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Karl Lee MYERS

 
 
 
 
 

 

 

 

 


A.K.A.: "Killer Karl"
 
Classification: Murderer
Characteristics: Serial rapist
Number of victims: 2 +
Date of murders: April 16, 1993 / March 14, 1996
Date of birth: March, 29 1948
Victims profile: Shawn Marie Williams / Cindy Marzano
Method of murder: Shooting / Strangulation
Location: Rogers County, Oklahoma, USA
Status: Sentenced to death in Oklahoma on May 19, 1998 and March 7, 2000
 
 
 
 
 
 
SEX: M   RACE: W   TYPE: N   MOTIVE: Sex./CE

DATE(S): 1976-96

VENUE: Kans./Okla.

VICTIMS: Five suspected

MO: Rape-slayer of women; self-described contract killer

DISPOSITION: Condemned on one count, 1998.

Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans

 
 

MYERS v. STATE
2006 OK CR 12

133 P.3d 312
Case Number: D-2000-271
Decided: 04/04/2006

KARL LEE MYERS, Appellant -vs- STATE OF OKLAHOMA, Appellee

Cite as: 2006 OK CR 12, 133 P.3d 312

O P I N I O N

 C. JOHNSON, JUDGE:

¶1 Appellant, Karl Lee Myers, was tried in Rogers County District Court, Case No. CF 96-233, for First Degree Murder, with malice aforethought, and/or in the alternative, First Degree Murder, while in the commission of a felony based upon the underlying felony of rape by force or fear, in violation of 21 O.S.1991, § 701.7(A) or § 701.7(B).1 Jury trial was held before the Honorable Dynda Post, District Judge, on January 25, 2000 through February 16, 2000. The jury found Appellant guilty of First Degree Murder while in the commission of a felony. The jury also found the existence of four (4) aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel; (2) the Defendant was previously convicted of a felony involving the use or threat of violence; (3) the existence of a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society; and, (4) the murder was committed for the purpose of avoiding arrest or preventing a lawful arrest or prosecution. The jury set punishment at death. The trial court imposed Judgment and Sentence on March 7, 2000, in accordance with the jury’s verdict. Thereafter, Myers perfected this appeal.2

¶2 On April 16, 1993, Shawn Williams’s body was discovered at Rocky Point on the Port of Catoosa. Forensic examination of her body showed five gunshot wounds; a fatal gunshot wound to her chest ruptured her aorta and caused her death. Williams had other injuries, including abrasions to her chest and abdomen, a laceration on the back of her head, contusion and laceration to her left ear, abrasions to her knees, to her right hip and to her left buttocks. The laceration to the back of her head was consistent with falling and striking her head on the ground; the contusion over her left ear was consistent with being struck by an object. Sperm found in Williams’s vagina suggested she was sexually assaulted before she died. DNA testing on the sperm linked Myers to the murder.3 Myers later confessed to the crime to an inmate in the county jail and also bragged about disposing of Williams’s body to another witness prior to his arrest. Other relevant facts will be discussed as necessary.

¶3 Myers raises twenty-one (21) propositions of error.

JURY SELECTION ISSUES

¶4 In Proposition Eleven, Myers claims the trial court abused its discretion by refusing to remove prospective juror "S" for cause. Myers claims prospective juror "S" would not consider life imprisonment as a punishment option.

¶5 The decision whether to disqualify a prospective juror for cause rests in the trial court’s sound discretion whose decision will not be disturbed unless an abuse of discretion is shown. Humphreys v. State, 1997 OK CR 59, ¶ 6, 947 P.2d 565, 570. A venireman who is willing to consider all sentencing options and who is not "irrevocably committed" to one sentence before trial has begun is fit to serve and not vulnerable to removal for cause. Humphreys, 1997 OK CR 59, ¶ 6, 947 P.2d at 571; Miller v. State, 1998 OK CR 59, ¶ 21, 977 P.2d 1099, 1106; Hain v. State, 1996 OK CR 26, ¶ 21, 919 P.2d 1130, 1138.

¶6 When initially questioned by the trial court, juror "S" stated he would have no difficulty considering all three possible penalties for first degree murder. When the prosecutor asked what he thought of life imprisonment as a punishment for murder, juror "S" replied, "[n]ot much," but then stated he thought he could give fair consideration to all three potential punishments. When questioned by defense counsel, juror "S" indicated he believed a life sentence "doesn’t mean a total life sentence," and he responded affirmatively to defense counsel’s question that in "his opinion" a life sentence was not really an appropriate punishment for murder. He said "it probably would" be difficult for him to consider life imprisonment as a punishment. He admitted it was "true" that he could not realistically give a complete, fair, open and honest consideration to a life sentence.

