Petition — Stafford v. Oklahoma

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NC.

RECEIVED

IN THE ‘,

OCT R : 1983

| rout OF THE CER,

October Term, 1983 SUPREME COURT U.S

——

93. 5¢3e

SUPPEME COURT OF THF UNITED STATES

ROGEF DALF STAFFORD,

Petitioner, Supreme Court. U.S

FILE D

td OCT 29 1983

STATE OF OKLAHOMA, Plova=der L. Stevas, Clerk

Respondent.

WPIT OF CFRTIORAPI TO

THF OKLAHOMA COURT OF CRIMINAL APPFALS

PETITION FOR WRIT OF CERTIORARI

ROBFRT A. RAVITZ

FIRST ASSISTANT PURLIC DEFENDFR

OKLAHOMA COUNTY

409 County Office Buildina

320 Robert S. Kerr

Oklahoma City, Oklahoma 73102

(405) 236-2727, ext. 582

COUNSEL FOR PETI1 NER

QU_.__ONS PRESFNTFD

1. Can a state appellate court consistent with the Sixth

and Fourteenth Amendments to the United States Constitution

determine effectiveness of counsel without an evidentiary

hearing where sufficient alleaations clearly demorstrate

ineffectiveness of counsel on the part of Petitioner's tria)

counsel?

2. What standard of competency under the Sixth and

Fourteenth Amendments is to be followed by a trial counse]

representing Petitioner in a capital case?

Questions Presented. « © ss esteteseevetseeeeveeesee

Opinion Below. .* . . . . . . * . . . . . .* . * * . . . .

Jurisdiction . * . . , . * * .* . .* . * . . . . . * * . .

Constitutional and Statutory Provisions Involved

in this Case . . . . . . . o . . . . . . . * . . . .

Statement of the C@G@. «css cee téeseese be eo & 0

How the federal questions were raised and decided below.

Reasons for arantina the writ. . . «6 +«-+-e-ve-e-e 28 © «

Conclusion . . . . . . . . . . . . . . . . . . . . . . .

Certificate of Service 2. ss ee ee 6 8 ee ee ee 8 le

NO.

iN TFE

SUPREME COURT OF THF UNITED STATFS

October Term, 198?

ROGFR DALE STAFFORD,

Petitioner,

-Ve

STATE OF OKLAHOMA,

Respondent.

PFTITION FOR WRIT OF CERTIORARI TO

THE OFLAHOMA COUPT OF CRIMINAI APPFALS

Petitioner prave that a Writ of Certiorari issue to review

the judament of the Oklahoma Court of Criminal Appeals entered

in thie case on the 20th day of June, 1983.

OPINION REFLOW

The opinion of the Oklahoma Court of Criminal Appeals was

published and appears at 665 P.2d 1205. It is annexed as

Appendix A to this petition. The order denvina rehearina is

unreported. It is annexed as Appendix B to this petition.

JURISDICTION

The judqment of the Court of Criminal Appeals was entered

on June 20, 1983. A timely petition for rehearina was denied

on July 26, 1983. The Fonorable Byron R. White, Associate

Justice of the Supreme Court of the United States, extended

time to file this Petition for Writ of Certiorari until October

23, 1982 by order dated September 23, 1983 A-209. Appendix C

Jurisdiction of this Court is invoked under 28 U.S.C. §1257/3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS I. .. JED IN THIS CASF

This case involves the Fourteenth Amendment to the

Constitution of the United States which provides, in relevart

part:

"..-Nor shall any state deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any persons within its jurisdiction the

ecual protection of the laws."

The Sixth Amendment to the United States Constitution

provides in relevant part:

"In all criminal prosecutions, the

accused shall enjoy the riaqht to have a

speedy anc public trial, by impartial

jury of the state and district wherein

the crime shall have heen committed...;

and to have the assistance of counsel for

his defence."

The Fiahth Amendment to the Constitution of the United

States which provides, in relevant part:

"Excessive bail shall not he recuired,...

nor cruel ane unusual punishmerts

inflicted.”

This case also involves provisions of the Oklahoma Statutes.

1. O.S. 21 €701.7 Murder ir the first degree.

A. A person commits murder in the first

Gegree when he unlawfully and with malice

aforethouart causes the death of another

human beinc. Malice is that deliberate

intention unlawfully to take away the

life of a human beirc, which is

manifested by external circumstances

capable of proof.

PF. A person also commits the crime of

murcer in the first dearee when he takes

the life of a human heina, regardless of

malice, in the commission of forcible

rape, robbery with a dangerous weapon,

kidnappine, escape from lawful custody,

first dearee buralarv or first degree

arson.

2. O.S. 21 §701.9 Punishment for murder.

A. A person who is convicted of or pleads

cuilty or nolo contendere to murder in

the first dearee shall he punished by

Geath or by imprisonment for life.

STATEMENT OF THF CASE

The petitioner, ROGFR PALF :=TAFFORD, was convicred of six

counts of murder in the first decree. 21 0.S. 701.7. Fe was

sentenced to death for each murder.

THE EVIDFNCE AT TRIAL

Accordina to the testimony of Verna Stafford, wife of

Petitioner, she, the Petitioner and his brother, Harold

Stafford, drove from Tulsa to Oklahoma City to rob a Sirloin

Stockade Restaurant. R.1l* They waited outside in the

restaurant parking lot until all the customers had left. (Tr.

535) Thev exitec their automobile and Roger Stafford knocked

or the side door of the restaurant. The manager was forced to

take them inside to the cash reaister and open the office

safe. (Tr. 537-541) Accordina to Verna Stafford, she ane

Farold held the emplovees at cunpoint while the petitioner and

the manaaer emptied the office safe which contained ahovt

$1,290.00. (Tr. 543-544) Thereafter, the employees were

ordered inside the restaurant's walk-in freezer, (Tr. 544)

wrereupon accordine to her testimony, she thereafter heard

cunfire. (Tr. 54°) All six Sirloin Stockade emplovees cied as

a result of the shootines.

*The record in the Oklahoma Court of Criminal Appeals consists

of a bound record consistino of instruments filed in the trial

court (hereinafter referred to as R.) and a trial transcript

(hereinafter referred to as Tr.)

Pamela Ann Lynch identified the petitioner as beince the

driver of a green statior waaon that almost colided with her

car that nicht by the Sirloin Stockade. The identification of

petitioner hv this witness at trial] was made over a vear after

the shootines at the Sirloin Stockade. No rewuest for an

in-camera hearina on idertification despite massive pictorial

Gisplavs in newspapers ard televisions of petitioner was

reauested. (Tr. 524)

Linda McFarland Lewis, workine as a maid at the Holiday

Mote] in Tulsa, testified she recalled petitioner slappina

Verna Stafford ane hearino Verna Stafford say she was calling

the police and Roaer Stafford savina you wouldé be in as much

trouble as I woulé and she savine "I didn't kill them Rocer,

you Gicd." And Roger savina "You were there and you were with

us." (Tr. 751)

Or cross-examination, counsel never pinpointed the time on

the 17th A@av of Julv wher petitioner supposedly made this

statement, counsel knew petitioner was at work and counse)]

further never informed the iurv at what point in time in the

investicatior of the Sirloin Stockades Aid Mrs. Lewis first

come forward with this evidence.

