# Opposition — COLEMAN v. OKLAHOMA (No. 83-5776) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1700%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1983 ## Text Case No. 83-5776 ” Office Supreme ‘os | PILED BEC 19 965 ALEXANOEM LU STEVAS CLree IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 CHARLES TROY COLEMAN, Petitioner, vs. THE STATE OF CKLAHOMA Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEAL# OF THE STATE OF OKLAHOMA RESPONDENT'S BRIEF IN OPPOSITION MICHAEL C. TURPEN ATTORNEY GENERAL OF OKLAHOMA DAVID W. LEE ASSISTANT ATTORNEY GENERAL CHIEF, CRIMINAL/FEDERAL DIVISION COUNSEL OF RECORD HUGH A. MANNING ASSISTANT ATTORNEY GENERAL 112 State Capitol Building Oklahoma City, OK 73105 (405) 521-3921 ATTORNEYS FOR RESPONDENT QUESTIONS PRESENTED 1 Whether the Petitioner's Fourteenth Amendment rights were . violated by the search of the Petitioner's vehicle when, during the course of an inventory search, law enforcement officers became aware that items in the vehicle were evicence of a murder committed approximately two hours earlier and therefore, ceased their inven~ tory search of the vehicle, impounded it and then seized the con- tents of the vehicle at the police station. 2. Whether the bill of particulars which was served upon the Petitioner prior to trial was violative of the Petitioner's rights under the Due Process Clause of the Fourteenth Amencment. ———————————————————— TABLE OF CONTENTS Questions Pres¢ te ° ° 3 Table of Authorities ° iii Opinion Beiow 1 Jurisdictior 1 Cc stitut : ir tatutory Provisions Inv € 2 Statement f tne ase 4 Reasons Wt the Writ Should be Denied 8 Proposition 4 WHERE THE PET FORCEMENT OFF IN THEIR PRES COMMENCED AN AND CEASED TH THAT ITEMS INS 7 DURING THE COUR IONER WAS ARRESTED BY LAW EN- ERS POR MISDEMEANORS COMMITTED CE, IMPOUNDED HIS VEHICLE, cae i) et EARCH WHEN "HEY DISCOVERED £ THE VEHICLE HAD BEEN TAKEN £ OF A ROBBERY-MURDER COMMIT- ° TED A FEW H ARLIER, NO FOURTH AMENDMENT VIOLATIONS OCCURFED. 9 Proposition Il F PARTICULARS GAVE THE PETITIONER T NOTICE OF THE EVIDENCE WHICH WAS ESENTED AGAINST HIM, PARTICULARLY IN THE FACT THAT THE SAME EVIDENCE HAD ij PRESENTED IN A PREVIOUS HEARING IN A FERENT PROCEEDING AND THE PLAINTIFF'S AT- NEY IN THE PRESENT CASE HAD BEEN GIVEN A Y OF THE TRANSCRIP? OF THAT EVIDENCE. .- - 10 Rune, , oe Onowc nH On, MT in a") «6 (ee 2 8 e Fae aS Pe oy so) 12 -ii- TAPLE OF AUTHORITIES Cases Cited Page Dombrowski, 412 423 . i" (1979). © = ‘ : Illin Ss \ Lafayette, S » oa : —_ . scaaTtt” U.S b 4829 (U.S June 20, 1983). 9 ‘ ipar , -s “ c Mi higar ¥ LonGc, { 2D ’ - . —— _—_—_”s : — a oa Be : U.S.L.W. 5231 (U.S. July ©, 1983) 9 Michican Thomas, 45&@ U.S. 259 7 * (1982). —S a . « . a 8 @ e « ° ° ° . ° ° > &. 6 10 South Dak +a y nman, 428 U 344 Texas Vv Brown, 0 .é » Ba -* . -— ma em ™ . 0.8.L.6 4361 (U.S. April 19, 495) 9 Texas v. White, 423 67 (1975) ° 10 United States Ross, 456 U.S 798 (1982) . ° ° ‘ 10 21 C.S.Supp.1976, § 701.9 - -++*e*e** 2° . * « 2 4 o * 21 0.S.Supp.1976, § a. oes 6 bie Boe te. © 2 aw mem. 1976, § 7OLedde ss ec ee ee eee 3 rm OG 8096, § FOLeRae © oe ee ee ee ef 3 21 0.S.Supp.1976, § - 4) ey | a ee oo 10 a Beem. 8976, § WA.8de oc es eee eee eee 3,4 22 0.S.1981, § 196. Cc Constitutional Provisions u.S. Const., Fourth Amendment ..-+++*+*+**e*#e#e * 2 U.S. Const., Fourteenth Amendment ..-++-+-+s# * * 2 Other Authorities Cited 28 0.8.C. 5 1257(3) . . . . . . . . . . . . . . . . 1 -iii- Case No. 83-5776 THE SUPREME COURT OF THE UNITED STATES October Term, 1982 CHARLES TROY COLEMAN, Petitioner, vs. STATE OF OKLAHOMA Respondent. orari to the Court tate of Oklahoma RESPONDENT'S BRICF IN C?PCSITION Oklahoma, by and through Michael C. Turpen, Attorney sf the State of Oklahoma, respectfully requests that this Court deny the Petition for Writ of Certiorari seeking review of the opinion of the Oklahoma Court of Criminal Appeals. OPINION BELOW The Opinion of the Oklahoma Court of Criminal Appeals is re~ ported at 668 P.2d 1126 (Ok1.Cr. 1983). JURISDICTION The Opinion of the Oklahora Court entered on July 11, 1983 and corrected Petition for Rehearing was also denied of Criminal Appeals was on September 19, 1983. A on September 19, 1983. This Court's jurisdiction is invoked under 28 U.S.C. § 1257(3)- Te CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment to the United States Constitution pro- vides