Petition — Dutton v. Oklahoma (No. 83-6500)

Supreme Court brief1983

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IN THE C

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SUPREME COURT OF THE UNITED states ~———~-"~ °OURT, Us

APRIL TERM, 1984

LONNIE JOE DUTTON,

Pet itione:,

ayo

STATE OF OKLAHOMA,

Respondent.

WRIT OF CERTIORARI TO

OKLAHOMA COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTOIORARI

THE

JAMES W. BERRY

ATTORNEY AT LAW

2500 First City Place

Oklahoma City, Oklahoma 73102

(405) 236-3167

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED

1. Can the death sentence stand under the Fourteenth

Amendment to the United States Constitution when the trial court

disallowed crucial mitigating evidence in te sentencing phase of the

trial?

y ae What criteria are used to determine effectiveness of

—icCss

counsel under the sixth Amendment to the United States Consitution?

mo ak

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

APRIL TERM, 1984

LONNIE JOE DUTTON,

Petitioner,

oye

STATE OF OKLAHOMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE OKLAHOMA COURT OF CRIMINAL APPEALS

Petitioner prays that a Writ of Certiorari issue to review

the judgment of the Oklahoma Court of Criminal Appeals entered int his

case on the 6th day of January, 1984.

OPINION BELOW

The opinion of the Oklahoma Court of Craiamsnal Appeals was

pubiished and appears at _ _ P.2d ___, 55 O.B.J. 2 (January 14,1984).

It is annexed as Appendix A t this petition. The order denying

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

pet ition.

JURISDICTION

The judgment of the Oklahoma Court of Criminal Appeals was

entered on January 6, 1984. A timely petition for rehearing was

denied on January 31, 1984. Jurisdiction of this Court is invoked

under 28 U.S.C. Section 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THIS CASE

This case involves the Fourteenth Amendment to the United

tates Constitution which provides, in relevant part:

prive any

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nor deny

urisdiction

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without due p

The Sixth Amendment to the United States Constitution

"In all criminal prosecutions the

accused shall enjoy tne right to

have a 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."

This case also involves provisions of the Oklahoma

Statutes.

l. 21 90.8. Section 701.7 Murder in the first degree.

A. A person commits murder inthe first

degree when he unlawfully and with malice

aforethought causes the death of another

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 dégree when he takes

the life of a human being, regardless of

malice, in the commission of forcible

rape, robbery with a dangerous weapon

kidnapping, escape from lawful custody,

first degree burglary or first degree

arson.

: 21 0.S. Section 701.9 Punishment for murder.

A. A person who is convicted of or pleads

guilty or nolo contendere to murder in the

first degree shall be punished by death

or by imprisonment for life.

STATEMENT OF THE CASE

The petitioner, LONNIE JOE DUTTON, was convicted of murder

in the first degree in violation of 21 0.S. Section 701.7. He was

sentenced to death.

THE EVIDENCE AT TRIAL

Eddie Kipiinger testified at trial that while he, his

brother and a friend were at the Cottage Bar in Oklahoma City,

Oklahoma, on January 2, 1979, the petitioner entered the tavern.

(TR p.210,211)* The petitioner was served a bowl of soup by Wanda

Honeycutt, mother of Dale Eugene Gray, the alleged victim. (TR p. 212)

Kiplinger and his two (2) companions departed shortly thereafter for a

period of five (5) minutes. (TR. p.212) The only persons remaining in

the bar were the petitioner, Honeycutt and Gray. (TR p. 212,361)

According to Wanda Honeycutt, the petitioner pulled out a

gun and ordered her and her son to lie on the floor behind the bar.

(TR. p.362) The petitioner first shot her son and then shot her.

(TR. p.363-365)

Kiplinger returned to the tavern and found Honeycutt shot

and Gray dead. (TR. p.212) Both Kiplinger and Honeycutt positively

identified the petitioner as the man who was in the Cottage Bar and as

the man who shot Honeycutt and killed Gray. (TR. p.211,361)

*TR. denotes the trial transcript filed in the Oklahoma Court of

Criminal Appeals.

On January 5, 1979, and on January 1l, 1979, petitioner made

voluntary statements confessing to the commission of the murder after

being read his Miranda warnings. (TR p.273-278) Said confessions were

introduced into evidence. (TR p.344-349) The petitioner also told the

police officers at the time he made his confessions that the victim's

blood stained the coveralls petitioner was wearing and that he

discarded these coveralls at another tavern nearby. (TR. p.347-349)

These coveralls were later found at the suggested tavern's locale on

January 9, 1979. (TR p.279,282)

After the state rested its case, petitioner's trial counsel

attempted to call him to testify on his own behalf. The petitioner,

however stood mute and failed to testify. (TR p.374-376) Having no

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gulity of first degree murder. (TR p.41l1)

, ;

During the sentencing phase of the trial, the state first

presented its case as to the aggravating circumstances. The state's

evidence mainly consisted of testimo

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allegedly connecting the

petitioner with a robbery murder occurring at the Agnew Bar on January

1, 1979, and a robbery at the Spango Bar on January 3, 1979. (TR p.