Terecia Darlene Rennett testified that she too was workino

in the Holiday Motel in Tulsa, Oklahoma as a maid. That on the

afternoon of July 16, 1978, she baraed into Room 119 of the

Holiday Motel (Tr. 761) She further testified that she

thereafter went to the laundry room and she saw her sister,

Rose, and in the laundry room there were some hoxes that Roaer

Stafford had asked her sister, Rose, to burn and inside the

dumpster when thev went to the dumpster was a pair of hluejeans

that appeared to have hlood on them. (Tr. 763). She identified

the boxes that Roger Stafford asked her sister to burn as boxes

similar to these at a Sirloin Stockade. (Tr. 765)

‘ie witness further tified that as she was walkina bv

petitioner, she asked him if he had heard about the Sirloin

Stockade killinas and he stated "yes" and jokinaly she said

"you're probably the one who killec them” ané he said “ves I

did." (Tr. 772-773)

Roseanna Marie Collins testified that she too worked in the

Holiday Motel in Tulsa and that she saw Roaer Stafford ard

Verna Stafford on Julv 1€, 1978. (Tr. 786) She stated she

entered the Holiday Motel room that Verna and Roger Staffore

had walked into and she saw a larce amount of monev on the hed.

(Tr. 790) She also stated she noticed that Verna had sore

boxes. (Tr. 790) She identified boxes comina from the Sirloin

Stockade as similar to the boxes she saw in the motel room that

morninc. (Tr. 791) She further testified to a conversatio:r she

had with Roger Stafford whereir she said “You didn't really

kill them did you Roaer?” to which he answered "Yes I cid."

(Tr. 797)

Witnesses from the Oklahoma State Pureau of Investisationr

ane the petitioner himself testified that while Roaer Stafford

was in Oklahoma City in approximately January, 1979, six months

after the killina, he responce? to a composite drawirac flashed

on the television and called the Oklahoma State Rureau of

Investication and stated that two of the three people in the

composite drawincs were Farold Stafford and Verna Stafforc.

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DE :~>> BFIOW

1. Petitioner reauested through his appellate counse), an

evidentiary hearing to determine the effectiveness of his trial

counsel] for purposes of appellate review. The Clahoma Court

of Criminal Appeals deniec this recuest and stated in its

opinion affirmino petitioner's conviction and sentence that

they did not need an evidentiary hearing to determine

effectiveness of counsel's representation.

2. The Oklahoma Court of Criminal Appeals in its Opinion,

assessed the effectiveness of counsel under the mockery of

justice standard statina the reasonably competent standard was

to he appliec prospectively only. Petitioner had contended on

appeal that he was deniec effective assistance of counsel under

the Sixth and Fourteenth Amendments to the United States

Constitutior.

ote

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT CFRTIORARI TO

CONSIDER WHFTFFR AN FVIDENTIARY FEARING

IS REQUIRED AS A MATTER OF LAW UNDER THF

SIXTF AND FOUPTEENTH AMENDMENT TO MAFF A

DETERMINATION ON FFFEC TIVENESS OF COUNSTL

WHERE SUFFICIENT ALLEGATIONS DFMONSTRATE

INEFFFCTIVFNESS.

A major issue involved in petitioner's direct appeal to the

Oklahoma Court of Criminal Appeals was the issue of

effectiveness of his lecal representation under the Sixth and

Fourteenth Amendments to the United States Constitution. The

Oklahoma Court of Criminal Appeals in determinina that

petitioner was aiven effective assistance of counsel determined

that counsel's performance was not so ineffective that the

trial was reduced to a farce or mockery or was shockina to the

conscience cf this court. The court found counsel's

representation was not perfunctory or bad faith or a shar./2

In the instant case, petitioner by his appellate counsel,

recuestec a remane for an evidentiary hearina on alleaations

Gealina with the effectiveness of counsel. Stafford v. State,

F 79-722 anc F 80-256, Noverber 4, 1981. This motion was

Genied. The court thereafter addresses the claim of

effectiveness of counsel under the Sixth and Fourteenth

Amendments to the United States Constitution and determines

2/ Oklahoma has adopted the reasonably competent assistance of

counsel test but has treated that test as prospective only.

See Johnson v. State, 620 P.2d 1311 (Ok].Cr. 1980).

that petitioner was effectively represented. The court

specifically notes that unverified afiidavit of present c.unsel

relatina hearsay statements shall not be used in considerina

appellant's counsel's contention of effectiveness of counsel./3

As can readily be seen from a alancina of the Upinion of

the Oklahoma Court of Criminal Appeals, there are numerous

factual issues which must be litigated to demonstrate

ineffectiveness of counsel. In addition, an evidentiary

hearing is necessary to demonstrate the critical area of lack

of investiaation and preparation on the part of defense counsel

which is a critical means of determinina effectiveness of

counsel. See United States v. Porterfielé, 624 F.2d 122 (10th

Cir. 1980). Similarly, to determine effectiveness of counsel

in the second stage of the trial proceedinas and determine why

counsel put on no evidence in mitigation, an evidertiary

hearina would develop what witnesses were available to the

Gefendant had counsel properly prepared an effective second

stace.

The necessity of determinina counsel's reasons for not

putting on this evidence and his overall] trial] strateav can

only be developed throuch an evidentiary hearince. See

Goodpaster (The Trial for Life: Effective Assistance of Counse]

in Death Penalty Cases) 58 N.Y.U. Law Review 274 (1983).

3/ The Oklahoma Court of Criminal Appeals has iever addressed

the issue whether a defendant who alleqes effectiveness of

counsel is entitled to an evidentiary hearing on

post-conviction relief. Trh‘s issue is currently pendina before

the Oklahoma Court of Criminal Appeals. Parks v. State, PC

-83-461 (Auaqust 5, 1983).

Similarly, due process iS violated when the defendant is

precluded from obtainine a complete and effective review o. his

conviction because his counsel has chosen not to file a

complete record. Entsminaer v. Iowa, 386 U.S. 746, 752, 87

S.Ct. 1402, 1404 (1967). In the instant case, counsel had voir

Gir. examination recorded but then in his original desiqnation,

failed to include voir dire and supplementally asked for the

voir dire proceedinas. The supplemental portions of these

proceedings were never served on the court reporter and

therefore not available for appellate consideration. See

Stafford v. State, supra at 655 P.2d 1213. The reasons for

counsel's failure to serve the court reporter should he

Getermined by an evidentiary hearine. Also, an evidentiary

hearing would determine the reason for the ommission of

specific errors in petitioner's motion for new trial by his

trial counsel which are necessary in order to preserve error

for appellate review in the State of Oklahoma. McDuffie v.

