. Therefore, Judge Cook properly exercised his discretion when he overruled the motion for continuance, knowing that the prior conviction, and evidence of the pending collateral attack, would be admissible evidence. The excusing of a juror by the trial court, on defense counsel's motion, and substitution of an alternate juror, over objection of defense counsel, is urse2 as error in the eighth assignment. The defense had entered a =ozion for a mistrial upon the court's excusing of the juror, who had expressed the fear that she would be prejudiced by her previous contact with two State's witnesses, whom she recognized when they testified. The appellant urges this Court to reconsider its holding in #ashington v. State, 568 P.2d 301 (Okl1.Cr.1977), and find, instead, that 22 0.S.1981, § 60la, operates to the exclusion of all other causes upon which a juror may be excused. Our review of the transcript indicates that the trial judge meticulously proceeded in the questioning of this juror, when she notified the court of her prior knowledse of the two witnesses, and, in the discussion with counsel, gave consideration to the argument that a mistrial should be declared. However, the court then found that an alternate juror had already been selected and -15- that defendant would not be prejudiced by the alternate. Ourct held that 22 0.5. ion of an alternate for a regular juror in the case of illness or death, is not ry : rh i h ePanlvie¢ ; ExnrnA whe : (1930), in which the California court found that the substitution i Se > hee ee a eh sie i ec to@ a had not substantially affected the rights of the defendant, This _ = 9 a : } , ‘ ' : . Court continued by acknowledging the trial court's inherent power Ok1.Cr.103, 101 P.2d 289 (1940), which relied on Bo State, 4 Okl.Cr.576, lll P. 1006 (1910) In Boutcher, this Court held, If, for any reason, the trial court is of the Opinion or even suspects that any given juror is not faic and impartial..., it is not only the right, but is is also the duty, of the court to excuse such juror either upon Or upon the mo challense. Boute . the challenge of one of the parties ion of the cour ithout such ial £ ’ t c i t The appellant seeks reversal on a minor, technical matter, Stating that the enactment of 22 0.5.1981, § 60la, abrogated the discretion of the trial judge to substitute a juror for any cause other than illness or death There is no merit to this argument. “2 , , . ~ A multiple hearsay problem is érawn to this Court's attention in proposition number nine. A statezent allegedly made by the now deceased Robert Jones relating a threat made by the appellant to him was elicited from Henry Jones on direct examination. The statement was admitted into evidence only, an in camera hearing in which the trial court scrutinized the question of the admissibility of both of the hearsay statements. The testimony of Henry Jones admitted, after the trial court's ruling, was as follows: He told me that Charlie said he had a gun and that he Ought to pull it out and shoot’ us all. (TR.510) Robert Jones, while still at the scene of the confrontation, made this statement to Henry Jones immediately after his encounter with the appellant, Charles Davis, the Wednesday before the homicide. -l6- Our examination of this twofold statemen: conmvinces us that the trial judge accurately analyzed the Statements and that Henry Jones' testimony was properly admitted. First, there was the appellant's statement to Robert Jones, in effect a threat to kill Robert and the others, This statement was properly admitted to incicate the declarant's intent toward future conduct. Shepard Vv. —_4___ United States, 299 U.S. 96, 54 $.Ct. 22 76 L.EG.196 (1933); Mutual death is not excessive or Gisproportionate to the penalty imposed in similar cases after considering both the crime and the defendant. For the reasons herein stated, the judgment and sentence appealed from should be, and the same is hereby, AFFIRMED. Judge Tom R. Cornish filed his recusesent in this appeal and the Honorable Donald E&, Powers, District Judge for the 23rd Judicial District was appointed to serve in his stead. Judge Powers authored