¶7 The prosecutor rehabilitated prospective juror "S" by asking if he could consider a life sentence under any circumstances, and the juror responded that he thought he "could but I am not in favor of a life sentence." He stated he would listen to the evidence and "would try" to give fair consideration to a life sentence. The trial court then asked juror "S" whether he would be able to consider life imprisonment as a punishment and he said, "yes."

¶8 At this point, defense counsel’s motion to remove the prospective juror for cause was denied. Counsel continued to question juror "S" and asked if he just answered that he could not give full consideration to a sentence of life imprisonment to someone who was convicted of first degree murder. The prospective juror responded "yes I did," and admitted that was his opinion. The trial court again denied a challenge for cause.

¶9 When this Court reviews the voir dire of potential jurors whose answers are unclear and who appear equivocal in their ability to consider all punishment options, we traditionally defer to the impressions of the trial court who can better assess whether a potential juror would be able to fulfill his or her oath. Douglas v. State, 1997 OK CR 79, ¶ 7, 951 P.2d 651, 659. The prospective juror said he would try to give fair consideration to all sentencing options, including a life sentence, and his admitted propensity to favor a sentence greater than life does not show he could not fairly consider the option. Gilbert v. State, 1997 OK CR 71, ¶¶ 27-29, 951 P.2d 98, 108-109. While we believe the question here is close, we cannot find the record shows the trial court abused its discretion by denying the motion to remove juror "S" for cause.

FIRST STAGE ISSUES

¶10 Myers argues in Proposition One that the trial court erred when it allowed Sydney Byrd to testify. Byrd was Myers’s cellmate while Myers was in the Rogers County Jail. Byrd claimed Myers confessed to him that he had raped and killed a woman.

¶11 Prior to trial the State gave notice of its intent to produce Byrd as a witness. Upon defense counsel’s request, Judge Post conducted an in camera hearing to determine whether Byrd’s statements were reliable and admissible. At the conclusion of this hearing, Judge Post concluded Byrd’s testimony was admissible. Defense counsel objected to the trial court’s finding that Byrd was a credible witness, and on appeal, Myers contends the trial court erred because the record establishes Byrd was unreliable and untrustworthy. Myers submits the prejudicial effect of his testimony outweighed any probative value it might have had.

¶12 In Dodd v. State, 2000 OK CR 2, 993 P.2d 778, we examined the problems relating to jailhouse informant testimony. Noting that jailhouse informants often expect and receive a benefit in exchange for their testimony and that such exchanges may motivate an informant to lie, we set forth a procedure for trial courts to follow when the State seeks to admit evidence through a jailhouse witness whose testimony is not specifically excluded by the United States Constitution.

At least ten days before trial, the state is required to disclose in discovery: (1) the complete criminal history of the informant; (2) any deal, promise, inducement, or benefit that the offering party has made or may make in the future to the informant (emphasis added); (3) the specific statements made by the defendant and the time, place, and manner of their disclosure; (4) all other cases in which the informant testified or offered statements against an individual but was not called, whether the statements were admitted in the case, and whether the informant received any deal, promise, inducement, or benefit in exchange for or subsequent to that testimony or statement; (5) whether at any time the informant recanted that testimony or statement, and if so, a transcript or copy of such recantation; and (6) any other information relevant to the informant’s credibility.

Dodd at ¶ 25, 993 P.2d at 784.

¶13 Here, Myers does not complain the mandatory Dodd procedures were not followed, but rather argues the trial court’s determination that the jailhouse snitch’s testimony was reliable and admissible was erroneous. Myers argues Byrd’s testimony at the reliability hearing shows he sought a "favor" from the State for his testimony, lied several times during the hearing, and admitted he had previously worked as a confidential informant in California although denied he received any benefit from that service.

¶14 Nothing in Dodd requires the trial court to exclude a jailhouse informant’s testimony because his or her testimony is inconsistent, unbelievable, or self-serving. The point of Dodd was to require more thorough examination of informant evidence and complete and full disclosure of information relating to an informant’s motivation to fabricate testimony. In this case, the trial court did not abuse its discretion by allowing the witness to testify. Any conflict or inconsistency in the witness’s testimony goes to the weight and credibility of that testimony and are issues properly addressed on cross-examination. See Gilson v. State, 2000 OK CR 14, ¶¶ 59-60, 8 P.3d 883, 906-907 (determination of competency of witnesses is left to the discretion of the trial judge; conflict and inconsistencies in testimony go to weight and credibility).

¶15 Next Myers claims the State used hearsay testimony to bolster Sydney Byrd’s testimony. After Byrd testified, the State, over defense objection, asked Larry Elkin whether the statement Byrd made to him in 1996 was consistent with Byrd’s testimony before the jury. Elkin testified it was.