State, 651 P.2d 1055 (Ok1.Cr. 1987). Further, a review of the

Original record in the instant case demonstrates petitioner's

trial counsel was initially his appellate counsel] ané continved

to be as appellant counsel until he failed to file a hrief at

the Court of Criminal Appeals whereupon the Court of Criminal]

Appeals Ordered the District Court to appoint outside counsel

or find new counsel for petitioner and the rezsons why trial

counsel failed to properly file an appeal could have also been

explored in said evidentiary hearing.

From just a review of a cold trial record, it is impossible

to tell what procedures trial counsel followed in determinina

that television cameras should be allowed to televise the

proceedina and under what hasis the representation of

petitioner had been secured by trial counsel and whether these

factors violated the petitioner's right to effective assistance

of counsel anc what prejudice r- have resulted.

-10-

Failure to arant Petitioner an evidentiary hearing rendered

any discussion of effectiveness of counse!] incomplete. The

findina of the Oklahoma Court of Criminal Appeals that counsel

was competent absent an evidentiary hearina, is inconsistent

with the Sixth and Fourteenth Amendments to the United States

Constitution to effective assistance of counsel. This Court

should crant certiorari and hold under the Sixth and Fourteenth

Amendments that where sufficient alleaations demonstrate a

Claim of effectiveness of counsel, a hearina must be held on

these alleqations to determine their validity.

@jl-

ees

THIS TOURT SHOULD GRANT CERTIORARI TO

DETERMINE THE APPROPRIATE STANDARD FOR

REVIEW OF CLAIMS OF INFFFFCTIVE

ASSISTANCE OF COUNSEL.

The Oklahoma Court of Criminal Appeals in the instant case

judged the effectiveness of counsel's representation under the

mockery of justice standard. This was so despite the fact that

approximately three years prior to the decision of the Court of

Criminal Appeals in Stafford, the Oklahoma Court of Criminal

Appeals adopted the reasonably competent assistance of counsel

test. The Oklahoma Court of Criminal Appeals applied this test

prospectively only and finding that Stefford was tried prior to

the ennunciation of this standerd addressed his representation

under the farce or mockery of justice standard./4

This Court ig currently faced with determinina the correct

standard for review of claims of ineffective assistance of

counsel. See Strickland v. Washinaton, 82-1554. 693 F.2d 1243

(Sth Cir. em banc). Counsel reouests that this Court arant

certiorari and reverse the Oklahoma Court of Criminal Appeals

for followina the sham, mockery of justice standard in

determinina effective assistance of counsel] under the Sixth and

Fourteenth Amendments.

4/ This interpretation appears to be inconsistent with the

Tenth Circuit Court of Appeals' interpretation of effectiveness

of counsel and the prospective application of said standard.

See Runnels vy. Hess, 653 F.2d 1364 (10th Cir. 1981) and Gaines

v. Hess, 662 F.20 1371 (1981) reauirino the following of the

reasonably competent assistance of counsel test to cases tried

prior to its ennunciation of that standard in Dyer v. Crisp,

613 F.2d 275 (10th Cir. 1980).

-]2-

CONCLUSION

For the reasons stated above, the petitioner requests a

writ of certiorari be aranted.

Respectfully submitted,

5) » 7

Lite P és Sack

ROBERT A. RAVITZ e

First Assistant Public Defender

Oklahoma County

320 Robert S. Kerr-409

Oklahoma City, Oklahoma 7310?

(405) 236-2727, ext. 582

COUNSEL FOR PETITIONER

CEPTIFICATE OF SFRVICF

I, Robert A. PRavitz, certifv that I mailed a copy of this

Petition for Certorari and all accompanving documents to

Michael C. Turpen, Attorney General, State of Oklahoma, Suite

- NX

112, State Capitol, Oklahoma City, Oklahoma 73105 this / $

Gav of October, 1983.

;

LieteTD st yen

RORER™ A. RAVI?

-13-

APPENDIY A

Opinion of the Oklahoma

Court of Criminal Appeals

STAFFORD v. STATE Okl. 1205

Cite as 665 P24 1205 (OKLCr. 1963)

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 doing violence to

your conscience?” question, and she answer-

ed, “No.”? As I have already said, whether

it would do violence to her conscience is not

the issue. This voir dire is replete with

confusion, and the only two things that are

clear are a: follows: It would affect her

conscience. And this would not prevent her

from considering the death penaliy under

the appropriate circumstances.

The exclusion of Juror Musgrave was er-

ror.

For these reasons, | believe that the sen-

terce should be modified to imprisonment

for life.

Roger Dale STAFFORD, Sr. Appellant,

The STATE of Oklahoma, Appellee.

No. F-79-722.

Court of Criminal Appeals of Oklahoma.

June 20, 1983.

Rehearing Denied July 26, 1983.

Defendant was convicted in the Dis-

trict Court, Oklahoma County, Charles L.

Owens, J., of six counts of murder in the

first degree. The jury imposed the death

penalty on all counts, and defendant ap-

pealed. The Court of Criminal Appeals,

Cornish, J., held that: (1) defendant was

not denied effective assistance of counsel;

(2) testimony of defendant's wife did not

Violate husband and wife privilege, since

2. The crucial determination is whether the jur-

Or would conscientiously consider the death

063 P26—27

trial judge limited wife’s testimony to her

personal observations and conversations

with her husband which were made in pres-

ence of third persons; (3) testimony of wit-

ness as to conversation she overheard be-

tween defendant and his wife was admissi-

ble, even if conversation was intended to be

confidential; (4) evidence was sufficient to

support finding that murders were especial-

ly heinous, atrocious, or cruel; (5) evidence

was sufficient to support finding that mur-

ders were committed for purpose of avoid-

ing or preventing lawful arrest or prosecu-

tion; and (6) evidence was sufficient to

support finding that there existed probabili-

ty that defendant would commit criminal

acts of violence that would constitute con-

tinuing threat to society.

Affirmed.

