Petition — Stafford v. Oklahoma

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IN THE SUPREME COURT OF THE UNITED STATES

ROGER DALE STAFFORD, )

)

Petitioner, )

)

Vv. )

)

THE STATE OF OKLAHOMA, )

)

Respondent. )

WRIT OF CERTIORARI TO

83-6125

Case No. A-418

THE OKLAHOMA COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTIORARI

CHARLES B. GRETHEN

ATTORNEY AT LAW

P.O. DRAWER D

PURCELL, OKLAHOMA 73080

(405) 527-5571

COUNSEL FOR PETITIONER

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INDEX

How the federal questions were raised and decided below. .

Opinion Below... . cece reece evreerereeserersees

A gk, ne rer aes er ese ter gs a ne

Constitutional and Statutory Provisions Involved in the case

Statement. of CBSO. icc 45 0 tes bo Oe Oe we See eee

Questions Presented . wc. ccc cect ceseseces

Statament of Pee oc. a. sb 4.5. & 04 aoa

Reasons for granting the Writ.......+-.

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HOW THE FEDERAL QUESTIONS

WERE RAISED AND ADECIDED BELOW

1. Petitioner requested through his appellate counsel, an evidentiar,

hearing to determine the effectiveness of his trial counsel for purposes of appellet:

review. The Oklahoma Court of Criminal Appeals denied this request and stete: |

its opinion affirming petitioner's conviction and sentence that they did not need «

evidentiary hearint to determine effectiveness of counsel's representation, there.

denying petitioner his Sixth Amendment right.

2. Counsel for petitioner objected to the trial testimony given »,

petitioner's wife which was overruled by trial court and approved by Oklahome Cour:

of Criminal Appeals. This invaded petitioner's right to remain silent as guatantec’

by the Fifth and Fourteentn Amendments of the Constitution.

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IN THE SUPREME COURT OF THE UNITED STATES

ROGER DALE STAFFORD,

Petitioner,

-vSs- Case No. A-418

THE STATE OF OKLAHOMA,

eee eee ee

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE OKLAHOMA COURT OF CRIMINAL APPEALS

Petitioner prays that @ Writ of Certiorari issue to review the judg en:

of the Oklahoma Court of Criminal Appeals entered in this case on the 20th day of

June, 1983.

OPINION BELOW

The opinion of the o<lahome Court of Criminal Appeals was puDdlished arc

appears et 669 P2d 285. It is annexed as Appendix A to this petition. The order

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

JURISDICTION

The judgment of the Court of Criminal Appeals was entered on Septemde:

7, 1983. A timely petition for rehearing was denied on October 6, 1983. Tr

Honoradle Byron R. White, Associate Justice of the Supreme Court of the Unite

States, extended time to file this Petition for Writ of Certiorari until Janusty 4.

1984, by order dated Decembder 1, 1983, A-418. Appendix C. Jurisdiction of this Court

is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL STATUTORY

PROVISIONS INVOLVED IN TRIS CASE

This case involves the Fourteenth Amendment to the Constitution of the

United States which provides, in relevant part:

".. . Nor shall ary state derive any person of life, liberty,

or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”

The Sixth Amendment to the United States Constitution provides in relevan:

part:

In all criminal prosecutions, the accused shall enjoy the right

to have speedy and public trial, by impartial jury of the state

and district wherein the crim shall have been committed. . . ;

and to have the assistance of counsel for his defense.

The Fifth Amendment to the Constitution of the United States which

provides, in relevant part:

". . .Nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or

property, without due process of law;...”

This case also involves provisions of the Oklahoma Statutes.

O.S. 21 §701.7 Murder in the first degree.

A. A person commits murder in the first degree when

he unlawfully and with malice aforethought causes the

death of anothe human being. Malice is that deliberate

intention unlawfully to take away the life of a human

being, 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,

regardless of malice, in the commission of forcible

rape, robbery with a dangerous weapon, kidnapping,

excape from lawful custody, first degree burglary or

first degree arson.

O.S. 21 §701.9 Punishment for murder.

A. A person who is convicted of or pleads quilty or

nolo contendere to murder in the first degree shall de

punished by death or by imprisonment for life.

STATEMENT OF THE CASE

The petitioner, Roger Dale Stafford, was convicted of three counts of

murder in the first degree. 21 0.8. 701.7 He was sentenced to death for each mur

ue’.

QUESTIONS PRESENTED

‘, Can an appellate court determine whether Roger Dale Stafford, Sr.

petitioner herein, was denied his Constitutional right to effective assistance of counse),

in an advisary system on @ record replete with eneptness or must it require 4.

evidencary hearing or reverse for a new trial?

2. Was Roger Dale Staffued, Sr.'s right to remain silent, guaranteed t>

him by the Fiftn Amendment, denied when he was forced at trial to testify and refute

oriviledged spousal communications?

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STAFFORD STATEMENT OF FACTS

The Petitioner, Roger Dale Stafford, Sr., was charged by information in

the District Court of McClain County with three counts of murder, involving the

death of Melvin Lorenz, his wife and son, which occurred during a toad side robde.

on the 22nd day of June, 1978, in McClain County, Oklahoma. (Pleading No. 44) Roger

was arrested by police officers in Chicago, some ten months later and returnec to

Oklahoma City for interrogation of not only the homicides in McClain County, bu*

also homicides involving the death of six people at the Sirloin Stockade in Oklation.-

City. (Tr. 998-1014)

His wife, Verna Stafford, was apprehended in Chicago on March 7, 197%,

and interrogated by an Oklahoma City Police Detective and also by agents of the

Oklahoma State Bureau of Investigation. Initially Verna denied any involvenen* 5;

Roger in any of the murders, however, she later implicated Roger, and as @ result,

primarily, of her testimony, he was chargec in Oklahoma County with the six count-

of murder and later convicted.

After the conviction in Oklahoma County, he was tried in McClain County

and convicted of the Lorenz killings. In both eases he was represented by J. Malon

Brewer, an Oklahome City Lawyer, who was appointed to represent him in the McCis

County Cases.

Tne evidence offered by the State of Oklahoma showed that Roger, Vern

an. their children had arrives in Oklahoma shortiy before the 22nd of June, 137

and initially stayed in Oklahoma City but later went on to Tulse. (P.H. Tr. pg 74-

76) Verna testified that on or about the 19th day of June, 1978, they travele? frot

Tulsa, Oklahoma to Purcell, Oklahoma, burglarized a pawn shop and took a revolve

which was later determined to be the murder weapon in the Lorenz family killings.

Verna Stafford, who was the State's chief witness, testified over the«

odjection of her husband at the preliminary hearing and subsequent trial as to he-

and Roger's involvement in the Lorenz family killings. She testified that on the 21s:

day of June, 1978, Roger, Verne and Harold, Roger's brother, left Tulsa in the eveninz

and drove to Oklahome City anc

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subsequently wound up in Pauls Valley, a town approximately 22 miles South of Purce!!,

and cased motels for the purpose of robving them. However, they determines the

there was not sufficient money to warrant a robbery and proceeded North along

Interstate 35. They drove over to the side of the road and after extended discussio”.

decided to stop a vehicle and rob the occupants. The plan was to raise the hood o:

the Stafford car as a disadled vehicle and for Verna to stand next to the highwe.

and flag down @ motorist while Roger and Harold hid on the side of the car awe.

from the highway, and to rob any motorist who stopped for them. Verna testifie

that Roger killed Mr. Lorenz, and his wife and then shot their son who was in the

camper on the back of the Ford pickup. She testified that they dragged the bodies

of Mr. and Mrs. Lorenz into the ditch and after delaying a short while for traffic on

the highway they drove approximately three-quarters of a mile North and disposec 0!

the body of the boy from the back of the camper. (Tr. 366-374)