Petitioner's only other offer of mitigating evidence was the

testimony of petitioner's mother, Mrs. Dutton. The trial court

disallowed her taking the stand due to her presence in the courtroom

throughout the trial proceedings after the Rule of Sequestration had

been invoked. (TR p.484)

The jury found that due to the aggravating circumstances the

death sentence should be imposed. (TR p.548)

HOW THE FEDERAL QUESTIONS

WERE RAISED AND DECIDED BELOW

1. The petitioner alleged on appeal that it was error to impose the

death sentence when crucial mitigating evidence was disallowed

introduction. The Oklahoma Court of Criminal Appeals held that the

failure to consider such evidence resulted in no harm to the

pet itioner.

2. Petitioner contended on appeal that he was denied effective

assistance of counsel under the Sixth Amendment to the United States

Constitution. The Oklahoma ourt of Criminal Appeals held that

petitioner received reasonably competent assistance of counsel.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER IT WAS FUNDAMENTAL ERROR

TO DISALLOW CRITICAL MITIGATING EVIDENCE

In the sentencing stage of petitioner's trial the trial

court refused to permit the petitioner's mother to testify in support

of mitigation. The trial court disallowed her testimony due to her

presence in the courtroom after the Rule of Sequestration had been

invoked. Although trial counsel offered no proof as to the context of

her testimony, the court can take notice of this plain error as

affecting substantial rights. Fisher v. United States, 328 U.S. 463,

90 L.Ed, 1382 (1946).

Because the only other evidence presented in support of the

mitigation was a confession to another murder, the mother's testimony

would have been crucial to the petitioner's case. The disqualification

of the mother as a witness, based on a technicality such as the Rule

of Sequestration, denies the petitioner due process of law as is

guaranteed him by the Fourteenth Amendment to the United States

Constitution.

This Court held in Green v. Georgia, 442 U.S. 96,99 S.Ct.

2150, 60 L.Ed 2d 738 (1979), that to exclude testimony in the

punishment phase of the defendant's trial on the grounds that it

constituted hearsay was a denial of a fair trial and a violation of

the Due Process Clause of the Fourteenth Amendment.

Petitioner argues that excludirg critical cestimony based on

the hearsay rule is similar to excluding critical testimony based on

the Rule of Sequestration. To exclude crucial evidence in the

sentencing phase of a defendant's trial based on such technicalities

is fundamental error and affects substantial rights.

Morever, it is within a trial court's discretion to grant

exceptions to the Rule of Sequestration. Eddings v. Oklahoma, 102

S.Ct. 869 (1982).

The Oklahoma Court of Criminal Appeals stated in Flynt v

State, Okl. Cr., 216 P.2d 344 (1950):

"The fact that a witness, who is

under a rule, remains in a court-

room during the trial does not

thereby make her incompetent as a

witness; such fact only goes to

affect non-credibility as a witness

Or subjects her to punishment for

contempt of court for 2

n the courtroom after the witnesses

Lal

had been excluded.

Failure to allow mitigating evidence in the sentencing phase

of the trial is a violation of the Fourteen Amendment to the United

States Constitution. The finding by the Oklahoma Court of Criminal

77)

Appeals that the refusal to permit the mothe

abuse of discretion deprives the petitioner of due process of law.

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II.

THIS COURT SHOULD GRANT CERTIORARI

TO DETERMINE WHETHER PETITIONER WAS

DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AS IS GUARANTEED HIM BY THE SIXTH

AMENDMENT TO THE CONST If UT ION

Petitioner was not afforded effective assistance of counsel.

His representation has consisted of four (4) different counsel: his

first attorney was dismissed due to a potential conflict of counsel;

his second counsel represented him at trial but abandoned him on

appeal; his third counsel also abandoned him on appeal; his fourth

counsel his present lawyer, lodged his appeai after being Court

appointed three (3) years after petitioner's trial.

Petitioner contends that he was deied effective assitance of

counsel at trial. Oklahoma's standard for effective counsel was

established in Johnson v. State Okl. Cr.,620 P.2d 1311 (1980).

Oklahoma's standard is reasonbly competent counsel.

Due to petitioner's trial counsel's blatant errors

throughout trial, petitioner maintains he was not given reasonably

competent counsel.

Some of the errors are as follows:

A. Failure to properly prosecute a change of venue.

Trial counsel did not diligently prosecute his

motion for change of venue. Petitioner's co-

defendant was granted such a motion. Although

there is no record of the hearing, if trial

counsel had properly prosecuted the motion, it

surely would have been granted. The same pre-

trial publicity existed for both defendants.