1. Constitutional Law <=266(7)

Homicide 351

Statute which provides that in order to

impose sentence of death jury must unani-

mously find at least one aggravating cir-

cumstance beyond a reasonable doubt, and

if jury does find aggravating circums*ance

exists it must determine whether aggravat-

ing circumstance is outweighed by finding

of one or more mitigating circumstances,

does not offend Eighth or Fourteenth

Amendments by unconstitutionally shifting

burden of proof to defendant by requiring

him to present evidence in mitigation of

death penalty, since statute clearly places

burden of proof on State to prove beyond

reasonable doubt existence of any aggra-

vating circumstances, and defendant is

merely required to come forward with evi-

dence of any mitig.ting circumstances, if he

wishes to do so because mitigating circum-

stances are peculiarly within knowledge of

defendant. 21 0.S.1981, § 701.11; US.CA

Const.Amends. 8, 14.

2. Homicide 3h

Defendant in first-degree murder pros-

ecution was not entitled to preliminary

penalty as one of the punishment alternatives,

not whether it would affect her conscience.

1206 Oki.

hearing on aggravating circumstances State

intended to prove.

3. Criminal Law o641.13(1)

To support defendant's contention that

he was denied effective assistance of coun-

sel, defendant must show that counsel's per-

formance was so ineffective that trial was

reduced to farce or mockery of justice, or

was shocking to conscience of Court of

Criminal Appeals, or that counsel's services

were only perfunctory, in bad faith, a sham,

a pretense, or without adequate opportunity

for conference and preparation; burden is a

heavy one, and is not satisfied by simply

pointing out possible errors in counsel's

judgment, or lack of success in defense.

U.S.C.A. Const.Amend. 6.

4. Criminal Law 905, 954(1)

Office of motion for new trial is to put

trial judge on notice of alleged errors so

that he or she can take curative action, and

specific statement of allegations of error in

motion for new trial is necessary in order to

preserve such error for appellate review.

5. Criminal Law 641.13(7)

Omission of nonmeritorious arguments

from motion for new trial does not evidence

attorney incompetence.

6. Criminal Law o641.13(2)

Defendant was not denied effective

representation on ground that trial counsel

permitted television cameras in courtroom

to defendant's detriment, where defendant

personally approved presence of cameras

after being fully advised of his rights in

open court by trial judge, there was no

indication that ethical canon which limits

number end kind of cameras and micro-

phones and enjoins disruptive use of such

equipment was violated, jury was seques-

tered, and there was no showing that they

were exposed to resulting news coverage.

U S.C.A. Const.Amend. 6; Code of Jud.Con-

duct, Canon 3, subd. A(7), 5 O.S.A. Ch. 1,

App. 4.

7. Criminal Law = 1128(2)

Where defendant contended that trial

counsel unethically solicited representation,

improperly contracted for publication

665 PACIFIC REPORTER, 2d SERIES

rights, and breached promise to provide all

funds necessary for defense, but conten-

tions rested on facts outside record, and

defendant submitted, on appeal, unverified

affidavit, and a purported but unauthenti-

cated page from defense trial notes, Court

of Criminal Appeals would not consider

such contentions; it was improper to permit

litigation of factual issues by such ex parte

affidavits and attachments on appeal.

8 Criminal Law 641.13(1)

An cthical violation, standing alone,

does not constitute ineffective assistance of

counsel. U.S.C.A. Const.Amend. 6.

9. Criminal Law 641.13(6)

Defendant was not denied effective

representation on ground that counsel

failed to investigate his psychiatric back-

ground in order to offer such evidence in

mitigation during sentencing hearing,

where allegations supposed existence of fa-

vorable psychiatric testimony, and record

did not support supposition. U.S.C.A.

Const.Amend. 6.

10. Criminal Law >641.13(2)

Defendant was not denied effective

counsel on ground that trial counsel failed

to interview him for trial, where allegation

was based on isolated portion of testimony

of defendant, which when viewed with oth-

er relevant testimony made it clear that

counsel did in fact confer with defendant

and that defendant, in isolated portion,

merely meant to convey that counsel had

not coached his testimony or told him what

to say. U.S.C.A. Const.Amend. 6.

11. Criminal Law @641.13(7)

Where, in sentencing hearing, both

State and defense opted to rely on evidence

submitted in first stage guilt proceeding,

neither side offered additional evidence in

second stage, jury was instructed that it

could consider in sentencing stage any evi-

dence admitted throughout trial by either

side, and defendant did not indicate what

additional evidence could or should have

been offered in sentencing hearing, failure

of defense counsel to offer any evidence

during sentencing proceeding did not com

STAFFORD v. STATE

Okl. 1207

Cite as 665 P24 1205 (OkLCr. 1983)

stitute ineffective representation. U.S.C.A.

Const.Amend. 6.

12. Criminal Law 641.13(1)

Hindsight is not proper measure of ade-

quacy of legal representation. U.S.C.A.

Const.Amend. 6.

13. Criminal Law =641.13(6)

Calling a former cellmate to witness

stand without first obtaining sworn state-

ment from witness, who gave testimony

damaging to defendant, did not constitute

ineffective representation on part of de-

fense counsel, where counsel! judged it ur-

gent to cal] witness to rebut prosecution's

witness, and witness had represented that

he would testify favorably to defense, coun-

sel’s action was, at most an error of judg-

ment. U.S.C.A. Const.Amend. 6.

14. Criminal Law ¢=641.13(2)

Whether or not voir dire and similar

proceedings should be recorded is a matter

of trial tactics, and decision not to have

such proceedings recorded is not ineffective

assistance of counsel, absent supplementa-

tion of record by affidavit or pleading,

showing alleged prejudicial occurrences;

game rule governs counsel's decision wheth-

er to designate voir dire and other proceed-

ings for inclusion in record on appeal. U.S.

C.A. Const.Amend. 6.

15. Criminal Law @=641.13(7)

There was no basis for finding that

defense counsel's failure to designate voir

dire proceedings for inclusion in record on

appeal constituted ineffective assistance,

where defendant's suggestion that jurors

might have been excluded for cause at voir

dire in violation of Witherspoon rule was

refuted by defense argument at trial that

judge improperly applied majority opinion

in Witherspoon at voir dire, rather than the

specially concurring opinion in that case, it

was alleged at trial that eight jurors were

excused for cause under majority opinion in

Witherspoon, and trial judge remarked that

he was amazed at small number who went

7 for that reason. U.S.C.A. Const.Amend.

16. Criminal Law @641.13(2)

Where defense counsel filed numerous

pretrial motions on defendant's behalf, in-

terposed frequent objections during prose-

cution’s case, vigorously cross-examined

State’s witnesses, placed defendant on

stand in an effort to establish an alibi de-

fense, and, though not offering evidence in

sentencing hearing, counsel argued mitigat-

ing circumstances to jury and made impas-

sioned plea for defendant's life, defendant

was not denied effective assistance of coun-

sel. U.S.C.A. Const.Amend. 6.

17. Criminal Law @438(1)

Admissibility of photographs lies with-

in sound discretion of trial judge.