They planned to leave the pickup at the Sheraton Hotel in Oklahome City,

which is located close to Will Roger's Airport. However, they later decided to teh:

@ drive and wound up at Stillwater, Oklahome, 4 town approximately 80 miles Nort!

and East of Oklahome City. Verna testified that they left Stillwater about déw-

anc returned to Oklahome City, whereupon it was decided that Roger would driv:

back to Tulsa and that she and Harols would hitehhike. (Tr. 375-385)

One of the State's witnesses, Ray Taggett, testified that at approximate),

7:00 a.m. on the morning of the 22nd dey of June, 1978, (Tr. 1088-1092) he sew «

pickup matching the deseription of the Lorenz’ at & Qwik Stop in Stillwater, wit’

two males in it. He further testified that he saw the pickup later at 4 Samo’:

restraunt in Stillwater and saw three people, two of whom he identified as Roge:

and Verna. This was between 8:00 and 8:30 a.m. (Tr. 1098-1099)

He stated that he had 4 friend with the Stillwater Sheriff's Office t-

whom he gave information relating to the pickup that he had observed on the 22n-

day of June, 1978. (Tr. 1102) A few days later he assisted an O.S.B.1. agent in doin

composites. (Tr. 1104) He later picked Roger out of a photo line up after he he

been hypnotized. Other witnesses were called on behalf of the State.

Roger took the witness stand in his own defense to deny any pert in th:

crimes, and testified that Verna had threatened to get him, odserving that "On God

there I am, vindictive woman is going to get me." (Tr. 1254)

Mr. Brewer called alibi witnesses who placed Roger Stafford in Tuls+

either at work or at the emergency housing center where he was residing on Jun:

22, 1978, the day in question, aproximately 150 miles from the seene of the Loren:

family killings.

After the close of the evidence, the court instructed the jury, atgument~

were held and the jury retired only to return one hour and thirty-eight minutes late

with a verdict of guilty. (Tr. 1596-1598) At the second stage of the proceeding-.

which is used to determine the mode of punishment, the state merely incorpovstec

all evidence of the tria! stage and rested. Mr. Brewer also merely incorporated tnx

foregoing trial record, and rested his case without presenting any additions! evidence:

in an effort to mitigate @ possible death sentence. He stated to the court thet ft:

must rest or there was error. The jury then deliberated the punishment anc cet

back with @ verdict of death in one hour and fourteen minuies (Tr. 1621-1622).

J. Malorne Brewer who hac represented Roger Stafford in the Siro:

Stockade Tria! in Oklshone City, representec him in McClain County for the Loren.

case for which he received &€ Coutt Appointment fee. Durinz the pre-tria) stag:

Mir. Brewer filed various motions to suppress, and objected ts the competency c:

Verna Stafford a: & witness, since she was the wife of Roger Stafford. Brewer’:

Motions were overrulec by the trial judge. Mr. Brewer filed @ motion for & chang.

of venue, but failed to follow the method preseribed by the Statutes of the State o°

Oklahoma.

Mr. Brewer then filed @ Motion for New Trial on behalf of Roger a#h.z

was presented, but not argued to the court, and was overruled. At the same tit:

he asked the court to pay him the court appointed fee based upon the time of 14°

hours involved in the case of State of Oklahoma -vs- Roger Dale Stafford, Sr.

Tne Court of Crimine! Appeals affirmed the decision and from this tulir,

Roger Stafford brings this Writ.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER AN EVIDENTIARY HEARING IS REQUIRED AS A

MATTER OF LAW UNDER THE SIXTH AND FOURTEENTH

AMENDMENT TO MAKE A DETERMINATION ON

EFFECTIVENESS OF COUNSEL WHERE SUFFICIENT

ALLEGATIONS DEMONSTRATE INEFFECTIVENESS.

ARGUEMENT

As has previously been set forth, Roger Stafford asserts that he was deniec

effective counsel which violated his Constitutional Rights under the Sixth anc

Fourteenth Amendment of the United States Constitution. His counsel at the triz

wes one J. Malone Brewer, an Oklahoma City Lawyer, who had representec hin at

a trial in Oklahoma City. On the 2nd day of February, 1980, at a hearing befor:

the McClain County District Court, Mr. Brewer asked to be appointed as counse! for

Roger.

After the preliminary hearing before the committing magistrate, Roger wa

bound over for trial in the District Court of McClain County on 4 felony informatic:

alleging three counts of murder. The original preliminary information filec by th.

State of Oklahoma wes amendec with a bill of particulars which set forth fou:

aggravating factors in the bare language of the statutes, totally lacking facts 1%

connect the circumstances of the case to the statutory aggravating factors. Wr.

the information was filec after the preliminary hearing, the bill of particulars we

not also filed. However, at the sentencing stage of the trial, the Court instruct:

on the aggravating factors again in the bare language of the statutes, to whitl 4

odjection was made by trial counsel. Petitioner contends said failure to provide bes

facts constitutes fundamental error. A concurring opinion in Godfrey v. Georgi: 4:

U.S. 438, 100 S.Ct. 1759, 64 L.Ed. 398 (1980), 769 agrees:

"... even under the prevailing view that the death penalty may

+ + + constitutionally be imposed, it is not enough for a reviewing

court to apply @ narrowing construction. The jury must be

instructed on the proper, narrow construction of the statute. ..

. it is the sentencer's discretion that must be channeled anc

guided. ... To give the jury an instruction in the form of

the bare words of the statute; words that are hopeless!

ambiguous and could be understood to apply to any murcer..

- would effectively grant it unbridied discretion to impose the

Gesill penalty. ... it is impossible for it [the reviewing court.

to sey whether e particular jury would have so exercised its

discretion if it had known the law.”

The jury in the present case found the killings to be ". . . especial.

heinous, atrocious, and cruel,” 21 O.S. §701.12 (4), despite the fact that the evidenc:

presented indicated that the victims were shct and expired in a short period of tine.

No evidence was presented to indicate that they were tortured prior to being shot.

Georgia's Statute, Ge. Code §27-2534.1 (b)7 (1978), provides that a murde-

is aggravated if it is “outrageously or wantonly vile, horridle or inhumen in thet it

involved torture, depravity of mind, or an aggravated battery to the victim.” Suc’

aggravation allows 4 jury to impose the death penalty. Godfrey, however, precluce-

the finding of an aggravating factor absent the consciousness of a mind material)

more depraved than any other murderer, or torture. The similarity of the two abdov<

cited statutes would indicate they should both receive the same construction Dy «4

reviewing court. The Oklahome Statute, it should be noted, could be construe:

somewhat more natfrowly than the Georgie Statute, in that Oklahona employs the

conjunctive tern, and, apperently requiring all three factors, whereas Georgie use-

the term, or, requiring only one factor of the group to be present.

The Oklahona Court of Criminal Appeals, however, determined the murder:

in the present case to Revegieen aggravatec by being especially heinous, atrocious.

and cruel Secause they were unprovoked anc committed upon a family renderin;

assistance while on its way to 4a funeral. Stafford v. State, 669 P.2d 285 (On).

Cr.1983) 299. This constitutes an incorrect construction of the terms, heinous,

atrocious, anc cruel, absent the evidence of torture or depraved consciousness requirec

in Godfrey.

Three other aggravating factors were submitted to the Stafford jury an

all four were found to be present in two of the three murders. Without adequst.

guidelines or facts to supplement the aggravating factors, the presence of the heinou-,

atrocious and crue! instruction, listed together with the other three factors, erroneous!

given in bare statutory language, would have impermissidly colored the delideration-

of the jury. The prejudicial effect of the errors, supra, could have been neutralize

by Mr. Brewer, either Dy motion to quash and demurrer.