B. Failure to pursue motions.

Trial counsel's motions were filed the Friday

preceding petitioner's trial. These motions,

including motins to inspect and produce witnesses

were not argued, however, until the morning of

trial.

C. Failure to give requested instructions.

Trial counsel failed to give requested instructions.

Trial counsel alluded to duress throughout the trial

but did not request an instruction on the defense of

duress.

D. Reference to petitioner’s inability to testify

in front of the jury.

Trial counsel repeatedly asked the petitioner

to take the witness stand while the petitioner

was before the jury. It is fundmental error

to refer either directly or indirectly to a

defendant's failure to testify. Thorenson v.

State, Okl. Cr. 100 P.2d 896 (1940).

E. Failure to excise prejudicial matter from

petitioner's statement.

Trial counsel introduced into evidence in the

sentencing phase of petitioner's trial a con-

fession to the commission of another murder

robbery. Trial counsel was purporting to show

the duress petitioner had been under from the

co-defendant; however, trial counsel failed to

excise any of the prejudicial matter.

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ecord for improper remarks

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his Petition for

Certiorari because he was denied effectie assistance of counsel as is

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Constitutionalily guaranteed him. Petitioner's triai counsedi clearly

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ell below the reasonably competent standard adopted Dy OKianoma.

CONCLUSION

For the reasons stated above, the petitioner requests a writ

of certiorari be granted.

Respectfully submitted,

JAMES W. BILL BERRY & ASSOCIATES

/ ( ( rt 8 q

JAMES W, BERRY wi Bae? \

2500 First City Place

Oklahoma City, Oklahoma 73102

(405) 236-3167

COUNSEL FOR PET IT IONER

CERTIFICATE OF SERVICE

I. James W. Berry, certify that I mailed a copy of this

Petition for Certorari and all accompanying documents to Michael C.

Turpen, Attorney General, and Tomilou Gentry Liddell, Assistant

Attorney General, State of Oklahoma, Suite 112, State Capital,

Oklahoma City, Oklahoma 73105,

on this day of March, 1984.

Ji a EF,

JAMES W. BERRY

United States v. Brignoni-Ponce, 422 U. S. 873, 95

S. Ct. 2574, 45 L. Ed. 2d 607 (1975); United States

v. Ortiz, 442 U. S. 891, 95 S.Ct. 2585, 45 L.Ed. 2d

623 (1975); Almeida-Sanchez v. United States, 413

U. S. 266, 93 S.Ct. 2535, 37 L. Ed. 2d 596 (1973).'

Accordingly, Judge Williamson properly sustained

the appellant's demurrer to the evidence on the basis

of Judge Geb’s order, at the appellant's trial.

We are furthermore not persuaded to adopt '

alternate theory proffered by the State, which theory

would sanction the stops on the basis of its police

power to provide for the public safety and welfare.

The State argues that, if routine and reasonable

driver's license checks are permitted to ensure the

safety of the citizens of Oklahoma, then roadblocks

designed solely to discover and apprehend intox-

icated drivers are likewise a legitimate exercise of its

power. While we do not categorically reject this

argument, we would note that the State's power to

conduct routine and reasonable driver's license

checks is grounded in 47 O. S. 1981, §6-112. See,

Brantley v. State, 548 P.2d 675 (Ok!. Cr. 1976); Ed-

wards v. State, 319 P.2d 1021 (Okl. Cr. 1957). We

find no statutory authority which would support,

directly or indirectly, the State's contention that it

has the power to establish checkpoints to inspect all

motorists to discern if any are intoxicated.

The action taken by the district court is AFFIRM-

ED, and the State's appeal hereby DISMISSED.

Appeai upon a Reserved Question of law from the

District Court, Oklahoma county; Creston B.

Williamson, Judge.

THE STATE OF OKLAHOMA appeals upon a

reserved question of law from Oklahoma County

District Court, Case No. CRM-81-3994. The order

of the District Court sustaining the appellant's

demurrer to the evidence is AFFIRMED, and the

State's appeal DISMISSED.

Robert H. Macy, Dist. Atty., Larry A. Jones,

Asst. Dist. Atty., Dist. No. seven, Oklahoma

County, attorneys for appellant.

Ted. A. Richardson, Oklaiioma City, attorney for

appellee.

CORNISH, J., and

BRETT, J., concur.

1. Cases involving police action similar to the pres-

ent have recently arisen in other states. See, Com-

monwealth v. McGeoghegan. 449 N.E.2d 349 (Mass

1983); and State ex rel. Ekstrom v. Justice Court of State

of Anzona, 663 P.2d 992 (Ariz. 1983). In McGeoghegan,

the Massachusetts Supreme Court Judicial Court held the

roadblock urfconstitutional because there was no show-

ing of sufficient police presence at the roadblock, and

because of inadequate lighting and warning to oncom-

ing motorists. The Arizona Supreme Court held in ex rel.