18. Criminal Law @=438(6)

Six color photographs depicting five

employees shot to death in freezer of res-

taurant were properly introduced in evi-

dence in murder prosecution, where photo-

graphs illustrated medical examiner's testi-

mony, and enabled jury to view manner in

which victims were killed, thus corroborat-

ing testimony of witness.

19. Witnesses e193

Testimony of wife of defendant did not

violate husband-wife privilege, where trial

jude specifically limited wife's testimony

to her personal observations and conversa-

tions with her husband which were made in

presence of third persons, since such conver-

sations in presence of third party were not

of confidential nature. 12 0.S.1981, § 2504,

subds. A, B.

20. Witnesses <= 193

Irrespective of whether communica-

tions between husband and wife are intend-

ed to be confidential, third persons may

testify as to conversations overheard,

whether accidentally or by design. 12 OS.

1981, § 2504, subds. A, B.

21. Witnesses 193

Testimony of witness who accidentally

overheard conversation between defendant

and wife was properly admitted, despitc

fact that conversation was intended to be

confidential. 12 0.8.1981, § 2504, subds. A,

1208 Oki.

22. Criminal Law o> 126(1)

Resolution of issue of whether trial

court errs in denying application for change

of venue depends upon whether defendant

establishes that inhabitants of county in

which trial is held have such fixed opinions

as to his guilt that he could not receive a

fair trial by an impartial jury.

23. Criminal Law = 126(2)

Trial court did not abuse its discretion

in denying application for change of venue

in murder prosecution, where news persons

testified that case had received extensive

coverage, but that references to defendant

were always prefaced by such qualifying

language as “accused,” “alleged” and “sus-

pected,” and transcript revealed that State

offered 50 affidavits of residents of county

which stated that media coverage of case

had been fair, that an unbiased jury could

be selected in county, and they had formed

no opinions as to defendant’s guilt or inno-

cence.

24. Criminal Law 2=1115(2)

Where defendant claimed that trial

court erred in denying motion for an indi-

vidual voir dire of prospective jurors, but

transcript of voir dire was not in record on

appeal, Court of Criminal Appeals would

assume that trial judge’s ruling was correct.

25. Constitutional Law 2 268(5)

Where defendant claimed that State

deliberately withheld exculpatory written

statement given by defendant's wife, but

record was unciear as to whether defense

counsel received copy of statement, defend-

ant’s due process rights were not violated;

even if prosecution did fail to provide de-

fense with statement, it did no* affect out-

come of trial as prosecution presented evi-

dence of statement to jury for their consid-

eration. U.S.C.A. Const.Amend. 14.

26. Criminal Law ¢=412.1(3)

Where, while defendant was in custody

prior to his appearance before magistrate,

he was informed that he was being held on

a murder complaint, he was read his Miran-

da rights, he was questioned in regard to

slayings, and he gave statement prior to

being taken before magistrate for initial

665 PACIFIC REPORTER, 2d SERIES

arraignment, defendant did not meet bur-

den of establishing prejudice by reason of

two-day delay in taking him before magis-

trate.

27. Criminal Law 423(3)

Testimony of defendant's wife as to

statement made by accomplice that he

would go ahead and get guns ready was not

hearsay, since it was made by a coconspira-

tor of a party during course and in further-

ance of conspiracy. 12 0.S.1981, § 2801,

subd. 4, par. b(5); U.S.C.A. Const.Amend. 6.

28. Criminal Law 4192)

Statement of victim that he couldn't

understand why people had to take other

people’s money and why they couldn't work

for themselves did not constitute hearsay

since statement was not offered to prove

truth of matter asserted but was relevant

solely because it was made, and reliability

of statement was not dependent upon ve-

racity of a declarant unavailable for cross-

examination. 12 0.S.1981, § 2801, subd. 3.

29. Homicide 354

Death sentences were not imposed un-

der influence of passion, prejudice or any

other arbitrary factor, where, although vic

tims were employed and presumably resided

in county where trial was held and high

public feeling could be expected, transcript

of murder prosecution did not reflect any

bias or prejudice, evidence against defend-

ant was overwhelming, and in itself provid-

ed ample support for verdict. 21 0.S.1981,

§ 701.13, subd. C, par. 1.

30. Homicide 354

Evidence in murder prosecution, includ-

ing evidence that defendant crowded six

victims into meat freezer the size of a closet

and, with aid of accomplice, opened fire at

close range, was sufficient to show aggra-

vating circumstance that defendant know-

ingly created great risk of death to more

than one person. 21 0.S.1981, § 701.12

subd. 2

31. Homicide 354

Evidence in murder prosecution, includ-

ing evidence that victims anxiously inquired

STAFFORD v. STATE

Okl. 1209

Cite as 665 P24 1205 (OKLCr. 1963)

concerning their safety several times during

course of robbery, that they were repeated-

ly assured they would not be harmed, even

as they were forced into meat freezer and

ordered to sit on floor, that there was a lot

of screaming when defendant and accom-

plice opened fire, and that several victims

were shot from three to five times, was

sufficient to support finding of aggravating

circumstance that murders were especially

heinous, atrocious, or cruel. 21 0.S.1981,

§ 701.12, subd. 4.

32. Homicide 354

Evidence in murder prosecution, includ-

ing evidence that as victim entered freezer,

he told robbers that he would see to it that

they would be caught so as to spare himself

any similar ordeal in the future, and that

defendant thereafter pressured fellow rob-

ber into helping shoot witnesses contrary to

plan, was sufficient to support finding of

aggravating circumstance that murders

were committed for purpose of avoiding or

preventing lawful arrest or prosecution. 21

0.S.1981, § 701.12, subd. 5.

33. Homicide 354

Circumstances of offense may furnish

extremely probative evidence of probability

of future acts of violence. 21 0.S.1981,

§ 701.12, subd. 7.

MM. Homicide 354

Evidence in murder prosecution, includ-

ing evidence of style in which murders were

carried out, coupled with defendant's shock-

ingly calloused attitude, and later threat

against witness, was sufficient to sustain

finding of aggravating circumstance that

there existed probability that defendant

would commit criminal acts of violence that

would constitute continuing threat to socie-

ty. 21 .0.S.1981, § 701.12, subd. 7.

35. Homicide 354

Death sentences imposed in murder

prosecution were not excessive or dispropor-

tionate compared with penalty imposed in

similar cases, considering both crime and

defendant. 21 0.S.1981, § 701.13, subd. C,

par. 3.

An appeal from the District Court of

Okianhoma County; Charles L. Owens, Dis-

tnct Judge.

Roger Dale Stafford, appellant, was con-

victed on six counts of Murder in the First

Degree in Oklahoma County Case No.

CRF-79-926. The jury imposed the death

penalty on all counts. The appellant per

fected an appeal to this Court. The judg-

ments and sentences are AFFIRMED.