Tnis > esents another of Roger's contentions—that he was deniec the

assistance of effective counse:. Capadle assistance is very important in @ Case

involving substantial pre-tria’ pudlicity. Such pudlicity is particularly likely to

prejudice a defendant's pos‘iion in @ rural community, when the case receives state

wide attention as happened in the case at bar. McClain County, the situs of the

crime and trial, is approximately 35 miles south of Oklahoma County. The coverac-

of the Lorenz family killings created an unusually strong anxiousness in the MeCls

County community to fix responsibility for the crime upon a likely pound of fles'.

Many residents of McClain County work in Oklahoma City and were particular!s

susceptidle to opinionated speculation in the news media as to who had committec

the crimes. Mr. Brewer attempted to file a motion for change of venue, but it we-

overruled for failure to follow the statutory requirements. The statutes of the State

of Oklahoma, namely 22 O.S. (1981) §561, provides that for a change of venue the

application of the Defendant must be verified by affidavit and supported by affidevit-

of at least three credidle persons who reside in the county. It is inconceivadle,

when judging from the minimum level of competence required of an attorney in a«

capital case, that trial counsel not only failed to properly move for a chanze o¢

venue, but that he also did not subnit any affidavits from residents of MeClain County.

Further ineptness on the part of trial counsel is indicated by his failure

to request any instructions of the trial court. (Trial Transeript Page 1539) Tre

instructions, (Trial Transcripts 1541-1558) reveal there were none given dealing wit

pre-trial publicity. However, Roger would point out to the Court that there were

questions on voir dire dealing with pre-tris] publicity. He does not concede that th:

voir dire was sufficient on this issue nor was @ voir dire in conformance wit

Witherspoon -vs- Illinois 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed.2¢ 776 (1962)

This case involved three count first cegree murder information and ye:

counse) failed to provide any requested instructions. Vir. Brewer also did not prese”"

any verdict forms to the trial judge, and during the sentencing phase the tria! juc-:

was allowed to instruct on the following mitigating circumstances:

"The following ere the minimum mitigating circumstances as

provided by law:

‘Number one: The Defendant has no significant history

of prior criminal activities; ...

‘Seven: At the time of the murder, the capacity of the

Defendant to appreciate the criminality wrongfulness of his

conduct or to conform his ecounduct to the requirements of

law was impaired as a result of mental disease or intoxication;

Tne age of the Defendant at the time of the crime.' "

(Tr. 1606-1607)

No objection to the mitigating circumstances instruction was made despite the fac:

that Eddings v. Oklahoma 455 U.S. 104,102 S.Ct. 869, 872, 71 L.Ed.2d 1 (1982) states,

"the Statute [21 O.S. § 701.12) nowhere defines what is meant by ‘any mitigating

circumstances.’ "(Emphasis added)

The Jury went out to deliberate Roger's fate at 11:44 a.m. and returne-

with its verdict of guilty at 1:22 p.m., a period of only one hour and thirty-eig":

minutes. The trial judge then began the second stage or punishment stage of the

trial during which Mr. Brewer was totally disoriented and ineffective. He, the Judge,

and the Prosecutor made the following comments, at page 1612 of the Trial Transcrip::

"Mr. Brewer: if the Court please, Your Honor, may we approach

the bench?

The Court: Yes, sir.

(The following proceedings were had at the bench out of tie

hearing of the jury and the Defendant:)

Mr. Brewer: The State's restec. 1 Detter rest, or we've got

error.

The Court: Do what?

Mr. Brewer: I've got to rest. I have got to do mine before

we have closing arguments, or we have blown it.

Mrs. Huff: If he wants to present evidence—

Mr. Brewer: I have at least got to rest. She's going into

closing arguments at this point.

Tne Court: All right. Now, you ate not going to present any

evidence?

Mrs. Huff: No.

Mr. Brewer: She's restec.

Mrs. Huff: Just arguments.

The Court: Have you rested?

(The following proceedings were had in open Court within the

hearing of the jury and the Defendant:)

Mr. Brewer: Comes now the defendant and moves the court

to incorporate within the aspects of phase two all of tne

evidence and exhibits presented in phase one. Move it become

incorporated and a part of this proceeding as well, at which

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peer. onaaes The Court: As to evidence?

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Mr. Brewer: Yes, sir.

Mrs. Huff: If it please the Court?

The Court: You may proceed.”

Roger submits that trial counsel failed to adequately represent him durine

the trial, particularly during sentencing. The counsel's perforniance certainly fe)

short of the zealous representation required by D.R. 7-101 of tne Oklahoms Lawyer's

Code of Professional Responsindility, and therefore he was prejudiced by the acts o!

Mr. Brewer.

The Oklahoma Statutes, 22 O.S. (1981) §745, provide that burden proc‘ 0°

mitigation in the punishment in @ murder case is upon the defendant. While not

conceding that this statute is constitutional, the petitioner would point out thet ir

the above trial exerpt the only evidence that was presented by Roger's Trial Couns

was the evidence incorporated from the first stage of the proceeding--the sat:

evidence which resulted in Roger's conviction. Thus it could hardly be contlude-

that Mr. Brewer was making a sugnificant eftort to meet his statutory burden of

proving mitigating circumstances—anc even less likely that he was making @ ze2lou-

effort to do so.

Imporatant questions are raised in the transcript of the hearing held o

Maren 17, 1980, wherein the question of compensation for Mr. Brewe> was presente

to the trial judge. Stafford v. State 669 P2¢c 285 (Okl.Cr. 1983) 306 It had cons

the court’s attention that rumors hac surfaced that Mr. Brewer had 4 propriet-".

interest in the pudlication rights to the trial. A reading of this does not show a.

denial on Wr. Brewer's part that he hac acquired some type of publication riz’:

etc... to the incidents involved in the Lorenz family ease or of the Sirloin Stoc<«c:

Case. The Sixth Amendment requires an Attorney to devote his time and attentio:

solely to the interests of his client. Glasser v. United States 315 U.S. 60, 62 S. Ct.

457, 86 Arrow. Ed. 680 (1942). "Any conflicts of interest are to be avoided.”

Roger Stafford would point out to this Court that contracts involv..c

pudlication rights to a trial, during the trial, are expressly prohipited by D.R. 5-104

(4) <A lawyer shall not enter into e business transaction

with @ client if they have differing interests therein

and if the client expects the lawyer to exercise his

professional judgment therein for the protection of

the client, unless the client has consented after full

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rise to his employment, 4 lawyer shall not enter into

any arrangement or understanding with @ client or 4

prospective client by which he «ucquires an interest

in publication rights with respect to the subject matter

of his employment or proposed employment.

Petitioner seriously questions the amount and quality of trial counse. >

preparation. D.R. 6-101 of the Oklahoma Code provides as follows: "(A) A Lawyer

shall mot... (2). Handle a Lega! matter without preparation adequate in tr

circumstances.” ... In all fairness to trial counsel, one would have to assume tha*

he did do some work and preparation since the alidi witnesses were presentec, Du*

the record reflects that he showed no time whatsoever for preparation. (See "Exhin.t

" Attached) As to the issue of the quality of representation, this Honorable Court,

in Cuyler v. Sullivan 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), on page

.716, stated inat the assistance at trial must be adequste. "The right to counse!

prevents the State from conducting trials in which persons who face incarceration

must defend themselves without adequate legal assistance." The right to adequat:

assistance should especially be preserved in @ capital case.

In @ weil reasoned decision, dealing with @ quilty plea, Justice Bazelor,

Chief Judge of the United States Cireuit Court of Appeals for the District of Columbi«,

writing in the United Ststes vy. D.E. Coster 487 Fed 2d 1197, Ct of A. D.C. (1979) at

page 1202 states as follows: in guilty plea context the court has heic that

the accused's right to effective assistance is the right to ‘reasonable, competent’

representation..." MeMann v. Richardson 397 U.S. 759, 770-771, 90 S Ct. 1441,

25 L.Ed.2nd 763 (1970) apparently adequate legal assistance and effective assistanc:

at counsel are one and the same. But this leaves unanswered the question as to wii:.*

is effective assistance and how this reletive effectiveness is to be determined. Roge°

would submit to this Court that the procedure needed to determine this is a hearing

to be conducted pursuant to requirements of Cuyler v. Sullivan, supra. If a revie~.

of the record before this Honorable Court substantiates his claim of ineffective

counsel, then he believes that the whole matter should be reversed for a new tris’.