Ekstrom that the police officers conducting the roadblock

were given insufficient guidelines to govern the scope and

nature of their actions; hence they were afforded an un-

constitutional amount of discretion.

LONNIE JOE DUTTON, Appellant. v. THE

STATE OF OKLAHOMA, Appellee.

No. F-79-337. January 6, 1984.

CORNISH, J. Lonnie Joe Dutton was convicted

by a jury of Murder in the First Degree in the District

Court of Oklahoma County.

Dale Eugene Gray, the deceased, was gunned

down after being robbed on January 2, 1979, while

working in the Cottage Bar in Oklahoma City. His

mother, Wanda Honeycutt, was also shot, but

recovered and testified at appellant's trial, identify-

ing Dutton. On January 5, and January 11, 1979,

appellant admitted to police officers that he shot both

victims while his confederate, Carl Sheldon Morgan,

waited in the car. He also gave written statements

concerning his involvement in another robbery-

murder of one Wilma Speaks on January 1, 1979 at

the Agnew Bar in Oklahoma City, Oklahcina

Appellant tirst assi;ns as error the trial court's

tailure to grant pre-trial motion for change of venue.

Appellant's contederate, Car! Sheldon Morgan, was

granted a change of venue and was tried in Tulsa

County. Dutton argues that the publicity was equal-

ly damaging for both, and that his motion should

have been granted

We first point out that appellant failed to follow

the procedure prescribed by 22 O.S.1971, §561 in

presenting his change of venue motion to the trial

court. A written and verified petition is not contain-

ed in the record, nor were affidavits of credible

witnesses submitted. The petition, not being properly

before the trial court, is not properly before the ap-

pellate Court. Ake v. State, 663 P.2d 1

(Okl.Cr. 1983).

Appellant had the burden to demonstrate ‘hat he

could not get a fair trial in Oklahoma County. He

Vol. 55—No. 2

provided no evidence to prove this. but rather relies

on the fact that Carl Sheldon Morgan was granted

a change of venue supposedly on the basis of adverse

pre-trial publicity. Appellant has failed to overcome

the presumption that he was able to receive a fair

trial. Hammons v. State, 560 P.2d 1024

(Ok! Cr.1977). The mere showing of adverse pre-

trial publicity will not overcome this presumption

especially where an extensive voir dire was allow-

ed. as was done here. to ferret out those jurors who

were unable to render a verdict solely upon the

evidence presented at tna!. Russell v. State, 528 P.2d

336 (Ok! Cr.1974). That a change of venue was

granted to his accomplice does not necessarily dic-

tate that a change of venue be granted appellant. See

State ex rel. Young Warren, 536 P.2d 965

(Okl.Cr.1975!. The trial judge did not abuse his

discretion in denying appellants motion

Appellant next assigns as error the trial courts

refusal to conduct a competency hearing prior to

trial. His attorney states that Dutton made an out-

burst at trial and retused to assist counsel in his own

detense

Appellant was tried in May of 1979. The control-

ling statute at that time was 22 O.S.1971, §1162

(now 22 O S.1981), §1162). It required that a jury

be impaneled to determine a criminal defendant's

competency to stand tnal or to be sentenced when

a doubt arises as to detendant's present sanity. The

doubt referred to in the statute is that in the tral

judge s mind after an evaluation of the facts, source

of intormaticn. and motive. The tnal judge's finding

is not disturbed on appeal! absent a showing of clear

abuse of discretion. Beck v State. 626 P.2d 327, 328

(Okl.Cr.1981

In the present case, the trial judge made a deter-

mination that appellant was competent to stand trial

based upon his own observations as well as the opin-

ions of two psychiatrists who examined appellant at

his attorney's request on the second day of trial

They reported that appellant was simply “scared

stift . Appellant's lack of cooperation with his at-

torney was due to his fear of the possible conse-

quences if found guilty, as opposed to an inability

to observe appellants conduct during the trial and

pnor to sentencing. Reynolds v. State, 575 P.2d 628

(Ok!.Cr.1978). We find that no abuse of discretion

occurred

Appellant next contends that two prospective

jurors were improperly dismissed tor cause under

Witherspoon v. Illinois, 391 P.2d 510, 88 S.Ct. 1770

The Oklahoma Bar Journal

20 L.Ed.2d 776 (1968). The veniremen tended to

hedge when answering questions by the prosecutor

and judge. but ultimately indicated that their views

regarding capital punishment would prevent or

substantially impair performance of their duties as

jurors. luror Rutherford, when asked if he could

decide the issue of guilt without considerng the

potential penalties, remarked: “Il don't believe |

could. I don’t believe I could get that off my mind,

no.” A juror who cannot impartially decide guilt

violates his oath, anc this is a proper challenge for

cause under the directives of Witherspoon. Adams

v. Texas. 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d

581 (1980). Juror Hopcus remarked, when asked

whether she could ever vote to impose the death

penalty. “I don't think I could.” This juror indicated

by her several answers that she was irrevocably com-

mitted prior to trial to vote against the death penal-

ty. This is also proper cause to excuse a juror under

Witherspoon, 391 U.S. at 522. n.21, 88 S.Ct. at

1777, 20 L.Ed.2d at 785: see also jones v. State. 660

P.2d 634 (Okl_Cr.1983)