Garvin A. Isaacs, Isaacs & Angel, Oklaho-

ma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan

Talbot, Asst. Atty. Gen., Chief, Appellate

Crim. Div., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

Roger Dale Stafford was convicted on six

counts of Murder in the First Degree and

sentenced to death.

On July 16, 1978, Roger Stafford, his

wife, Verna Stafford, and his brother, Ha-

rold Stafford, drove from Tulsa to Oklaho-

ma City to rob the Sirloin Stockade Restau-

rant. The trio waited in the restaurant

parking lot until all the customers had left.

At around 10:00 p.m. they exited their auto-

mobile and Roger Stafford knocked on the

side door of the restaurant. The manager

answered the door and was greeted by Rog-

er and Harold Stafford pointing guns at

him. They forced him to take them to the

cash register and the office safe.

Inside the restaurant, the manager began

taunting them, saying that he could not

understand why people rob others instead

of working for themselves. Roger Stafford

hit the manager and demanded that he call

his employees to the cash register. The

manager complied with the demand.

Harold and Verna Stafford held the em-

ployees at gunpoint while the appellant and

the manager emptied the office safe which

contained about $1290.00. After they

obtained the money, the employces were

ordered inside the restaurant's walk-in

freezer. The appellant then asked Harold

Stafford to help him in the freezer. Harold

1210 Oki.

reminded the appeliant that no one was to

be hurt. The appellant retorted that “they

are going to get what they deserve.” He

then shot the only black employee, and both

men opened fire on the remaining employ-

ees. Verna Stafford testified that she

heard a lot of gunfire and screaming.

Roger Stafford then told Verna that it

was time for her to take part. He placed

his gun in Verna’s hand and helped her pull

the trigger. All six Sirloin Stockade em-

ployees died as a result of the shootings.

[1] The appellant argues that 21 OS.

1981, § 701.11 unconstitutionally shifts the

burden of proof to the defendant by requir-

ing him to present evidence in mitigation of

the death penalty. Section 701.11 mandates

that in order to impose a sentence of death

the jury must unanimously find at least one

aggravating circumstance beyond a reason-

able doubt. Additionally, if the jury does

find that an aggravating circumstance ex-

ists, it must determine whether the aggra-

vating circumstance(s) is outweighed by the

finding of one or more mitigating circ'im-

stances.

Section 701.11 clearly places the burden

of proof on the State to prove beyond a

reasonable doubt the existence of any ag-

gravating circumstances. The defendant is

merely required to come forward with evi-

dence of any mitigating circumstances, if he

wishes to do so. The mitigating circum-

stances which ey*yt_in any given case are

peculiarly within The knowledge of the de-

fendant. We hold that this statutory

scheme does not offend the Eighth or the

Fourteenth Amendments of the United

States Constitution. Parks v. State, 651

P.2d 686 (Okl.Cr.1982). We further find

that this procedure was implicitly upheld by

the U.S. Supreme Court in Lockett v. Ohio,

438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973

(1978).

[2] Stafford also contends that he

should have been granted a preliminary

hearing on the aggravating circumstances

665 PACIFIC REPORTER, 2d SERIES

the State intended to prove. We addressed

this issue in Johnson v. State, 665 P.2d 815

(Ok1.Cr.1983), and Brewer v. State, 650 P.2d

54 (OkI.Cr.1982), where we rejected the ar-

gument that a preliminary hearing is re-

quired on the bill of particulars in a capital

case. We find these cases to be dispositive

of the issue at bar.

[3] Appellant next contends that he was

denied the effective assistance of counsel.

This case was tried prior to Johnson v.

State, 620 P.2d 1311 (Okl.Cr.1980), wherein

we prospectively adopted the “reasonably

competent assistance of counsel” test. Ac-

cordingly, appellant must show that coun-

sel’s performance was so ineffective that

the trial was reduced to a farce or mockery

of justice, or was shocking to the conscience

of this Court, or that counsel's services were

only perfunctory, in bad faith, « sham, a

pretense, or without adequate opportunity

for conference and preparation. The bur-

den is a heavy one, and is not satisfied by

simply pointing out possible errors in coun-

sel's judgment, or lack of success in the

defense. See Phillips v. State, 650 P.2d 876

(Ok1.Cr.1982).

A number of alleged instances of attor-

ney ineffectiveness are set out in appel-

lant's briefs. He contends that the motion

for new trial was “feeble”, reflecting in-

competence. He appears to complain of the

omission from that pleading of many of the

allegations of error now urged on eppeal.

[4,5] The office of the motion for new

trial is to put the trial judge on notice of

alleged errors so that he or she can take

curative action, and specific statement of

the allegations of error in the motion for

new trial is necessary in order to preserve

such error for appellate review. See

McDuffie v. State, 651 P.2d 1055 (Okl.Cr.

1982). We have fully reviewed the errors

alleged on appeal, and we find that none

are sufficient to warrant reversal or modifi-

cation. The omission of nonmeritorious ar

guments from the motion for new trial does

not evidence attorney incompetence. See

STAFFORD v. STATE

Okl. 1211

Cite as 665 P24 1205 (OKLCr. 1963)

People v. Tedder, 83 Ill.App.3d 874, 39 IIL.

Dec. 53, 404 N.E.2d 437 (1980).

[6] Appellant next contends that trial

counsel permitted television cameras in the

courtroom to appellant's detriment. How-

ever, it is clear that appellant personally

approved the presence of such equipment

after being fully advised of his rights in

open court by the trial judge. (Transcript

of Hearing as to Televised Proceedings, 3-

6.) This is consistent with his prior action

at an earlier stage of the proceedings while

represented by other counsel. [Appearance

Docket, O.R. 364.)

There is no indication that Canon %A\7),

5 0.S.1981, Ch. 1, App. 4, which limits the

number and kind of cameras and micro-

phones and enjoins the disruptive use of

such equipment, was not strictly complied

with in this matter. Finally, the jury was

sequestered, and there is no showing that

they were exposed to the resulting news

coverage.

(7] Appellant further contends that trial

counsel unethically solicited the representa-

tion, improperly contracted for publication

rights in the case, and breached a promise

to provide all the funds necessary for the

defense. These contentions rest on alleged

facts wholly outside the record. We denied

& motion to remand for an evidentiary hear-

ing on similar allegations. Stafford v.

State, F-79-722 and F-80-256, November

4, 1981.

In order to prove the necessary facts,

appellant has submitted with his brief the

unverified affidavit of present counsel re-

lating the hearsay statements of named and

unnamed third persons, and a purported but

unauthenticated page from defense trial

notes in the case. We deem it improper to

permit the litigation of such factual issues

by ex parte affidavits and attachments on

appeal. Such procedure has been con-

demned in other jurisdictions. See United

States v. Thompson, 475 F.2d 931 (D.C.Cir.