as follows: "The right of the people tc be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly des- cribine the place to be searched, and the persons or things to be seized.” The Fourteenth Amendrent to the United States Constitution "All persons bore of naturalized in the a United States, and subject to the jurisdic- tion thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal rrotection of the law. Titie 21 0.S.Supp.1976, § 701.7 provided in part: A. A yerson commits murder in the first egree when he unlawfully and with malice &- rethought causes the death of another uman being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by x , ternal circumstances capable of proof.”® Title 21 0.S.Supp.1976, § 701.9 provided in part: "A. A person who is convicted of or pleads guilty or nolo contendere to murder in the first decree shall te punished by death or by imprisonment for life.* Title 21 0.S.Supp.1975, § 701.10 provided as follows: "Upon conviction or adjudication of guilt of a defendant of murder in the first degree, the court shall conduct 4 separate sentencing proceeding to determine whether the defendant should be sentenced to death or life impri- sonment. The proceeding shall be conducted by the trial judge before the trial jury 4s soon as practicable without presentence in- vestigation. If the trial jury has been waived by the defendant and the state, or if the defendant pleaded guilty or nolo conten- dere, the sentencing proceeding shall be con- ducted before the court. In the sentencing proceeding, evidence may be presented as to any mitigating circumstances or as to any of the aggravating circymstances enumerated in this act. Only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible. How- ever, this section shall not be construed to —————<-_ tC ————————— 4 authorize the introduction of any evidence secured in violation of the Constitutions of the United States or of the State of Oklaho- ma. The state and the defendant or his coun- sei shall be permitted tc present argument for f agairst sentence of death.* Title 21 6.S.Supp.1976, § 701.11 provided as fol lows: In the sentencing proceeding, the statutory instructions as determined by the trial jucge t be warranted by the evidence shall be given in the charge and in writing to the jury for its deliberation. The jury if its verdict be a unanimous recommendation of death, shall desiqnate in writing, signed by the foreran cl the jury, the statutory aggra- vating circumstance or circumstances which it unanimously found beyond a reasonable doubt. In non-jury cases the judge shall make such designation. Unless at least one of the statutory aggravating circumstances enumerated in this act is so found or if it is found that any such aggravating circum stance is outweighed by the finding of one or more mitigating circumstances, the death penalty shall] not ke imposed. If the jury cannot, within a reasonable time, agree 4s tc punishment, the judge shall dismiss the jury and impose a sentence of imprisonment Title 21 ©.S.Supp.1976, § 701.12 provides as follows: "Aggravating circumstances shall be : 1. The defendant was previously convicted of a felony involving the use or threat of vio- lence to the person; 2. The defendant knowingly created a great risk of death to more than one person; 3. The person committed the murder for re- muneration or the promise of remuneration or employed another to commit the murcer for remuneration or the promise of remuneration; 4. The murder was especially heinous, atro- cious, or cruel; 5. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; 6. The murder was committed by a person while serving a sentence of imprisonment on conviction of a felony; or 7. The existence of a probability that the defendant would cconmit criminal acts of vio- lence that would constitute a continuing threat to society.” Title 21 0.S.Supp.1976, § 701.13 provided as follows: "A. Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Oklahoma Court of Crimi- nal Appeals. The clerk of the trial court, a i withas ter (10) jays fter receiving the transcript, shal: transmit the entire recore at transcript to the Oklahoma Court of Cris- inal Appeals together with a notice preparec by a clerk anc a report prepared by the trial ice. The notice shall set forth the titie anc : ket a ber f the case, the nare of tine jefendant end the name and address f attorney, 4 narrative statement of the svent, the ffense, and the punishment prescribec. The report shall be in the form f a standarc yvestionnaire prepared and supplied by the klahoma Court of Criminal - eais B. The klahoma Court of Criminal preals shall consider the punishment 4s well as any errors enumerated by way of appeal. Ge With recard t the sentence, the court 1. Whether the sentence of death was imposed influence of passion, prejudice, or any other arbitrary factor; 2. Whether the evidence supports the jury's or judge's finding of a statutory aggravating umstance as enumerated in this act; and QO. Be whether the sentence of ceath is exces- sive or disproportionate to the penalty im- posed in similar cases, considering both the "rime anc the defendant. oth the defendant and the state shall have the right to submit briefs within the provided by the court, and to present ral avgumert to the court. Ee The court shall include in its decision a reference to those similar cases which it > consideration. In addition to its y regarcing correction of errors, urt, with regard to review of death sentences, shall be authorized to: 1. Affirm the sentence of death; or ae Set the sentence aside and remand the case for modification of the sentence to im- prisonment for life. F. The sentence review shall vce in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consid- eration. The covrt shall render its decision on legal errors enumerated, the factual sub- stantiation of the verdict, and the validity of the sentence.” STATEMENT OF THE CASE On the afternoon of February 9, 1979 at approximately 4:30 p.m., Mr. and Mrs John Seward were found dead in the basement of the home of Mr. and Mrs. B.L. Warren, in Muskogee County, Oklahoma. TN Mr. Seward was Mrs. Warren's brother (Tr. 651-654). Mrs. Seward had been shot four (4) times; and Mr. Seward was shot orce in the back of the bead. All of the gunshot wounds were inflicted by a shotgun (Tr. 613-617,620). Numerous iters of personal property were missing from the Warren residence, including the Seward's wallets, packages of frozen meat marked “Hogle, Not for Sale® a turquoise watch belonging to Mrs. Warren, and other items of food (Tr. 675,738-743). Shortly after 6:00 p.m. that day, Ralph Rose, an off-duty dispatcher for the Wagoner County Jail (Tr. 433), was traveling along a highway outside of Muskogee, Oklahoma when the Petitioner passed him in a no passing zone (Tr. 424). Deputy Rose, attempt- ing to communicate the danger, pointed his finger at the Petitioner. The Petitioner stopped his vehicle and approached Officer Rose, who had gotten out of his car (Tr. 435). The Petiti-cer cursed Deputy Rose and left, the scene (P.H. Tr. 339-341). Eventually, the Petitioner was stopped by Deputy Rose for traffic violations, after he observed Jeanetta Coleman, a passenger in Petitioner's vehicle, drink from a beer can (P.H. Tr. 346,356-357). He then placed Petitioner under arrest (Tr. 442-443). Deputy Rose, during the 100 m.p.h. chase which preceded the second stop (Tr. 440,443; P.H. Tr. 342), radioed Oklahoma Highway Patrol Trooper Glen Smithson and Wagoner County Seriff Tommy Gil- bert for assistance (P.H. Tr. 341). They arrived on the scene as Deputy Rose was attempting to arrest the Petitioner (P.H. Tr. 346). After the Petitioner was arrested and handcuffed, Trooper Smithson began procedures to inventory the vehicle pursuant to routine pro- cedures. He instructed Deputy Rose to fill out an inventory sheet (Tr. 472-473). He then looked into the front of the Petitioner's pickup and observed, laying in an open glove compartment, a4 wallet bearing identification of Mrs. Seward. The wallet was open. Trooper Smithson told Deputy Rose to be certain to record the wallet on the inventory list (Tr. 473). The Petitioner was asked his own name and that of his in~laws (Tr. 474). The same inquiries were posed to Jeanetta Coleman (Tr. 474). Neither mentioned the name "Seward" (Tr. 474). At about itd this tire, Deputy Rose discovered packages of meat in the rear of the vehicle marked “Hogle, Not for Sale” (Tr. 474). After some conversation concerning where the Petitioner had obtained the meat, the Petitioner was placed in the rear of the police car, 4s was Jeanetta, and Trooper Smithson and Sheriff Tommy Cilbert trans- porting the Colemans to Wagoner