Appellant assigns as error the admission into

evidence of his statements to police officers after he

was arrested on January 5, 1979, but prior to his ar-

raignment on January 11, 1979. Appellarit urges that

the delay in arraigning him was unnecessary and in-

tringed upon his constitutional rights under the Fifth

and Fourtheenth Amendments to the United States

Constitution, rendering his statements involuntary.

The nght to come before a magistrate without un-

necessary delay is a statutory (22 O S.1981, §181),

not a federal constitutional right. Delaney v. Glad-

den, 397 F.2d 17 (9th Cir. 1968), cert. den., 393 U.S.

1940. 89 S.Ct. 660, 2) L.Ed.2d 585; Sidham v. State,

£07 P.2d 1312 (OkI.Cr.1973). The burden is upon

the appellant to demonstrate a delay and that he

was prejudiced by such delay. E.g., Stidham, supra.

| T]his court has never held that taking a state-

ment or confession of an accused person prior

to his arraignment will per se vitiate such state-

ment or confession nor render it inadmissible

upon a subsequent trial of the accused.

In re Dare, 370 P.2d 846, 854 (OklI.Cr.1962). In

Dare. a delay of thirty-three days did not of itself

cause prejudice

Each of appellant's statements were introduced

only after the trial judge conducted a Jackson v.

Denno' hearing and found them voluntary. The jury

was instructed that they should not consider this

evidence unless they found it to be voluntanly given

Upon a review of the record. we are satistied that

the delay in arraigning appellant did not coerce the

admissions

Appellant next asserts that the trial court, pros-

ecutor, and his own counsel made unconstitutional!

comments on his retusal to testity. During trial. ap-

pellant was not responsive to his appointed counsel

unlike pnor to trial. Appellant was examined by two

psychiatrists and found to be ‘scared . but comp-

etent to stand trial. These doctors advised the trial

judge that delaying appellant's trial would only

worsen this condition. The trial proceeded. and

detense counsel announced during opening statement

that appellant would testify The defense theory was

that appellant committed the crimes under duress

trom his accomplice. Appellant did not respond

when called by his attorney to testify. The trial judge

immediately called the attorneys and appellant into

chambers and there advised appellant of his right to

testify or to not testity. He advised appellant that

he could be cross-examined about prior telony con-

victions it did take the witness stand. The ap-

pellant would not respond to the judge. Court was

again called into session and detense counsel again

called appellant to testity. Appellant did not respond

to his attorney s calls and the defense rested. having

no further evidence. The trial judge twice ordered

the record to show that the “Defendant sits sile»t

and declines to testify. and once stated that the

detense rested, “there being no evidence presented

to the jury.” During closing arguments. defense

counsel remarked that his client was ‘physically

unable’ to testify. The prosecutor objected that there

was no evidence of that nature, and the judge sus-

tained the objection

From a review of the record, it is apparent that

any error which may have occurred was invited by

detendant and his trial counsel. We have previous-

ly held that a defendant may not complain of error

he has invited, and that reversal canot be predicated

upon such error. Fox v. State, 524 P.2d 60

(Ok! Cr.1974). See also Lockett v. Ohio, 438 U.S

599, 98 S.Ct. 2954, 57 L.Ed.2d (1978).

The judge's remarks were made simply to clarify

for the record what had occurred. \iureover, the ob-

jection by the prosecution and the trial judge's rul-

ing did not constitute a comment upon appellant's

refusal to testify. Willis v. State, 636 P.2d 372

(Okl.Cr.1981).

Appellant implies that he received ineffective

assistance of counsel in this regard. A criminal

detendant should receive reasonably competent

assistance of counsel. Johnson v. State. 620 P.2d

1311 (Okl.Cr.1980) However, this does not man-

date flawless counse! of counsel judged ineftective

by hindsight. Clark v Blackburn. 619 F.2d 431 (Sth

Cir.1980). See also Johnson. 620 P.2d at 1313. We

should not now second guess detense counsel's trial

strategy. Id We are unable to conclude upon a

review of the record that the level of competency

fell below the standard required by the law. especial-

ly in light of appellant's conduct. which contributed

to the alleged error

As appellants sixth allegation of error, he asserts

that the trial court erred in admitting several

photographs of the deceased on the floor of the bar

The pictures dep cted the gun shot wound to the

head. as well as the position of the body in relation

to the room. Appellant complains that the

photographs were not accurate since the body. which

originally lay face down. had been turned uprizht.