1973); State v. Gross, 221 Kan. 98, 558 P.2d

665 (1976); Pollan v. State, 612 S.W.2d 594

(Tex.Cr.App.1981); People v. Penn, 70 Mich.

App. 638, 247 N.W.2d 575 (1976).

[8] However, we are of the opinion,

from a careful reading of the entire tran-

script and original record, that there is a

sufficient record before us to resolve the

appellant’s allegation that he was preju-

diced by the existence of a contract be-

tween himself and trial counsel, J. Malone

Brewer, because Brewer failed to uphold his

end of the bargain, to wit: the investiga-

tion and presentatior. of a defense at trial.

We have reviewed each of the alleged flaws

in counsel's performance in light of the

alleged conflict of interest. The trial tran-

script amply demonstrates that, Stafford

was neither prejudiced nor otherwise ad-

versely affected by the possible existence or

breach of any contract with his trial coun-

sel. See United States v. Hearst, 638 F.2d

1190 (9th Cir.1980), cert. den. 451 U.S. 938,

101 S.Ct. 2018, 66 L.Ed.2c. 325. Even if

there was proof of the ex'stence of a con-

tract, it would merit his cause nothing. An

ethical violation, standing alone, does not

constitute ineffective assistance of counsel.

(9] Appellant urges that trial counsel

failed to investigate appellant's psychiatric

background since he did not offer such evi-

dence in mitigation during the sentencing

hearing. This argument supposes the exist-

ence of favorable psychiatric testimony.

The record does not support the supposition.

Appellant was delivered to Eastern State

Hospital in Vinita, Oklahoma, on March 27,

1979, for various treatments, including

“complete psychological profile” and “com-

plete psychiatric examination and evalua-

tion.” He was to be held up to sixty days,

but was discharged a short time later on

April 18, 1979. Prior to trial, trial counsel

moved for the production of the psychologi-

cal evaluation expressing the belief that it

would be exculpatory. Although the dispo-

sition of this request is not clear, a commu-

nication from the prosecutor's office to de-

fense counsel dated October 4, 1979, indi-

cates that all requested reports were deliv-

ered to trial counsel.

Appellant has the burden of proving his

ineffectiveness of counsel argument. Phil-

lips v. State, supra. The crucial psychologi-

1212 Oki.

cal evaluation is not in the record on appeal,

and we may not assume that it was favor-

able to the defense. Appellant's suggestion

that he was operated on for a brain tumor

at the age of twelve, and that he has been

in and out of mental institutions, is wholly

unsupported by the record.

{10} Appellant next urges that trial

counsel! failed to interview him before trial.

This is based on an isolated portion of ap-

pellant’s testimony at trial.'! Viewed with

other relevant testimony, it appears that

counsel did in fact confer with appellant

and that appellant merely meant to convey

that counsel had not coached his testimony

or told him what to say.?

{11] Appellant further urges that coun-

sel failed to offer any evidence during the

second stage sentencing hearing, and that

the jury therefore had no basis for deciding

punishment. However, both the State and

the defense opted to rely on the evidence

submitted in the first stage guilt proceed-

ing, neither side offering additional evi-

dence in the second stage. [Tr. 1176 and

1177.) The jury was instructed that it

could considur in the sentencing stage any

evidence a¢:vitted throughout the trial by

either side. Appellant does not indicate

what additional evidence could or should

have been offered in the sentencing hear-

1. The prosecutor cross-examined appellant at

Tr. 986

Q. All right. Now, you said something yes-

terday that | may have misunderstood.

Did you tell us that you had never talked to

Mr. Brewer about your testimony in this case?

A. That's right.

Q. Never at any time in preparation for this

rather serious case, did you ever talk to hin

about what your testimony would be?

A. No, sir.

Q. Did you ever talk to anybody about it?

ny of the defense lawyers?

No, sir.

So they didn’t know until you went on

stand right now or yesterday what you

were going to say about where you were and

what you had done?

A Right.

2. De ense counsel elicited the following from

appeilant on direct and re-direct examination at

Tr. 939-940 and 1000:

Q. At any point in time through this trial,

have | told you what to say?

A. No

665 PACIFIC REPORTER, 2d SERIES

ing. See Collins v. State, 271 Ark. 825, 611

S.W.2d 182 (1981).

Appellant next argues that trial counsel

called a former cellmate to the witness

stand without first obtaining a sworn state-

ment from the witness. On the morning of

the f.iin day of trial, the State produced a

second former cellmate who testified con-

cerning incriminating statements made by

appellant. In order to blunt the effect of

this testimony, the witness in question was

called to the stand that afternoon. Appel-

lant later testified that the witness had

written him offering to testify for the de-

fense and that he gave the witness’ name to

trial counsel. As late as 12:30 P.M. the day

in question, the witness is alleged to have

told counsel that he would testify favorably

to the defense. However, the witness actu-

ally gave testimony damaging to appellant.

(12,13) In hindsight, appellant’s sugges-

tion on appeal appears flawless. However,

hindsight is not the proper measure of the

adequacy of legal representation. See

Walker v. State, 550 P.2d 1339 (Okl.Cr.

1976). Allowing counsel a necessary meas-

ure of discretion in judging the urgency for

rebutting the prosecution’s witness and giv-

en the witness’ apparent recent affirmation

of the tenor of his intended testimony,

Q. At any time during this trial, have we

rehearsed what you're going to say?

A. Absolutely not.

Q. As a matter of fact, at any period of

time, did we dwell upon your testimony at

great lengths?

A. No, not at all.

Q. You're testifying solely from your memo-

BY MR. BREWER:

Q. All right’ Now, Roger, when it was

brought up that had you discussed your testi-

mony as you testified before with defense

counsel, what are you saying?

That you and I've never even talked about

this case? Or I did not plan it for you?

A. I did not plan for you.

Q. We have discussed it though, have we

not?

A. Oh, yeah, to a degree, yeah.

STAFFORD v. STATE

Ox. 1213

Cite as 665 P24 1205 (Oki.Cr. 1963)

counsel's action was, at most an error of

judgment within the meaning of Phillips v.

State, supra.

Appellant finally argues that counsel

erred in failing to timely designate the voir

dire proceedings for inclusion in the record

on appeal. The original designation of rec-

ord expressly excluded the voir dire pro-

ceeaiugs. A later amended designation in-

cluded voir dire, but there is no indication

that it was ever served upon the court

reporter. It now appears that the report-

er’s notes of voir dire are unavailable.

{14] Whether or not voir dire and simi-

lar proceedings should be recorded is a mat-

ter of triai tactics, and a decision not to

have such proceedings recorded is not inef-

fective assistance absent supplementation

of the record by affidavit or pleading,

showing alleged prejudicial occurrences.