this opinion. =26- . AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA THE HONORABLE DAVID M. COOK, DISTRICT JUDGE CHARLES WILLIAM DAVIS, appellant, was convicted of Murder in the First Degree, in Oklahoma County District Court, Cases No. CRF-77- 2905 and CRF-77-2906. He was sentenced to ceath and appeals. AFFIRMED. ROBERT A. RAVITZ ASSISTANT PUBLIC DEFENDER OKLAHOMA COUNTY OXLAHOMA CITY, OXLAHOMA Attorney for Appellant JAN ERIC CARTWRIGHT ATTORNEY GENERAL STATE OF ORLAHOMA SUSAN TALBOT ASSISTANT ATTORNEY GENERAL TOMILOU GENTRY LIDDELL LEGAL INTERN OKLAHOMA CITY, OXLAHOMA Attorneys for Appellee BUSSEY, P. J.: Concurs : BRETT, J.: Concurs in part and dissents in part While I agree that the conviction for Murder in the First Degree should be affirmed, I cannot concur with the majority that the death sentence should be affirmed because I believe that Jurors Metivier and Musgrave were excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 §.Ct. 1770, 20 L.Ed.2d 776 (1968). When the court asked Juror Metivier the question ending, *...-{AJre your reservations about the [djeath [p)enalty?" She answered, "No. A negative response to that question must be interpreted to mean, "No, mv reservations are not such that I would not inflict the death penalty.” However, the trial judge, attempting to clarify the confusing question, asked .t more simply and she indicated that she would not inflict the death penalty. -> At this point, Juror Metivier had given two answers in Girect conflict. Then the defense attorney asked her if she was saying that she would automatically refuse to impose the death penalty, and she replied, "No, I'm not." The court repeated its second question, and her reply reflected her beliefs when she said, loontusion apparently stems from the use by the court of a question couched in negative language. -27- "r just don't believe in taking on her willingness to consicer death The Supreme Court has held be upheld if potential jurors ace e's life...” It did not reflect as a punishsent. that a sentence of death cannot excluded from the panel imposing that punishment on the basis of their personal beliefs about the death penalty. Witherspoon, Supr upon voir dire of the jury panel i a. The only legitimate concern s whether they will consicer the imposition of the death sentence, as one of the alternatives provided by state law, should the case 5e appropriate for that punishment. with this in mind, the trial court's standard first question is not pertinent. he second question is confusing to read, and it * must be even more confusing to Metivier's response to the defense for cause of this juror was error. hear. Given that, ané Juror attorney's question, the excusal I also believe that the majority's analysis of the voir dire of Juror Musgrave is clearly err indicated that she believed that oneous. First, Juror Musgrave she couléd agree to the ceath penalty without doing violence-to her conscience. The court demanded a more positive answer believe she could agree to the cea and she said that she Gidn't th penalty without its having an effect on her conscience. Then the court as*ed her his standard, "Would your reservations prevent penalty?” question. She said, ” think I would.” The defense attor you from voting for the death No,” followed by, "No. I don't ney then asked if that meant she could possibly impose the death penalty in a particular case, and she said, “Yes. That is right.” standard, "Could you agree to a ve Finally, the court asked her his rdict imposing the death penalty without doing violence to your conscience?” question, and she 02 answered, “No. As I have alr eady said, whether it would do 2rhe crucial determination is whether the juror would conscientiously consider the death alternatives, not whether it wuold penalty as one of the punishment affect her conscience. ‘ . -28- _ violence to her conscience is not the issue. This voir dire is replete with confusion, and the only two things that are clear are as follows: It would affect her conscience. And this would not prevent her from considering the death penalty under the appropriate circumstances. er oe 0 nm D 5 ef 0 ’ o o n y © t ~ re’ cr ” -29- iLED ne MwNA. ArmEAlS | oa | a Qn t IN THE COURT OF CRIMINAL APPEALS OF THE STATE | CHARLES WILLIAM DAVIS, ) | Ross N Lillard, Jr. | : CLERK Petitioner, ) Respondent. ) ORDER DENYING PETITION FOR REHEARING AND DIRECTING ISSUANCE OF MANDATE ih NOW on this Ff doa day of June, 1983, after having examined the petitioner's petition for rehearing in the above styled and numbered cause, and being fully advised in the premises, this Court finds that it should be, and the same hereby is DENIED. The Clerk of this Court is directed to issue the mandate forthwith. IT IS SO ORDERED. 