and that they served no other purpose than to in-

tlame the passions of the jury

We disagree. The jury was made aware that the

body had been moved. Furthermore. the photo-

graphs were not unduly gruesome and helped the

jury to visualize the crime scene. and tended to cor-

roborate the pathologist's testimony of the cause of

death. Thus, we find its probative value outweighed

any prejudicial ettect Boutwell v. State. 659 P.2d

322 (Okl.Cr.1983)

Appellant next assigns as error the tral court's

failure to instruct the jury, sua sponte. that they

could draw no adverse inferences from appellant's

refusal to testify. Appellant's authonty for such an

assignment, Carter v. Ke:.tucky, 450 U.S. 288, 30S,

101 S.Ct. 1112, 1121, 67 L.Ed.2d 241, 254 (1981),

provides:

The failure to limit the jurors’ speculation on the

meaning of that silence, when the defendant

makes a timely request that a prophylactic in-

struction be given. exacts an impermissible toll

on the full and free exercise of the privilege. Ac-

cordingly. we hold that a state trial judge has

the constitutional obligation, upon proper re-

quest, to minimize the danger that the jury will

give evidentiary weight to a defendant's failure

to testify. (Emphasis added.)

The obligation to so instruct does not arise until a

proper request is made. We reject appellant's asser-

Vol 55—No. 2

tion that a trial judge is obligated to give a cautionary

instruction on its own initiative. See also Cole v

State, 645 P.2d 1025 (Ok!.Cr. 1982).

Appellant further complains, citing Sandstrom v

Montana, 442 U.S. 510 99 S.Ct. 2450, 61 L.Ed.2d

39 (1979), that the court's instruction on Murder in

the First Degree improperly shifted the burden of

proof to appellant to prove that he did not have a

deliberate intention to effect the homicide. The por-

tion appellant finds offensive provides: “It will be

sufficient proof of such deliberate intention if the cir-

cumstances attending the homicide and the conduct

of the accused convince you beyond a reasonable

doubt of the existence of such deliberate intention

at the time of the homicide.” Sandstrom concerns

only presumptions concerning an element of the

cnme which are mandatory, or shifts the burden to

defendant to disprove the element. /d. at 524, 99

S.Ct. at 2459, 61 L.Ed.2d at 51. The portion of the

instruciton which appellant complains of is neither.

Rather, it instructs the jury that they may discern

a deliberate intent from circumstantial evidence. This

was proper under Oklahoma law. McFarland v.

State, 648 P.2d 1248 (Okl.Cr. 1982).

This Court has previously held that in certain in-

stances it is proper for the trial judge to instruct the

jury that it should view identification testimony with

cauion. Melot v. State, 375 P.2d 343 (Okl.Cr. 1962).

Appellant contends that the trial court erred in fail-

ing to so instruct his jury. However. he failed to re-

quest such an instruction, and thereby waived any

error i: this regard. Luckey v. State, 529 P.2d 994

(OkI.Cr.1974).

In a capital case, this Court will carefully review

the record and consider all matters presented which

are supported by the record. Hathcox v. State, 94

Okl.Cr. 110, 230 P.2d 927 (1951); Parish v. State,

77 Okl.Cr. 436, 142 P 2d 642 (1943). Appellant re-

quested at the beginning of the trial that all witnesses

be sequestered. See 12 O.S.1981. §2615. Appellant's

mother remained in the courtroom during all of the

proceedings. Defense counsel attempted to cali her

as a witness during the sentencing stage, but, the trial

judge refused to permit her to testify. Appellant

asserts that this was an abuse of discretion.

We are unable to discern from the record what

testimony in mitigation appellant's mother would

have presented. The exclusion of evidence is not

ground for error unless a party makes a record of

the proposed evidence or the proposed evidence is

obvious from the context. 12 O.S.1981, §2104(A)(2).

The Oklahoma Bar Journal

Appellant's mother ana father testified prior to tor-

mal sentencing that appellant had been committed

to hospitals on several occasions for treatment of his

emotional problems. Each occasion had been

precipitated by drug abuse, according to her

statements. Assuming that this is the same evidence

the mother would have given in mitigation, there

was no harm resulting to appellant. There was no

claimed defense of insanity or drug intoxication. The

hospitalization she described occurred four or five

years prior to the alleged crime. This evidence was

inconsequential to the defense of duress.

As appellant's tinal assignment of error, he asserts

that he should have received a preliminary hearing

on the aggravating circumstances the State intend-

ed to prove. We have previous y denied such a re-

quirement, and do likewise here. See Stafford v.

State, 665 P.2d 1205 (Okl.Cr.1983); Johnson v.

State, 650 P.2d 54 (Okl.Cr. * 982).