Mr. Brewer filed & Motion for New Trial, but a review of the appellee’:

brief only lends creuence to the fact that it was sloppy, unprofessional and boarders

on the area of being a tarce and a mockery.

Finally, according to trial counsel's own pleading filed with the District

Court of McClain County, and his request for court appointed fees, he spent a total

of 142 hours on the case. ("Exmidit D”) Such a short period of time left him confuse

and led to errors such as the one at page 1612 of the trial transeript. Wr. Brewe:

therein stated as follows: "I've got to rest. | nave got to do mine before we ha.

closing arguments, or we have Dlown it.” (Emphasis added) One wonders whethe-

Mr. Brewer was acting as an effective advocate in an adversary proceeding for |

client or whether he was acting for @ disallowec proprietary interest, discussed sup7:

It is interesting to note, and Petitioner is well aware, by the holding .:

Cuyler v. Sullivan, that retained and court appointed counsel are held to the set:

standards for trial conduct. However, in this particular instance, Wr. Brewer. as

court appointec counsel, was paid by the State of Oklahoma, who in fact wa:

prosecuting his client. And the judge of the case was paid by the State of Oklahom:.

Does this in and of itself create problems? One can only wonder to whom Wir. Brewer

was teferring when he used the tern we in the quote, Supra.

Dealing further with the lack of adequate counsel, it is noted at paze (Tr.

1616-1618) of the Transcript, that trial counsel's only evidence offerec at the

sentencing stage was that which was incorporated from the trial stage. The Oklahor-

Statute, namely 22 O.S. (1981) § 745, provides for mitigation of punishnent in «

capita! case. While the trial court instructed on mitigating circumstances (triz

transeript page 1612) counsel for Roger offered no evidence specifically designe< ¢t-

mitigate, whatsoever, and thus failed to meet the requirements of Edding- v. Orleho

102 S.Ct. 869 (1982) which states at page 875:

. +.» Thus, the rule in Lockett followed from the earlier decisions

of Court and from tne Court's insistence that capital punishment

be fairly imposec, and with reasonable consistence or not at

all. By requiring that the sentencer be permitted to focus '

"on the circumstances of the person who committed the crime’ "

- +» that there be taken into account the circumstances of the

offense with the character and propensities of the offender.

How could the rule just stated be followed, when during the sentencin;

phase counsel for the Petitioner offered no additional evidence, whatsoever, to mitigs t+

or to show the character and propensities of the offender. This begs the question &

to how the sentencing jury is to mete out a punishment tailored to the individu’

circumstances as is required in @ capital case. Zant v. Stephens 103 S.Ct. 2733 2744.

77 L.Ed.2d 235 (1983).

The State of Oklahome has specifically provided for a separate sentencing

Stage in @ capital case. Logically it can hardly be found to comport with legislative

CHASES E GaEtmEs,

DOVE E Bir:

AT DANE <s 6° Le

Pah SEAS

S°®EE° DRaate -

PURE. Ow ami:

intent if, in the separate hearing designated for the determination of aggravating ar

mitigating circumstances, both counselor for the state and counselor for the defe-

Summarily incorporate the first phase of trial into the second phase and proceec .

sentencing with the mere addition of three pages of arguments each. Locket! ary

Eddings stress the neea for a tailoring cf punishment to fit the crime based updo!

tne individual characteristics of the case. A rubber Stamping process such as happe"-

in this case results in @ sham during the sentencing procedure and thwarts t'.

safeguards of both the procedura! system designed by the Oklahoma Legislature a”

the Court's standards provided in Lockett and Eddings.

Eddings page 875, construes the Lockett rule to be that the sentence:

in capital cases must be permitted to consider any relevant mitigating factor...

to avoid a false consistency in sentencing. Edding further holds that ". . . neither

May the sentencer refuse to consider, as @ matter of law, any relevant mitigatinc

evidence." (Emphasis the Court's) Id. at 876. This language lends further support tc

the petitioner's position that the sentencing stage of a trial in Oklahone requires é

full investigation in the mitigating factors of the case. It forbids, as @ matter of law,

& rubber stamping of guilt - determining evidence as the only relevant mitigatio:

factors and there ure petitioner also prays that the second phase of his tria! no: 5

allowed to remain as is, and with all faults, as this is the very phase which deterrin:

whether a human being lives or is sentenced to death.

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

IF PETITIONER'S RIGHTS TO REMAIN SILENT WAS DENIED.

ARGUEMENT

The trial judge allowed Verna Stafford, wife of Roger, to testify over his

objection . The basis on which this was allowed was in most part because she

testified that Roger's brother, Harold Stafford, was present and therefore th.

communication dealing with communications between husband and wife was not

privileged under either 21 O.S. (1981) $702 or 12 O.S. (1981) §2404.

The falsity of this is that Roger could not impeach her testimony by calling

Harold as he had died prior to trial from a motorcycle accident. Even if he were

alive he could not call him as a witness because of this court's ruling in Burton v.

U.S. 391 U.S. 126, 20 L.Ed.2d 476, 88 S.Ct. 1620 (i968) dealing with confession of

co-defendants. Neither could Roger call Harold to testify because he could refuse

to based upon his rights of the Fiftr. Amendments. Allowing Verna Stefford to testify

put Roger in an unenviable position of taking the witness stand in his own defens..

This violated his Constitutional rights guaranteed under the Fifth Amendrent.

In Estelle v. Smith 451 U.S. 454, 68 L.Ed.2d 359, 101 S.Ct. 1866, 1le°:

(1981) the Court states:

"Tne Fifth Amendment privilege is as Droad as the mischief

against which it seexs to guard; Counsel.nan v. Hitchcock, 142

U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892) and the

privilege is fulfilled only when 4 criminal defendant is guaranteed

the right 'to remain siient unless he choose to speak in the

unfettered exercise of his own will, and to suffer no penalty...

. for such silence’ "...

In light of Estelle v. Smith, supra, Roger could not remain silent, but fe:

to take the witness stand to refute his vindictive wife's testimony. He was Doxec °...

In Application of Gault 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428, 1454 (1967) dealin:

with the rights afforded by the Fifth Amendment which are applied to the States >.

the Fourteenth Amendment, it states:

", .. One of the purposes is to prevent the state, whether

by force or by psychological domination, from overcoming the

mind and will of the person under invesiigation and depriving

him of the freedoin to decide whether to assist the state in

securing his conviction."

Roger was denied the right to remain silent because when his wife testified he was

forced to take the witness stand and refute her. This is not consistant with the

requirement that any waiver of said right be voluntary as stated in United States y.

Washington 431 U.S. 181, 97 S.Ct. 1814, 52 L. Ed.2d 238 (1977) and Mirands vy.

Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The Petitioner is aware of this court's holding in Tramriel v. United States

445 U.S. 40, 63 L.Ed.2d 186, 100 S.Ct. 906 (1980) but he would ask the court tc

review its ruling in light of his argument dealing with his Fifth Amendment argu7.en:.

At page 913 of the Supreme Court Reporter it states as follows:

".. . It hardly seems conducive to the preservation of the

marital relationship to place a wife in jeopardy solely by virtue

of her husband's control over her testimony”.

At page 912 the Court poses the proposition:

"Here we must decide hether the privilege against adverse

spousal testimony promotes sufficiently important interests to

outweigh the need for probative evidence in the administration

of Criminal justice.”