to “run a breath test on Mr. Cole- man® (P.H. 360,385). Although at this point in time Trooper Smithson was aware that a homicide had occurred on that day, he did not realize that the defendant was in any way connected with the homicide. However, "four or five miles up the highway,” he radioed to the scene cf the horicide, asking if any meat had been stolen from the residence (P.H. 385). The officer responded "affirmative" and further re- vealed that the names of the victims were "Seward" (Tr. 482). At this point, Smithson stopped the car, handcuffed Jeanetta Coleman as well, and advised the two of their Miranda rights (Tr. 482). The Petitioner and Jeanetta were then taken to the Muskogee County Jail (Tr. 483). At the time of booking, the Petitioner had in his possession a one nundred dollar bill, five twenty dollar bills, one five dollar bill, three one dollar bills, and one two dollar bill (Tr. 501). One of the murder victims, Mr. Seward had for years carried a two dollar bill on his person for good luck (Tr. 750). The Pe~ titioner’s pants were also seized at the time of his arrest (Tr. 510), and a blood test on the jeans revealed that there was human blood on them (Tr. 744). The Petitioner, at 3:30 p.m. that day, had picked up 4 shot- gun and shells from his bedroom and left in a white Ford pickup with a white camper (Tr. 311,313,316). Two teachers, Steve Kearney and Lina Hale, from a nearby school, passed by the Warren residence and around 3:30 p.m. Mr. Kearney was looking for a white pickup with ae camper to mark Ms. Hale's home because that is the type of vehicle she had been driving. He began to turn into the Warren residence, thinking that it was Ms. Hale's residence, because 4 white pickup with a camper was parked in front, but she told him it was not the right house, that the pickup was not hers. She i Retest im commented that she had never seen that pickup there before (Tr. 687-688). The autopsy of John Seward produced a shot cup and shotgun pellets which were removed from his brain (Tr. 618-619). Plastic wadding was removed from the chest of Roxie Seward (Tr. 621). Ballistics tests showed that these items were components of .28 guage Feceral Brand shotgun ammunition (Tr. 589), and that the pellets were No. 6 size shot (Tr. 591). A shotgun and some ammu-~ nition were taken from the Petitioner's bedroom by his brother after the homicides anc were given to Gary Sturm of the Musxogee County District Attorney's Office (Tr. 411-412). The shotgun was .28 guage, (Tr. 603), and the ammunition was Federal Brand - 28 guage shotgun shells with No. 6 shot (Tr. 634-B). The State also produced the testimony of Eli Maghee who was incarcerated with the Petitioner prior to trial. He stated that while he was imprisoned with the Petitioner, the Petitioner stated, "These people shouldn't have run in on him, or shouldn't have come up or come in while he was .. . there, because .. . he had no choice but to kill ‘em, and that having no choice meant that he wouldn't get any more time if he killed them... that you just don't leave witnesses cause you got a lot less chance of getting convicted. . . ." (Tr. 565-566). Also introduced into evidence were items found during the course of the inventory of the Petitioner's truck, which were subsequently identified by Mrs. Warren as taken from her home during the Murder-Robbery (P.H. Tr. 534-537; Tr. 537-539). Lon Hogle testified that he had given meat to the Warrens, identified the meat taken from the Petitioner truck as that which he had given to the Warrens, and further stated that he gave no meat to anyone else (Tr. 822-723). In addition, the State introduced a watch, discovered in the police car in which Jeanetta Coleman and the Petitioner had been riding on the evening of their arrest (Tr. 634-C}. The watch was identified by Mrs. warren as the one stclen dering the murder of the Sewards (Tr. 737). Jeanetta Coleman testified that, while seated with the Petitioner in the police car, the Petitioner had requested her to remove a watch from the -7J- Petitioner's pocket (Tr. 333). After Jeanetta complied with his request, the Petitioner asked for the watch back (Tr. 334), which request she attempted to honor, apparently unsuccessfully. The Petitioner did not testify in his defense. Ted Faulkner, an inmate in the Tulsa County Jail, testified that Eli Maghee