On review ot i> record, w2 tind that the sentence

of death was not imposed uncer the influence ot pas-

sion, prejudice, or any vcher arbitrary factor. 21

O.S.1981, §701.13(C)(1). We also find that the

evidence supports the jury's finding that two ag-

gravating circumstances existed: that the appellant

knowingly created the risk of death to more than

one person: and, that there existed a probability that

the appellant would commit cnminal acts of violence

that would constitute a continuing threat to society.

21 O.S.1981, §701.12(2) & (7)

By appeiuant's statements to police otticers, he par-

ticipated in a murder in addition to the killing ot the

decedent herein, and the shooting ot the decedent's

mother. His statements also retiected that he was the

one who borrowed the gun tor the purpose ot com-

mitting robberies. His claim that he acted out of fear

ot his accomplice are contradicted by statements in

his confession that he never tried to get away from

Morgan. Rather, he continued his course of crime,

and even performed the task of dividing *he loot.

There was testimony from joseph James Seija,

another robbery victim of appellant and his ac-

complice, Morgan, that appellant told Morgan that

they should kill their victims. Morgan retused this

suggestion. This record sufficiently supports the

jury's findings.

We further find that the sentence is not excessive

nor disproportionate compared with the penalty im-

posed in similar cases, considering both the crime

and the defendant. 21 O.S.1981, §701.13(C)(3).

Comparison has been made with several prior deci-

sions in which the death sentence was attirmed. Co!

eman v State, 608 I’ 2d 1120 (Ok! Cr 1983). Stat-

ford v. State. 665 P 2d 1205 (Ohi Cr 1983) Abe v

State. 663 1P.2d 1 (Ok! Cr 1983) Srnith v State 65°

P.2d 330 (OK) Cr.1983). Parks » State 051 P 2d oe

(Okl.Cr.1982): Jones v State o48 [2d 125)

(Okl.Cr.1982): Heys v State 6017 P2d 223

(Okl Cr.1980). and Chaney v State. 612 P 2d 269

(Ok! Cr 1980. those reversed or moditied Johnson

v. State,665 P.2d 815 (Ok! Cr. 1983) Hatch v State

662 P.2d 1377 (Okl.Cr 1983). Jones v State 660

P.2d 634 (Ok! Cr.1983)) Munn v State 05872 2d

482 (Okl.Cr 1983) Driskell » State 059 P 2d 343

(Okl Cr.1983): Boutwell v State. 689 P.2d 322

(Ok! Cr.1983): Odum wv State 051 P.2d 703

(Oki Cr. 1982). Brewer v State 050 P2d 54

(Ok! Cr 1982): Hall v State 650 P 2d &93

(Okl Cr.1982). Burrows v State 640 I. 2c 533

(Okl.Cr.1982): Franks v State 636 P 2d 30)

(Oki. Cr.1981) Irvin State. 617 P.2d 588

(Ok! Cr.1980). and in particular. to those involving

murder in the course of robbery Johnson v State

665 I’ 2d 815 (Okl Cr. 1983) Ake v State 003 P 24

1. (Okl.Cr 1983) Smith v State. 659 P.2d 330

(Okl.Cr. 1980). and Hays v State 617 P 2d°223

(Ok! Cr.1980

The judgment and

AFFIRMED

sentence ot death is

Appeal from Distnct Court Oklahoma County

Harold C. Theus. Dist. Judge

LONNIE JOE DUTTON. appellant was con-

victed of Murder in the First Degree in Oklahoma

County. Case No. CRF-79-105 The jury imposed

the death penalty from which his appea! was lodg-

ed to this Court. Judgment and sentence AFFIRMED

James W. Berry James W. “Bill Berry &

Associates. Oklahoma City. attorney for appellant

Michael C. Turpen. Atty Gen. Tomilou Gentry

Liddell. Asst. Atty Gen Oklahoma City. attorneys

for appellee

BUSSEY. P.J

BRETT, J.. concur

1 378US 368 84S Ct 1774 12L Ed 2d 908 (1904

HOLSTON DON HARKALL. Appellant, v.

THE STATE OF OKLAHOMA. Appellee

No F-82-471. January 10. 1984

CORNISH | Houston Don Harrall was convicted

by a l’avne County jury ot Rape in the First Degree.

Atter Former Conviction of a Felony. and was

sentenced to eighteen (18) years in prison. On ap-

peal he presents six propositions of error. We affirm

As his tirst proposition ot error, appellant con-

tends that the uncorroborated testimony of the pros-

ecutrix was improbable unreliable contradictory,

and impeached and hence insufticient to support the

verdict

In summary. the prosecutrix testified that she was

abducted by appellant at knite point in the early

morning hours ot September 12, 1981, as she used

2 telephone booth across the street from her

Stillwater residence. He torced her to drive to a dirt

road outside of town, where he ordered her to

disrobe and raped her He then drove her around

the countryside tor an hour and a half as he

pondered what to do with her. After repeated vows

ot silence by the victim. the appellant decided to

return her to Stillwater and release her. En route

back to town. the appellant expressed remorse. arid

insisted that the victim accept two twenty dollar bills

tor her trouble. When she reached safety. the pros-

ecutrix called her boytriend. who in turn summond-

ed the police. The victim turned over her clothes and

the money to the investigators.