In Tramme! the Court talks about placing the wife in jeopardy. But whi"

about Roger in the present case? Is he no* placed in the same jeopardy by bein;

forced to testify in court, sudjecting himself to skillfull and manipulative cro:-

examination, and psychologica! domination.

In Harrision v. United States, 332 U.S. 219, 88 S.Ct. 2008, 20 L.EéG.2¢ i347

(1968) a case where illegally obtainec confessions were obtained and the Defend.--

took the stand, this Court at page 2010 of the Supreme Court Reporter ssic:

',.. The question is not whether the petitioner made a knowing

decision to testify, but why. If he did so in order to overcome

the impact of confessions illegally obtained and hence improperly

introduced, then his testimony was tainted by the same illegality

that rendered the confessions themselves inadmissable... "

The reason why Roger had to take the witness stand was to refute ar

deny supposed conversations with his wife. He could not remain silent. The testino”.

of Mrs. Stafford was tainted, therefore the interest of Roger, the right to rems:

silent was denied him. This interest as graranteed by Fifth Amendment shoul: tas:

presidence over allowing spousal communication as supposed probative evidence.

CHAE LES E GRE" E>.

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CONCLUSION

Effective assistance of counsel, right to remain silent, and equa! protectior.

of the law are all rights guaranteed Roger Dale Stafford, Sr. when he was on tria’

for murder in McClain County. These rights guaranteed him by our founding fathers

when writing. the Constitution and subsequently safeguard by this Court were deniec

him. He would respectfully and humodly ask this Court to grant his Writ of Certiorari.

Respectfully submitted,

a ‘ . a /

Af PA s ‘

. vai le 2 > Lae

> a = he ‘of

Charles B. Grethen

Attorney for Petitioner

P.O. Drawer D

Purcell, Oklahoma 73051

(405) 527-5571

CERTIFICATE OF SERVICE

I, Charles B. Grethen, certify that I mailed @ copy of this Petition fc:

Certiorari and all accompanying documents to Michael C. Turpen, Attorney Gener..

State of Oklahoma, Suite 112, State Capitol, Oklahome City, Oklahoms 73205 thi:

4th day of January, 1954.

J / MP (.=—-,

; Se BE sat TH

» rat?

Charles 8. Grethen

IN THE SUPREME COURT OF THE UNITED STATES

ROGER DALE STAFFORD, “t

Petitioner,

-vs- ) Case No. A-418

THE STATE OF OKLAHOMA,

Respondent.

VERIFIED AFFIDAVIT

Charles B. Grethen, having been first duly sworn upon his oath states th»*

on the 4th dey of January, 1984, he deposited in the U.S. Mail at its Post Office ©

Purcell, Oklahoma 73080. The original and one copy of a petition for a Writ 9

Certiorari in the above address to the Office of the Clerk, Supreme Court of tr:

United States, Washington, D.C. 20543, with sufficient postage.

"aa

on fo

- Ps ,

/ i,

ant > 24. &

Charles 8. Grethen

Sudserided anc sworn to before me this 4th day of January, 1984.

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Notary Puniic

My Commission Expires:

in “2 oO c /

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CHARLES E GRE~~E*

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STAFFORD v. STATE

Okl. 285

Cite as 669 P24 285 (OkLCr. 1963)

contends that the evidence conflicted as to

the cause of death. It is well-settled that

the “(sufficiency of the evidence is a jury

question, and this Court has often held that

when there is some evidence to present to a

jury, we will not interfere.” Woodard v.

State, 567 P.2d 512 (Okl.Cr.1977). We also

note that the evidence should be viewed in

the light most favorable to the State.

Renfro v. State, 607 P.2d 703 (OkI.Cr.1980).

Furthermore,

The credibility of witnesses and the

weight and consideration to be given to

their testimony are within the exclusive

province of the trier of facts and the trier

of facts may believe the evidence of a

single witness on a question and disbe-

lieve several others testifying to the con-

trary. Caudill] v. State, 532 P.2d 63 (Okl.

Cr.1975).

(7) Mr. Cecil Kent, a six-time convicted

felon, testified for the State that, although

he was intoxicated to the point of passing in

and out of consciousness, he saw the de-

fendant hit and kick the victim in the head.

It was up to the jury to assess Mr. Kent's

credibility and to determine the weight to

be given to his testimony. This Court will

not invade the pruvirce of the jurors, who

have the opportunity to gauge the witness's

demeanor at trial. See, Caudill, supra, at

66.

(8) The defendant also complains that

twenty (20) years’ imprisonment for his

conviction of First Degree Manslaughter is

excessive.

The question of excessiveness of punish-

ment must be determined by a study of

al] the facts and circumstances in each

case, and this Court does not have the

power to modify a sentence unless we can

conscientiously say that under all facts

and circumstances, the sentence is so ex-

cessive as to shock the conscience of the

Court. Baldwin v. State, 596 P.2d 1269

(Okl.Cr.1979), and cases cited therein.

The jury could reasonably have concluded

that the defendant over-retaliated for the

physical advance on his girlfriend made by

the intoxicated victim. Therefore, we can-

not find that the punishment imposed

shocks the conscience of this Court.

The judgment and sentence is accordingly

AFFIRMED.

CORNISH, J., concurs.

BRETT, J., concurs in resv'ts.

Roger Dale STAFFORD, Sr., Appellant,

The STATE of Oklahoma, Appellee.

No. F-80-256.

Court of Criminal Appeals of Oklahoma.

Sept. 7, 1983.

Rehcuring Denied Oct. 6, 1988.

Defendant was convicted in the Dis-

trict Court, McClain County, J. Kenneth

Love, Associate Judge, of three counts of

murder in the first degree, and he appealed.

The Court of Criminal Appeals, Bussey,

P.J., held that: (1) motion for change of

venue was not properly before the trial

court; (2) individual voir dire was not re-

quired; (3) prospective juror who haa pre-

determined she would vote against imposi-

tion of death penalty regardless of the evi-

dence presented in support of it was proper-

ly excused; (4) testirnony concerning con-

versations between defendant and his wife

were properly admitted; (5) testimony con-

cerning conversations in which statements

were made by coconspirator who had since

died was admissible; (6) identification of

defendant in a photographic lineup by two

witnesses following hypnosis did not result

in error or prejudice meriting reversal or

modification; (7) photographs of victims’

bodies were properly admitted; (8) trial

counsel's representation of defendant was

adequate; (9) evidence was insufficient to

Apréwbix A

286 Oki.

establish conflict of interests on part of

trial counsel; (10) defendant was afforded

all protection and opportunity created by

statute providing for separate sentencing

stage upon conviction or adjudication of

guilt of murder in the first degree; and (11)

death sentences were properly imposed.

Affirmed.

1. Criminal Law @ 154(2)

Motion for change of venue was not

properly before trial court where motion

was not verified by affidavit and was not

supported by requisite affidavits of at least

three credible persons residing within the

county. 22 0.S.1981, § 561.

2. Jury = 99(1)

Defendant was not entitled to be tried

before a jury completely ignorant of the

facts and circumstances surrounding the

case. 22 0.S.1981, § 561.

3. Criminal Law o 137, 1150

Decision whether to grant a change of

venue rests within the discretion of the trial

court, not to ve disturbed absent an abuse

of that discretion. 22 0.S.1981, § 561.

4. Criminal Law @ 126(1)

Trial court did not abuse its discretion

in not granting change of venue where trial

court questioned each venireman to expose

potential bias, counsel was afforded wide

latitude in examination of the jury panel,

and those ultimately selected to sit as the

jury said they were able to ignore any

information concerning defendant they had

garnered from media sources and could ren-

der a verdict based on the evidence present-

ed. 22 0.S.1981, § 561.

5. Jury @ 131(13)

Trial court did not abuse its discretion

in refusing individual voir dire of venire-

men where counsel for defendant was given

great latitude to ferret out potential juror

bias.