See Webb v. State, 612 P.2d 285 (Okl.Cr.

1980), applying Baker v. State, 593 P.2d 100

(Qkl1.Cr.1978). See also Johnson v. State,

supra. We find that the same rule should

govern counsel’s decision whether to desig-

nate for transcription voir dire and other

proceedings.

(15] In the case at bar, there is no basis

tor finding that counsel should have desig-

nated the voir dire proceedings. We note

appellant’s suggestion that jurors might

have been excluded for cause at voir dire in

violation of Witherspoon v. Illinois, 391 U.S.

510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

This suggestion is refuted by defense argu-

ment at tmal that the judge improperly

applied the majority opinion in Witherspoon

at voir dire, rather than the specially con-

curring opinion in that case. [Tr. 10-14;

O.R. 234-236.] It was alleged at trial that

eight jurors were excused for cause under

the majority opinion in Witherspoon, and

the trial judge in Stafford’s trial remarked

that he “was amazed at the very low, small

number who went off for that reason.”

(Tr. 14.)

{16} In conclusion, trial counsel filed nu-

merous pre-trial motions on appellant's be-

half, interposed frequent objections during

the prosecution's case, and vigorously cross-

examined the State’s witnesses. He placed

appellant on the stand in an effort to estab-

lish an alibi defense. Though not offering

evidence in the sentencing hearing, counsel

argued mitigating circumstances to the jury

and made an impassioned plea for appel-

lant’s life. The case against appellant was

very formidable. We are unable to find on

the record before this Court that appellant

has sustained his burden of proving ineffec-

tive assistance of counsel.

(17,18] Stafford argues that the trial

court erred in allowing the introduction of

several color photographs in evidence. The

six photographs in question depict five of

the Sirloin Stockade employees shot to

death in the freezer. The admissibility of

photographs lies within the sound discretion

of the trial judge. Irvin v. State, 617 P.2d

588 (OkI.Cr.1980). At bar, the trial judge

found that the probative value of the photo-

graphs outweighed their prejudicial effect.

We do not find fault with this ruling. The

photographs were probative to illustrate tne

medical examiner’s testimony. They also

enabled the jury to view the manner in

which the victims were killed and, thereby,

corroborated the testimony of Verna Staf-

ford. See Chaney v. State, 612 P.2d 269,

275 (Okl.Cr.1980).

(19] Stafford advances that the trial

court erred by allowing Verna Stafford to

testify. He contends that Verna Stafford’s

testimony violated the husband and wife

privilege under 12 0.S.1981, § 2504. Sec-

tion 2504 provides in part:

A. A communication is confidential for

purposes of this section if it is made

privately by any person to his spouse and

is not intended for disclosure to any other

person.

B. An accused in a criminal proceeding

has a privilege to prevent his spouse from

testifying as to any confidential commu-

nication between the accused and the

spouse.

1214 Oki.

Verna Stafford testified in regard to the

facts and circumstances surrounding the

Sirloin Stockade murders. She stated that

her husband, Roger Stafford, planned the

robbery and subsequently caused the death

of several of the employees. Our initial

inquiry is whether Verna Stafford's testi-

mony breached any confidential communi-

cations between her and Roger Stafford.

In Lavicky v. State, 632 P.2d 1234, 1236

(Ok1.Cr.1981), we stated that “[(cJonfidential

communications between husband and wife

are those made when they’re alone, or are

those expressly made confidential, or are of

a confidential nature induced by the marital

relationship, the disclosure of which are cal-

culated to disturb the marital relationship.”

In this case, the trial judge specifically lim-

ited Verna Stafford’s testimony to her per-

sonal observations and conversations with

her husband which were made in the pres-

ence of third persons. Clearly, the conver-

sations between Verna .sd Roger Stafford

in the presence of a third party were not of

a confidential nature as is required under

12 0.S.1981, § 2504(A).

The evidence at trial sufficiently estab-

lished that Harold Stafford was present

during most of the conversations between

Verna and Roger Stafford. The trial judge

specifically excluded all statements made

privately between Verna and Roger Staf-

ford, therefore, we conclude that Verna’s

testimony did not violate the husband-wife

privilege, as protected under Section

2504(B).

In a related argument, Stafford contends

that the trial court erred in admitting the

testimony of Linda Lewis. Ms. Lewis over-

heard a conversation between Roger and

Verna Stafford. Stafford argues that the

conversation was intended to be confiden-

tial and therefore protected under Section

2504, the husband-wife privilege.

Ms. Lewis testified that she overheard a

conversation between Roger and Verna iu

the parking lot outside her Tulsa motel

window after the homicides. She related to

the jury the following events:

Ms. Lewis: I was in my room, sir. I

heard the commotion. I went to my win-

665 PACIFIC REPORTER, 2d SERIES

dow. I looked out, and I seen who it was.

And, you know, I seen him hit her, and I

opened my door—

Q. All right, excuse me. Just tell us,

please, what you heard and saw? In the

first place, are you—who was it that you

saw?

A. I saw Roger and Verna.

Q. All right. Tell us what you first

saw, please?

A. I saw Roger slap Verna, and she said,

“I'm calling the police.” And Roger said,

“Go ahead. You would be in as much

trouble as I would”.

And she said, “I didn’t kill them Roger.

You did.” Roger said, “You were there,

and you were with us”.

And I heard something else, and then

Verna said, “No”.

[20,21] The appellant, citing Seigler v.

State, 54 OkI.C> 141, 15 P.2d 1048 (1932),

argues that where a conversation between

husband and wife is intended to be confi-

dential and the parties are unaware of an

eavesdropper, the conversation maintains

its cloak of privilege. A plain reading of

Seigler makes obvious the inaccuracy of the

appellant’s statement. In Seigler, this

Court stated that “[t]he rule is that third

parties may testify to communications had

between husband and wife, overheard by

such third persons.” 54 Okl.Cr. at 143, 15

P.2d at 1048. We hold that irrespective of

whether communications between husband

and wife are in‘ended to be confidential,

third persons may testify as to conversa-

tions overheard, whether accidentally or by

design. See Hilderbrandt v. State, 22

Okl.Cr. 58, 209 P. 785 (1922). Accordingly,

we find that Ms. Lewis’ testimony was

properly admitted into evidence.

[22] Appellant contends that the trial

court erred in denying an application for

change of venue. Resolution of this issue

depends upon whether appellant established

that the inhabitants of the county had such

fixed opinions as to his guilt that he could

not receive a fair trial by an impartial jury.

STAFFORD v. STATE

Okl. 1215

Cite as 665 P24 1205 (OKLCr. 1983)

Mooney v. State, 273 P.2d 768 (OkI.Cr.1954).