7 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 7 taay of 4 - June, 1983. tDING JUDGE DONALD E. POWERS, JUDGE APPENDIX C Petition for Rehearina in the Oklahoma Court of Criminal Appeals FILzZD PTR ietee, AMPEALS we bse oe oe IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MAY 31 1983 CHARLES WILLIAM DAVIS, Ross N Lillard, Jr ) ) F-78-140 -Ve- ) No. F-78-14) ) ) ) ) THE STATE OF OKLAHOMA, Respondent, PETITION FOR PEFFAPING The Petitioner, CHARLFS WILLIAM DAVIS, respectfully requests this Court reconsider its opinion of May 9, 1983 ana recall that opinion for the following reasons: 1) The Court's Opinion affirming the excusal of Jurors Musgrave and Metivier violated the Cefencent's rights under the Eighth and Fourteenth Amendments to the United States Constitution and was improper in light of the Supreme Court's continued acherence to the standard of Witherspoon v, Illinois, 391 U.S. 510 (1968). 2) Petitioner's rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated by the Court's decision Genying state funds to hire a Psychiatrist to present mitigating factors on behalf of the defendant. 3) The Eighth and Fourteenth Arenérents to the United States Constitution were violatea by the prosecutorial misconduct during the sentencing stage of the trial Proceedings. 4) The interpretation of the eggravating circumstance especially “heinous, atrocious or cruel” violates the Gefendant's due process rights under the Ficghth and Fourteenth Amendment in light of the interpretation placed on "cruel, heinous and atrocious” by the Oklahoma Court of Criminal Appeals. 5) This Court should reconsider its tolding that Oklahoma law allows for a mandatory imposition of the death penalty if aacravating circumstances outweiah miticetina circumstances or if no mitigating ci f) The Fiahth an Fe rt e > Arer - e~ Amendments to the United States Constitcti-c- Prohibited en @ppellate court fror adopting a broad e-% 7#obe construction of @n aggravating Circumstance, The Cours i- od frev concludea that petitioner's crimes cannot be saié to save inflicted a consciousness materially more Cepravee *=a- ary Person cuilty of murder. In the instart case, this Ceusrs concluded that the Petitioner perpetrated @ "mass murder” ++ imflicting Multiple wounds on his victims, was sufficient to ce-s up with the eggravating circumstance "cruel, heinous, a-4 atrocious” as defined by the Oklahoma Court of Criminal Arseals in Chanev wv, State, supra. TO categorize this Crime @© a mass pester end that therefore said mac- murder renders an offenes "crue), heinous anc atrocious” is to obviously cateaorize this egsravating Circumstance vague ana overbroad under tre E.crth and Fourteenth Amendments to the United States Cexstitution. The instant case involved a domestic Gispute wherein the Gefendant was at home when the People came to his he-e. If this Cour+ holds that "cruel, heinous ana etrocious” a>slies to a mass murder, obviously this is not the type of case to fall within the category. What we are referring to uréer those types of cases is a situation where numerous people ere killed in « Planned, intended design to kill these peo>le end not a Spur of the moment killing which though it amounts +5 melice aforethought, cannot be said to be more Cezraved than the average killing of an individual. In the instant case we Con't have what we vould have where Six people are Simultaneously executed in 2 rest locker wherein 4 this Court could legitimately categorize the actions aS a mass murder but a domestic situation where the defendant May