6. Jury = 108

Prospective juror who had predeter-

mined she would vote against imposition of

the death penalty regardless of the evidence

669 PACIFIC REPORTER, 2d SERIES

presented in support of it was properly ex-

cused.

7. Witnesses 185

Testimony of conversation between de-

fendant and his wife was not barred by

statute governing privileged husband-wife

communications which was repealed before

the conversations were had. 12 0.S.1981,

3 3102

&. Witnesses = 188(1)

Testimony concerning conversations be-

tween defendant and his wife were not

barred by statute relating to privilege

against disclosure. 12 O.S.1981, § 3102

9. Witnesses = 188(1)

Evidence concerning conversations de-

fendant had with his wife were not admissi-

ble under statute governing marital com-

munications privilege in criminal cases.

10. Witnesses 193

Testimony of defendant's wife concern-

ing conversations between her and defend-

ant did not fall under st:.tutory definition

“confidential communications,” where al! of

the conversations occurred in the presence

of a third person. 12 0.S.1981, §§ 2504,

2504, subds. A, B.

See publication Words and Phrases

for other judicial constructions and

definitions.

11. Witnesses e192

No martial privilege issue was involved

with most of testimony of wife of defend-

ant concerning conversations between her

and defendant in that the bulk of the testi-

mony concerned overt acts committed by

the defendant, a third person and herself,

and the acts did not constitute confidential

communications. 12 0O.S.1981, §§ 2504,

2504, subds. A, B.

12. Witnesses 222

Trial court properly permitted wife of

defendant to testify that third person was

present during certain conversations be-

tween her and defendant, and in allowing

her to testify as to the substance of those

conversations. 12 0.S.1981, §§ 2504, 2504,

subds. A, B.

STAFFORD v. STATE

Okl. 287

Chte as 669 P.2d 285 (Oki.Cr. 1963)

13. Witnesses = 192

Argument between defendant and his

wife in a hotel parking lot at midnight

which became so loud that it attracted the

attention of a person who was staying in

the hotel was not a “confidential communi-

cation,” in that the defendant was conduct-

ing himself in a loud manner in a place

where he couid have no reasonable expecta-

tion of privacy. 12 0.S.1981, §§ 2504, 2504,

subds. A, B.

14. Criminal Law @=423(1)

Testimony concerning statements made

by coconspirator who died before trial was

admissible under statute providing that a

statement is not hearsay if the statement is

offered against a party and is a statement

by a coconspirator of a party during the

course and in furtherance of the conspiracy.

12 0.S.1981, § 2801, subd. 4, par. b(5).

15. Criminal Law = 1169.2(2)

Identification of defendant in a photo-

graphic lineup by two witnesses who had

been hypnotized before viewing the lineup

did not result in error or prejudice to de-

fendant meriting reversa! or modification,

in that the two witnesses had much inde-

pendent information.

16. Criminal Law e=438(1)

Photographs are admissible in criminal

trial so long as they are relevant and their

probative value to the jury outweighs their

prejudicia] impact, and it is within the dis-

cretion of the trial court to determine the

admissibility of photographs, based on such

standards. 12 0.S.1981, §§ 2401, 2403.

17. Criminal Law @1153(1)

The Court of Criminal Appeals will not

disturb trial court's decision concerning ad-

missibility of photographs absent abuse of

discretion. 12 0.S.1981, §§ 2401, 2403.

18. Criminal Law e=438(6, 7)

In first-degree murder prosecution,

photographs of victims’ bodies as they lay

in the fields where they were found, offered

to demonstrate where and how the bodies

were disposed of following the murders,

and photograpis of the bodies taken after

they were cleaned up, offered to demon-

strate the points of entry and nature of the

gunshot wounds which caused their death,

were relevant to the issues at trial, were

probative of the crime committed, and were

rot unduly prejudicial. 12 0O.S.1981,

§§ 2401, 2408.

19. Homicide *=338(4), 341

In first-degree murder prosecution, evi-

dence that defendant was a bigamist, to

which an objection was sustained, played no

prejudicial role in defendant's judgment

and sentences, and such evidence and trial

court's failure to instruct jury constituted

harmless error.

20. Criminal Law 369.3

In first-degree murder prosecution,

fact that weapons identified by witnesses as

having been seen by them in circumstances

related to the offenses charged had been

used in previous murders for which defend-

ant was convicted and had been introduced

into evidence against defendant in that trial

did not constitute evidence of other crimes.

21. Criminal Law <=641.13(1)

Standard by which trial counse!’s per-

formance would be judged for purpose of

determining whether he rendered ineffec-

tive assistance of counsel] was “farce or

mockery of justice” test which existed at

time of defendant's trial.

22. Criminal Law o>641.13(1)

Burden of establishing ineffective as-

sistance at trial is upon defendant, and is a

heavy burden.

23. Criminal Law =641.13(2)

Defendant's burden of proving he was

not adequately represented at trial was not

sustained by demonstrating possible error

in trial counsel's judgment.

24. Criminal Law *=641.13(2)

Fact that trial counsel failed to proper-

ly move for a change of venue, failed to

move to suppress testimony of various wit-

nesses, and failed to draft a comprehensive

motion for new trial was of no consequence

to question of ineffective assistance at trial,

as Court of Crimina] Appeals considered all

allegations on their merits, and concluded

288 Oki.

that all the testimony was properly admit-

ted.

25. Criminal Law =641.13(7)

Failure of defendant's counsel to object

to sentencing instructions before they were

given did not constitute ineffective assist-

ance of counsel, in that the instructions

were proper and thus, it would have merit-

ed defendant nothing had a timely objec-

tion been made.

26. Criminal Law 2=641.13(7)

Failure of defendant's trial counsel to

present any evidence in mitigation of death

sentence at sentencing stage of trial did not

constitute ineffective assistance of counsel,

in that defendant's counsel incorporated ev-

idence presented at first stage of trial as

evidence in the second stage, and defendant

failed to demonstrate that any mitigating

evidence other than that adduced in the

first stage was available.

27. Homicide 2327

Assertion on appeal] that defendant had

a brain tumor at the age of 12, implying

that such a condition may have resulted in

psychiatric problems, offered as evidence in

mitigation of death sentence, would not be

accepted absent production of evidence to

substantiate the claim.

28. Criminal Law 2=641.13(7)

Brevity of defense counsel's argument

in sentencing stage did not rencer it inef-

fective assistance of counsel, where the

length of the argument paralleled that of

the prosecution, and the substance of the

argument contained philosophical and fac-

tual arguments concerning the appropriate-

ness of the death penalty in this case.

29. Criminal Law 641.5

To afford relief to defendant on

grounds of ineffective assistance of counsel

due to counsel's conflict of interests, it must

be established that an actual, not a possible,

conflict of interest existed, and that the

actual conflict of interest adversely affect-

ed the attorney’s performance. Code of

Prof.Resp., DR5-104(B), 5 O.S.A. Ch. 1,

App. 3; U.S.C.A. Const.Amend. 6.

669 PACIFIC REPORTER, 2d SERIES

30 Crimirs! Law 641.5

Affidavit of defendant’s appellate

counsel that defendant's trial counsel ex-

changed his services for publication rights

to defendant's life story, standing alone,

was not sufficient to establish an actual

conflict of interest on part of the trial coun-

sel. Code of Prof.Resp., DR5-104(B), 5

O.S.A. Ch. 1, App. 3; U.S.C.A. Const.

Amend. 6.

31. Criminal Law 641.5

Even assuming, arguendo, that defend-

ant’s trial counsel had obtained an interest

in the publication rights to defendant’s life

story and that it created a conflict of inter-

est, evidence was insufficient to show that

trial counsel's representation was adversely

affected thereby. Code of Prof.Resp.,

DR5-104(B), 50.S.A. Ch. 1, App. 3; US.

C.A. Const.Amend. 6.