The detense claimec hat the prosecutnx consented

to intercourse. The a »pellant testified that the com-

plaining witness tlagged him down from the phone

booth. and agreed to engage in an act of prostitu-

tion. On appeal. the appellant challenges the suffi-

cency ot the prosecutrix s testimony, relying upon

the color and manner ot her dress: the assortment

of articles taken by her to the phone booth: her

taliure to seize opportunities tor escape; her often

lengthy conversations with the rapist during the

ordeal, and her acceptance of the money. However,

the prosecutrix offered plausible explanations for

these and other features of the case emphasized by

the detense. and we conclude that a jury question

was presented '

Betore the uncorroborated testimony of the com-

plaining witness will be found insufficient, it must

Vol. 55—No. 2

APPENDIX B

Order of the Oklahoma

Court of Criminal Appeals

Denying Petition for Rehearing

-VS-

“wer

“Aa

REHE

FOR

DrTIT TAY

oe Se Se aS hy

”

IN THE

WR TL

SUPREME COURT OF THE UN.:.TED STATES

APRIL TERM, 1984

LONNIE JOE DUTTON, Petitioner

STATE OF OKLAHOMA, Respondent

“ERTIORARI T THE OKLAHOMA COURT

ae Tu Ta? ® nor A e

VP 26% VS, APFoPMS

EW R y EF APPE ARANCF

James W. Berry, a du ia

1 r ira

espectfully submitted,

JAMES W. BILL BERRY & AS

Phe

BY: GEL, at mT

JAMES W. BERRY »

“

COUNSEL FOR PETITIONER

IN THE SUPREME COURT OF THE UNITED STATES | : ue C3

LONNIE JOE DUTTON, Petitioner

Vv.

THE STATE OF OKLAHOMA, Respondent.

ON WRIT OF CERTIORARI TO THE OKLAHOMA COURT OF

CRIMINAL APPEALS

confined in a penal institution and is unable to pay

and costs associated with seeking review of this

The factual grounds for this Motion are further

in the Affidavit of the Petitioner filed herewith.

For the reasons stated, the Petitioner requests that this

Respectfully supmitted,

JAMES ye BILL BERRY & ASSOCIATES

) \

SAMES W. BERRY

BY:

COUNSEL FOR PETITIONER

LONNIE JO

vs.

STATE OF OKLAHOMA,

I am Peti

my motion

Or give s

I am unab

security

grounds o

Court of

prosecuti

IN THE SUPREME COURT OF THE UNITED STATES

RECEIVED

83-6500 MAR 2° 198,

Orie U> THE Ci ERK

ST halal g tr:

rp,

E DUTTON,

Petitioner,

—— i

—~

Respondent.

AFFADAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS

I, LONNIE JOE DUTTON, being first duly sworn, state that

tioner in the above entitled case; that in support of

to proceed without being recuired to pay fees, costs,

ecurity therefore, I state that because of my poverty

le to pay the costs of said proceecing or to give

therefore; that I believe I am entitled to recress.

I was previously granted leave to proceec without costs, on

£ poverty, during proceecings on this case in the Oklahoma

Criminal Appeals

I further swear that the responses which I have made to

ions below relating to my ability to pay the costs of

ng the appeal are true:

custody of the Oklahoma Department of

Corrections, serving the sentence for

which I am petitioning the Court for

review. I have been imprisoned

since Sone 7 {4a9 .

2. Have you received within the past

twelve months any income from a business,

profession or other form of

self-employment, or in the form of rent

payments, interest dividends, or other

sources?

Answer: No.

Savings accou

Answer:

currently con

bonds, notes,

valuable pror

relationship

Answer:

A UNncerstand

"10c¢ + - +r an a

questions in this Affi

ners rt

rpeliJjuly.

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~esiAlsogn VUE Uh wane

raAtriIem Ar pI Tmenrpr

wVWYUsvia 2 risl sso Oc_enr’

euoscripecdc an

O72 /

Mer Camm i ; wv :

my COmmlission expires:

Do you own

None.

m y

m’, Set:

of c

aii ~

hat a

avit wv

who

and

are de

state

rsons.

e state

stox

her

sifiatl

pende

your

ment

subject me to penalties for

a oe et LO

rTraere AS nrine :

wie wi 2 JUL WUlas

before me on this day

f ~_ a

£0 Aa ‘ td 1S t¢e

Notary Public

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.