have Createc a great risk of death to more than one person but certainly his actions cannot be said to he more Gepravec than the stancard killing. This application in the instant case, violates the United States Suprere Court's clear mandate in Godfrey v. Georgia, supra, that the retitioner's Crime reflect @ consciousness materially more Cepreve4 than any Person guilty of murder. For gaid reasons, Petiticxer: recuests this Court to reconsider its finding that this particular proposition is Cruel, heinous and atrocious and mocify Petitioner's sentence to life imprisonment. PROPOSITION V THIS COURT SHOULD RECONSIDER ITS FOLDING TRAT OKLAHOMA LAW ALLOWS FOR A MANDATORY IMPOSITION OF THE DEATH PENALTY IP AGGRAVATING CIRCUMSTANCES OUTWEIGE MITIGATING CIRCUMSTANCES OP IF “0 MITIGATING CIRCUMSTANCES WERP FOUND TO EXIST. This Court has continually refused to ecdress the issue which it seemed to conclude in Irvir v. State, 617 P.2e€ S88 (Okl.Cr. 1980), that if the aggravatire circumstances Outweich mitigating circumstances, death is manéatory. In Proposition XX, counsel again arqued that the court erred in failing to give a jury instruction which stated thas if the aggravating circumstance or circumstances do not Ourweigh the finding of one or more mitigating circumstances, the jury may still Gecline to impose the sentence of death ard sentence the defendant to life in prison. The Court stating that the instructions contained the appropriate law and that therefore there was not error to fail to instruct lixe this. Counsel calls the Court's attention to the recen+ denials of certiorari in Smith v. North Carolina; Wil.iams v. North Carolina; Pinch v. North Carolina, 103 S.Ct. 474 wherein Justice Stevens, respecting the denial of certioriari in these three North 4 Carolina cases states: "In each of these three capital cases, the trial judge instructed the jury that it hed the duty to impose the death penalty if it found thet one or rore tas r ’ »” wv “a o " ow ‘ ?? ° ‘ vé ey - are fur , §¢ ‘ " ROPFPRT A, 40° Cour 2°90 Robert S&S Ker Orlarorma Cites Or A “> a-a4° (40° 23F- COUNSFI FOP PETIT! > > ‘ , ‘ es ‘ > thor erew ? rare re 1° RECEIVED AUG 1 ronal 83 5183 IN THEE SUPPEMF COUPT OF TFE UNITED STATES ’ ved , CFPAPLES WIITLIAM Pavrs, ) Peeieiorer ) e , o"=.s ee | RECEIVED STATE OF OFLAFOM,, | AUG 1 1963 Orrice ve int LickK REFIDAVIT IN SUPPORT OF woTtrox [L__SUPREY™ rowiar 1 TO PROCEED IN FOPNA PAUPFPIS Reeponcert. I, CFAPLFS WILLIAM PAVIS, beire first @ulv eworn, state thet I am Petitioner in the above entitled case; that in evpport of my motior to proceed without Feira recuiree to pav fees, costs, or cive security therefore, I estate that hecause of my poverty I am uratle to pav the costes of saie proceedince or tec Give eecurif thorefors erase FF Reliave T ar ereielaert er I wae pre: cue? Qrarter leave *7 praoceet without crete or crounee of orvers . Avrirae procee rec rer &F ¢ Ctace ir ere , au 4 b >” Ovlahome Court of Criminal Arpreals. I further ewear that the reenorses which T have mate tr the cuestionse below relatinc te my ability to pay the cost oroesecutinre thre arpeal are true: 1. Are vou presertlyv emploved? Answer: No, I ar presertliv ir the custody of the Oklahoma Department of Corrections, servine the sentence for which I am petitionine the Court for review. I have heen imprisoned since MARCH 1979. 2. Have vou received within the past twelve monthe any income from a Fusiness, professior or other form of self-erployment, or in the forr of rent pavrentse, interest cividends, or other sources? Answer: No. 4 ecrer ooctinrnse Ss r t . om F ¥ Curecribedc e accce = : Yes, mv i Jar . tiv contains on owr ar rotec, a -- . a > je proper nA TA - wreter . No : : er ere perec - far eorre ~rwer r . ie . . re . 3 rk a &- . Dan e Affi > wa area eworr er .GR cast or checkine " > | ~ etitutiona.: acces ; ae $0.0 ‘ real estate, etc ari toe er r+ or evecluAtira orA@inra ted ane mIrerire o wre are Aanered > ar ectare r ee pereors. é ce ce*arnre ° ' evbtece me me, C- “~~ t -t Teer ~ PIFS b hef re re or ehh are © --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1645%3A1. Public record. Not legal advice.