had a poor reputation for truth and veracity (Tr. 763). Jcyce Murray, the Petitioner's sister, testified that she had earlier in the week given the Petitioner four hundred dollars ($400.00) (ivr. 767). The jury convicted the Petitioner of Murder in the First De- gree, in violation of 21 0.S.Supp.1976, § 701.7(A) and found five (5) aggravating circumstances: (1) the Petitioner was previously convicted of a felony involving the use or threat of violence to the person; (2) the Petitioner knowingly created a great risk of death to more than one person; (3) the murder was especially hei- nous, atrocious and cruel; (4) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (5) there exists a probability that the Petitioner would com- mit criminal acts of violence that would constitute a continuing threat to society (O.R. 195). The jury imposed the death sentence. REASONS WHY THE WRIT SHOULD BE DENIED PROPOSITION I WHERE THE PETITIONDR WAS ARRESTED BY LAW EN- FORCEMENT OFFICERS POR MISDEMEANORS COMMITTED IN THEIR PRESENCE, IMPCUNDED HIS VEHICLE, COMMENCED AN INVENTCRY SEARCH OF THE VEHICLE AND CEASED THE SEARCH WHEN THEY DISCOVERED THAT ITEMS INSIDE THE VEHICLE HAD BEEN TAKEN DURING THE COURSE OF A ROBBERY-MURDER CCMMIT- TED A FEW HOURS EARLIER, NO FOURTH AMENDMENT VIOLATIONS OCCURRED. The events which lead to the search of the Petitioner's vehi- cle are set forth in detail in the Opinion of the Court of Criminal Appeals and in the Statement of the Case above. See, Coleman v. State, 668 P.2d 1126, 1130-1131 (Okl.Cr. 1983). In summary, the facts revealed that the Petitioner was arrested for a misdemeanor committed in Officer Rose's presence. The vehicle which the 1 this is authorized by Oklahoma law, 22 0.S.1981, § 196. Petitioner was driving was impounded and the inventory was com- menced by Deputy Rose upon being instructed to do such by Trooper Smithson. ? Trooper Smithson, while assisting in the Plaintiff's arrest, observed ir plain view, open wallets in the truck’s glove compartment bearing the names “Seward,” and a box of frozem meat Stumped “Hogle, Not for Sale,” in the truck's camper. The inven- tory was stopped when Trooper Smithson radioed the scene of the Seward's murder and discovered the victim's names were Seward and that meat marked “Hogle, Not for Sale” had been taken from the house where the murder had occurred. After Deputy Rose stopped the inventory at the request of Trooper Smithson and Sheriff Cilbert, Agent Chrisco of the Oklahoma State Bureau of Investigation arrived at the scene and the vehicle was removed to the Muskogee Police Deprtment where the vehicle was searched and a complete inventory was made of the contents (Tr. 537-536). The State contends that the search was in full compliance with Fourth Amendrent dictates. The original stopping of the vehicle was proper. Delaware v. Prouse, 440 U.S. 648 (1979). As stated previously, the plaintiff was then arrested under Oklahoma law for misdemeanors committed in the presence of Deputy Rose. 22 0.S.1981, § 196. See, Coleman v. State, supra, 668 P.2d at 1130. Trooper Smithson's observations of the interior of the vehicle were legal. Colorado v. Bannister, 449 U.S. 1 (1980); Michigan v. Long, ¥.8. , 51 U.S.L.W. 5231 (U.S. July 6, 1983); and Texas v. 3rown, U.S. , 51 U.S.L.W. 4361 (U.S. April 19, 1983). Deputy Rose's inventory of the vehicle was also in accordance with Fourth Amendment principles. See, Illinois v- Lafayette, U.S. , 51 U.S.L.W. 4829 (U.S. June 20, 1983); South Dakota v. Oppenman, 428 U.S. 364 (1976); and Cady v. Dombrowski, 413 U.S. 433 (1973). Thereafter, when Trooper Smithson discovered that the 2 the vehicle was impounded pursuant to established depart- mental policy (P.H. Tr. 348,380). 