32. Homicide 351

Statute requiring defendant to present

evidence in mitigation of death penalty did

not unconstitutionally shift burden of proof

to defendant, in that jury was properly

instructed concerning the aggravating cir-

cumstances, the mitigation circumstances,

and the burdens of proof associated there-

with. 21 0.S.1981, § 701.11.

33. Homicide 354

In capital case, preliminary hearing on

aggravating circumstances was not re

quired.

34. Homicide 354

Preliminary hearings on the bill of par-

ticulars in capital cases are not required.

35. Homicide 354

Defendant was afforded all protection

and opportunity created by statute provid-

ing for separate sentencing stage upon con-

viction or adjudication of guilt of murder in

the first degree, and was not prejudiced or

denied any substantive or procedural rights

by the manner in which the sentencing was

conducted; fact that defendant did not call

any witnesses on his own behalf or recall

any witnesses from the first stage of tria!

could not be attributed to the procedural

STAFFORD v. STATE

Oki. 289

Chte as 669 P.2d 285 (Okl.Cr. 1983)

format of the sentencing stage. 21 O.S.

1981, §§ 701.10, 701.12.

36. Homicide 2354

Jury did not impose defendant's sen-

tences of death under influence of passion,

prejudice or any other arbitrary factor. 21

0.S.1981, § 701.13, subd. C.

37. Homicide 354

In first-degree murder prosecution, evi-

dence was sufficient to support finding of

aggravating circumstances that defendant

knowingly created a risk of death to more

than one person, that the murders were

especially heinous, atrocious or cruel, that

the murders were committed for the pur-

pose of avoiding or preventing a lawful

arrest or prosecution, and that there existed

a probability that the defendant would com-

mit criminal acts of violence that would

constitute a continuing threat to society.

21 0.8.1981, § 701.13, subd. C.

38. Homicide 354

In first-degree murder prosecution,

sentence of death was not excessive or dis-

proportionate to the penalty imposed in

similar cases, considering both the crime

and the defendant. 21 0.S.1981, § 701.13,

subd. C.

An appeal from the District Court of

McClain County; J. Kenneth Love, Associ-

ate District Judge.

Roger Dale Stafford, Sr., appellant, was

convicted in the District Court of McClain

County, Oklahoma, of three counts of Mur-

der in the First Degree, Case No. CRF-79-

83. He was sentenced to death for each

count and appeals. AFFIRMED.

Garvin A. Isaacs, Oklahoma City, for ap-

pellant.

Jan Eric Cartwright, Atty. Gen., Susan

Talbot, Asst. Atty. Gen., Chief, Criminal

Div., State of Oklahoma, Oklahoma City,

for appellee.

OPINION

BUSSEY, Presiding Judge:

The appellant, “\oger Dale Stafford, Sr.,

stands convicted in this case of three counts

of Murder in the First Degree. He was

tried before a jury in the District Court of

McClain County, Oklahoma, the Honorable

Kenneth Love, Associate District Judge,

presiding. The appellant’s sentence for

each murder was fixed at death, and he

appeals therefrom.

The appellant, his wife (Verna Stafford)

and their three children were transients

who arrived in Tulsa, Oklahoma in June of

1978. Shortly thereafter, the appellant met

up with his brother, Harold Stafford.

On June 21, the appellant, Verna, and

Harold embarked upon a journey with the

purpose of finding an Oklahoma City estab-

lishment to rob. All of the targeted sites

were too busy, so they drove to Pauls Val-

ley to look for motels to rob. Having ex-

amined the number of cars in the parking

lots of each of the motels they visited, it

was determined that it would not be profit-

able to rob any of the motels.

As they drove back to Oklahoma City, the

trio decided to stop their car, raise the hood,

and feign distress, in hopes that a wealthy

good samaritan would come along. Verna

attempted to flag down by-passing cars as

the appellant and Harold lay in wait in the

darkness beside the car.

After a period of time, a blue Ford Rang-

er pickup with a white camper shell pulled

off the road, and the driver, Sergeant Mel-

vin Lorenz, exited the vehicle to help Ver-

na. Mr. Lorenz looked at the Stafford

automobile, and informed Verna that he

could detect no mechanical difficulties. At

that point, the appellant and Harold ap-

proached Sergeant Lorenz and demanded

his wallet. Th: appellant was armed with a

pistol. Sergeant Lorenz informed the ap-

pellant that he and his family were on their

way to his mother’s funeral in North Dako-

ta, and that he could give the appellant

some money, but not all that he had.

Upon hearing this, the appellant shot the

Sergeant two times. Sergeant Lorenz’

290 Oki.

wife, Linda Lorenz, heard the gunshots, and

ran toward Verna Stafford from the pick-

up. Verna knocked Linda Lorenz to the

ground. The appellant shot her as she fell.

The three then heard dogs barking and a

child calling from the back of the camper.

The appellant approached the camper, pro-

duced a knife, cut a hole in the screen, and

fired his pistol into the darkness. The bul-

lets from the pistol forever silenced the

voice of eleven-year-old Richard Lorenz.

The appellant and Harold dragged the

bodies of Sergeant and Mrs. Lorenz into a

field adjacent to the highway where they

were stopped. The appellant and Harold

drove the Lorenz vehicle approximately

three-fourths (%) of a mile down the high-

way, and dumped the body of Richard Lor-

enz in a field at that point. They then

drove the pickup to Will Rogers Airport in

Okiahoma City. Verna followed them in

the Stafford automobile.

Upon arriving at Will Rogers, Verna

parked the Stafford automobile and got in

the Lorenz’ pickup with the appellant and

Harold. The trio drove to Stillwater, Okla-

homa. They eventually returned to Will

Rogers and abandoned the pickup. The

appellant drove the Stafford vehicle back to

Tulsa, while Harold and Verna hitchiked to

Tulsa.

Much additional evidence was adduced at

trial concerning eyewitness identification of

the appellant, Verna and Harold at various

1. Due to the fact that the appellant has been

sentenced to death in this case, and that he

argues trial counsel rendered ineffective assist-

ance, we have also considered the issue on its

merits. We conclude that the motion for

change of venue was properly denied.

The mere fact that there was much publicity

concerning this crime, the “Sirloin Stockade

murders” and the appellant's implication in

both does not by itself establish that the appel-

lant could not receive a fair trial in McClain

County. Shapard v. State, 437 P.2d 565 (Oki.

Cr.1967). It is not surprising that all of the

veniremen had heard of the appellant. How-

ever, the appellant was not entitled to be tried

before a jury completely ignorant of the facts

and circumstances surrounding the case. The

trial court questioned each venireman to ex-

pose potentia! bias, and counsel was afforded

wide latitude in examination of the jury panel.

669 PACIFIC REPORTER, 2d SERIES

points throughout the evening and night of

June 21-22, 1978; of the appellant’s em-

ployment; and of various other matters

which shall be discussed only as they be-

come pertinent to the appellant’s allega-

tions of error.

I. PRE-TRIAL

The appellant argues a change of venue

should have been granted in this case. In

support of his allegation, he points out the

fact that there was widespread publicity

throughout Oklahoma concerning this case;

and, additionally, that he had been convict-

ed of the “Sirloin Stockade murders” short-

ly prior to his trial for the Lorenz murders.

{1-4] Trial counsel for the appellant

failed to follow the proper procedure as set

forth in our statutes to apply for a change

of venue. See, 22 0.8.1981, § 561. The

motion was not verified by affidavit, and

was not supported by the requisite affida-

vits of at least three credible persons resid-

ing within the county. Thus, the motion

was not properly before the trial court, ard

is not properly before this Court.' Ake v.

State, 663 P.2d 1 (Oki.Cr.1983).

In a related assignment of error, the ap-

pellant argues the trial court should have

conducted the voir dire of the veniremen on

an individual basis.