3 - os = 9 - utes . ee er 0 vehicle contained fruits of the crime of Murder-Robbery, a warrant- less search of the vehicle for items related to the crime was allow- able. United States v. Ross, 456 u.S. 798 (1982). Furthermore, this search was legal whether at the scene or at the station regard- less of whether the officers had the opportunity to obtain a search warrant. See, Texas v. White, 423 U.S. 67 (1975); and Michigan Vv. Thomas, 458 U.S. 259, 261 (1982), where it was stated: "It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's as- sessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been > tampered with, during the period required for . the police to obtain a warrant. Therefore, the search of the plaintiff's vehicle and the seizure of the items inside was properly held by the Court of Criminal Appeals to be valic. PROPOSITION I! THE BILL OF PARTICULARS GAVE THE PETITIONER SUFFICIENT NOTICE OF THE EVIDENCE WHICH WAS TO BE PRESENTED ACAINST HIM, PARTICULARLY IN VIEW OF THE FACT THAT THE SAME EVIDENCE HAD BEEN PRESENTED IN A PREVIOUS HEARING IN A DIFFERENT PROCEEDING AND THE PLAINTIFF'S AT- TORNEY IN THE PRESENT CASE HAD BEEN GIVEN A COPY OF THE TRANSCRIPT OF THAT EVIDENCE. The Petitioner complaint of the bill of particulars in the present case, contencing that it insufficiently described the evidence to be presented in support of the aggravating circumstance that there exists a probability that the Petitioner would commit furture acts of violence that will constitute a continuing threat to society. See, 21 O.S.Supp.1976, § 701.12(7). The Petitioner claims that the bill of particulars does not go into sufficient detail in describing evidence that, after his escape from the Muskogee County Jail, the Petitioner kidnapped an Arizona highway patrolman. As noted previously, this aggravating circumstance was only one of five which were found by the jury. Moreover, the evidence of the kidnapping of the Arizona highway patrol trooper was intro- duced partially to prove that the Petitioner had murdered a Tulsa - 10 - man, Mr. Lewis, after he had escaped from jail. The testimony of the Arizona trooper revealed that he identified the Petitioner, his gun and vehicle. This was necessary to connect the Petitioner, his gun and his vehicle with the murder of Mr. Lewis. The mur- der of Mr. Lewis is specifically described in the bill of partic- ulars. See, Appendix *"c® of the Petitioner's Petition. Additionally, in support of this aggravating circumstance, the State introduced evidence of the Petitioner slashing a police- man in Luther, Oklahoma with a knife, who had stopped him after his escape; and the fact that the Petitioner also murdered another man in Tulsa, Oklahoma following his escape. The State also gave the Petitioner notice that the murders of the Sewards, the persons he was convicted of murdering in the first stage of the present case, woulc be used to support this same aggravating circumstance. Therefore, it is apparent that the State produced overwhelming evidence of the Petitioner's potential for future viclence. Finally, the Bill of Particulars itself (See, Appendix °G* € Petitioner's Petition), states that his escape "creatled) a future dancer to other lives, including those of the law abiding citizens of this State, anc in other areas of this nation. .. ." This, coupled with the fact that, as the Court of Criminal Appeals noted (668 P.2d at 1137), the Petitioner had notice of the details of the Arizona kidnapping by virtue of a preliminary hearing in the case involving the above-mentioned murder of the man in Tulsa,° demonstrates that the Petitioner had adequate notice of the evi- dence which would be presented. Therefore, in view of all the circumstances surrounding the finding of that aggravating circumstance by the jury and the over- whelming nature of this evidence (which including three (3) murders, a knife slashing of a police officer and a kidnapping at gunpoint of a highway patrol trooper), no constitutional error occurred. 3 the Court of Criminal Appeals also noted that the Petitioner's attorney had been furnished with a copy of that transcript prior to trial. 668 P.2d at 1137. (See, Tr. 880-881). | -11- | CONC LUS ION For the reasons stated, it is respectfully requested that the Petition for Writ of Certiorari jlenied. Respectfully submitted, MICHAEL C. TYRREN TTORNEY/QEWERAL OF QKLAHOMA Af j/ Jf Ss J f/f \ j / s a, Abia’ CU f ew DAVID W. LEE ASSISTANT ATTORNEY GENERAL CHIEF, CRIMINAL/FEDERAL DIVISION A / j 4A j 4Ae/] pe AE 4 Minders HUCH AY MANNINC ———_ ASSISTANT ATTORNEY GENERADY 112 State Capitol Building Gklahoma City, OK 73105 (405) $21-3921 ATTORNEYS FOR RESPONDENT SERTIFICATE OF MAILINC On this / 2 day of Decerber, 1983, a true anc correct copy of the foregoing was mailed, postage prepaid, to: D.O. hayes Bonds, Matthews, Bonds & Hayes Attorneys at Law Pe Box 1906 Muskocee, OF 74401 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1700%3A2. Public record. Not legal advice.