We have held numerous times that the

decision whether to voir dire the prospec-

tive jurors individually is a matter of the

The record reflects that those ultimately se’>ct-

ed to sit as the jury said they were av.+ to

ignore any information concerning the appel-

lant they may have garnered from media

sources. It was sufficient that each juror stat-

ed he/she could disregard any opinion he/she

may have had, and render a verdict based on

the evidence presented. Irvin v. Dowd, 366

U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961);

Russell v. State, 528 P.2d 336 (Oki.Cr.1974).

The decision whether to grant a change of

venue rests within the discretion of the trial

court, not to be disturbed absent an abuse of

that discretion. Thomsen v. State, 582 P.2d

829 (OkI.Cr.1978). Since we do not believe the

record will support an assertion that the imhab-

itants of McClain County were so prejudiced

against che appellant that a fair and impartial

trial was not possible, we find no abuse of

discretion.

STAFFORD v. STATE

Cite as 669 P.2¢ 28

trial court's discretion. Morrison v. State,

619 P.2d 203 (Okl.Cr.1980); Irvin v. State,

617 P.2d 588 (Okl.Cr.i980); Vavra v. State,

509 P.2d 1379 (OklI.Cr.1973); Gonzales v.

State, 388 P.2d 312 (Okl.Cr.1964).

[5] Although we agree that in proper

cases, conducting individual wir dire may

be useful and appropriate; s2e, Nebraska

Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct

2791, 49 L.Ed.2d 683 (1976); we do not

believe the trial court committee error by

refusing to do so in the present case.

As noted earlier, in addition to the trial

court's preliminary questions, counsel for

the appellint was given great latitude to

ferret out potential juror bias. Indeed, the

transcript of the voir dire refiects tnat

those who had preconceived opinions of the

appellant's guilt or innocence, or had doubts

about their ability to be impartial, or had

reservations about the death penalty, freely

stated so.2 The remaining veniremen ad-

mitted they had been exposed to media

accounts of the “Sirloin Stockade murders”

as well as the Lorenz murders. However,

counse] questioned each in detail] to ensure

each could and would dispel those accounts

from their minds.

We have no reason to believe the atmo-

sphere of the voir dire prohibited the ve-

niremen from honestly expressing their

emotions concerning this case. There was

no need for individual voir dire, thus no

abuse of discretion.’

In his third allegation of error, the appel-

lant argues the court erred in excusing a

potential juror under Witherspoon v. Illi-

nois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d

776 (1968).

(6] The form and substance of the ques-

tions posed the venire panel by the trial

court were in compliance with those we

2. Mrs. Furr (Tr. 16-17, 24-25, 34-35); Mr.

Bartley (Tr. 75-77); Mrs. Beck (Tr. 125, 132-

137); Mrs. Abney (Tr. 157-159); Mrs. Young

(Tr. 160-162); Mrs. Smith (Tr. 194-196); Mrs.

Morehead (Tr. 245-249).

3. The appellant has provided us with examples

of several states whose legislatures have made

special statutory provisions to afford defend-

669 P.2d—8

Okl. 29]

(OkLCr. 1983)

have approved in Chanev v. State, 612 P.2d

269 (OkI.Cr.1980). Additional questions

were asked by the judge to ensure he did

not commit the error the appellant alleges

today. A review of the discourse between

the trial court and prospective juror Smith

reveals no violation of Witherspoon.’ It is

apparent that Ms. Smith had predetermined

she would vote against imposition of the

death penalty, regardless of the evidence

presented in support of it. Witherspoon,

supra, at note 21. Ms. Smith was properly

excused.

Il. THE GUILT STAGE

Two of the appellant's allegations of er-

ror concern the fact that testimony was

admitted at trial concerning conversations

had between Verna Stafford and himself.

The allegations specifically concern: 1) con-

versations held in a Tulsa restaurant in the

presence of Harold Stafford, to which con-

versations Verna testified at the appellant's

trial; and 2) that of an argument had be-

tween Verna and the appellant, which argu-

ment was overheard by a third person who

testified concerning the content of the ar-

gument at the appellant’s trial

The appellant argues that the testimony

in both instances concerned privileged hus-

band-wife communications, protected by

Laws 1953, p. 52, § 1, codified as 12 OS.

§ 385 (now repealed). He argues that, al-

though the statute has subsequently been

repealed, it was in force at ihe time the

conversations were held, thus it should have

been controlling at trial.

(7,8) The appellant is mistaken in his

belief that section 385 was in force in June

of 1978, when the conversations were had.

That statute was repealed by Laws 1977, c.

265, § 18, codified as 12 O.S. § 418.4 (now

repealed), effective October 1, 1977. Thus,

ants in capital cases the opportunity to individ-

ually voir dire veniremen. As stated above,

however, we do not believe individual voir dire

was necessary in the present case, and are not

persuaded by the legislatively enacted criminal

procedure of other states.

4. See Appendix A

292 Oki.

the appellant’s argument fails from the out-

set. However, even if we apply the appel-

lant’s argument to Section 418.4 (which, we

note was repealed effective October 1, 1978,

by Laws 1978 c. 285 § 1102, now codified as

12 0.S.1981, § 3102),5 we conclude the argu-

ment has no merit. The changes outlined

above constituted changes in procedure

only, and did not affect the substantive

rights of the appellant. See, Taylor v.

State, 640 P.2d 554 (OkI.Cr.1982). Thus, the

appellant did not have a right to be gov-

erned by the prior statute, regardless of

which one he thought to be in force. See,

Dobbert v. Florida, 432 U.S. 282, 97 S.Ct.

2290, 53 L.Ed.2d 344 (1977); Thompson v.

Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed.

204 (1898).

[9] In addition to his argument concern-

ing the repealed 12 0.S., § 385, the appel-

lant argues that Laws 1957, p. 167, § 1,

codified as 22 O.S., § 702 (now repealed)

should have controlled the admissibility of

the evidence concerning the conversations

he had with Verna. Section 702, which was

still valid at the time of the appellant's

trial, was more restrictive than 12 0.S.1981,

§ 2504, which was also in force. The evi-

dence would not have been admissible un-

der Section 702. However, as we stated in

Taylor v. State. supra; and Lavicky v.

State, 6382 P.2d 1234 (Okl.Cr.1981), it is our

opinion that Section 702 was superceded by

5. The statute governing the admissibility of

Husband-Wife communications is 12 O.S.1981,

§ 2504. Title 12 O.S.1981, § 3102 is the repeal-

er which serves to facilitate the authority of

§ 2504.

6. The appellant argues this reasoning improp-

erly permits the “bootstrapping” of Verna Staf-

ford’s testimor.y, bec. se the only way to

prove the conversatic:., were not confidential

under § 2504(A) and (B) was to allow Verna to

testify they were not.

We would first point out that the bulk of

Verna. Stafford’s testimony concerned overt

acts committed by the appellant, Harold and

herseif. These acts did not constitute confiden-

tial communications. See, Pereira v. United

States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435

(1954); Wolfle v. United States, 291 U.S. 7, 54

S.Ct. 279, 78 L.Ed. 617 (1934); United States v.

Lustig, 555 F.2d 737 (9th Cir.1977). Thus,

there is no marital privilege issue involved with

most of Verna's testimony.

669 PACIFIC REPORTER, 2d SERIES

Section 2504. We note that the legislature

has subsequently repealed § 702 (Laws

1982, c. 269, § 2, effective October 1, 1982),

thereby lending force to our conclusion.

We therefore conclude that the sole stat-

ute controlling the admissibility of the con-

versations had between the appellant and

his wife was 12 0.S.1981, § 2504. Having

settled that issue, we turn now to our deter-

mination of whether the evidence was prop-

erly admitted under that statute.

Section 2504(B) limits the marital privi-

lege in criminal cases to “confidential com-

munications.” According to Section

2504( 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.