¶16 Admission of evidence is left to the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Miller, 1998 OK CR 59, ¶ 49, 977 P.2d at 1110. Elkin’s testimony was admissible under 12 O.S.1991, § 2801(4)(a)(2). Two foundational requirements must be met before a statement is admissible under § 2801(4)(a)(2): First, there must be a suggestion that the witness has either fabricated his trial testimony or has been unduly influenced, and second, it must be established that the consistent statement was made prior to the time when there was a motive for the witness to lie or there was an exercise of improper influence. Delozier v. State, 1998 OK CR 76, ¶ 16, 991 P.2d 22, 27.

¶17 Myers concedes the first foundational requirement was met, but argues the second was not. We disagree. Elkins testified he interviewed Byrd in November 1996 while Byrd was in California. At that point, although Byrd had requested to serve out his time in Oklahoma, no one had honored that request. Accordingly, there was no exercise of improper influence or a motive for the witness to lie at that point. Delozier, 1998 OK CR 76, ¶ 20, 991 P.2d at 26. This case is distinguishable from United States v. Moreno, 94 F.3d 1453, 1455 (10th Cir.1996) as a codefendant’s motivation to lie upon arrest presents a completely different picture. Proposition Two does not warrant relief.

¶18 In Proposition Three, Myers argues Patricia Curry’s identification of him and her testimony concerning a conversation with him violated his right to due process guaranteed by the Fourteenth Amendment of the United States Constitution. Myers objected to Curry’s identification prior to trial and a hearing on the reliability and accuracy of her out of court identification was held prior to trial. At the conclusion of that hearing, the trial court ruled the preliminary threshold of admissibility was met and overruled the objection to her testimony. When defense counsel renewed his objection to Curry’s identification at trial, the trial court noted the prior ruling and stated the issue whether she properly identified Myers was a matter for the jury to decide. The issue of Curry’s identification was properly preserved for appellate review.

¶19 Myers argues on appeal that Curry’s identification of him was unreliable and was tainted by an impermissibly suggestive one man show up and a suggestive pretrial photographic lineup. Myers argues one man show-ups are generally condemned because they tend to suggest the person is guilty. Here, Myers compares the news broadcast showing his arrest at Rocky Point to a one man show-up. He also argues the photo lineup was unduly suggestive because he was the only man pictured who was wearing an orange, collarless shirt rather than street clothes.

¶20 Although we do not find the photo lineup was unduly suggestive or prejudicial or the circumstances of the news broadcast were unduly suggestive or that they rise to the level of a one man show-up, the same would not automatically invalidate Curry’s subsequent in-court identification if that identification can be established as independently reliable under the totality of the circumstances. Berry v. State, 1992 OK CR 41, ¶ 13, 834 P.2d 1002, 1005; Young v. State, 2000 OK CR 7, ¶ 31, 12 P.3d 20, 34. This Court utilizes a test which takes into consideration all the surrounding circumstances plus the following:

1) prior opportunity of the witness to observe the defendant during the alleged criminal act;
2) degree of attention of the witness;
3) accuracy of the witness’ prior identification;
4) the witness’ level of certainty; and,
5) the time between the crime and the confrontation.

Young, id.; see also Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L.Ed. 2d 401 (1972); Stiles v. State, 1992 OK CR 23, ¶ 41, 829 P.2d 984, 993.

¶21 At trial, Patricia Curry, who owned and operated a flower shop in Bristow, Oklahoma in 1996, identified Myers as a man who came into her shop early one Saturday morning in July 1996. He told her he had been out drinking all night and wanted to purchase two roses for his wife. Curry said he knew he was "in trouble." When she suggested he should be careful "because when you slip out the front door someone might be slipping in the back door," he responded, "I will kill the bitch if anything like that would happen." When referring to his wife, he said he would "kill the bitch and she was a whore and a slut and that he knew how to dispose of women."

¶22 He went on to tell Curry he needed back in his house; had been drunk all night; had gone to Wellston and picked up a hitchhiker, and that is how he got to Bristow. Myers asked her if she had ever heard of Rocky Point and told her you could dispose of women there. She responded that she had heard of Rocky Point and that it would be hard to dispose of her because she felt threatened. Curry testified she in fact felt threatened by his presence with her alone in the shop. He also asked if she had heard of the woman that was missing and stated that the "investigators had their heads so far up their ass they could never find anybody there and they didn’t know what they were doing." Curry testified at that point she felt her life was in jeopardy.

¶23 When she finished preparing his roses, Myers gave her a one hundred dollar ($100.00) bill. She did not keep change for a large bill in her cash drawer, and she testified her conscience told her not to turn her back on Myers to walk to the back to obtain change. She handed the bill back to him and told him he could have the flowers and to pass on the kindness. She said Myers told her to go to the back for change, and she again refused. Myers took the flowers and walked out the door. She locked the door when he left and watched him drive away. Curry testified she locked the door because she felt threatened. She then called her husband.

¶24 Three weeks later, Curry saw the same man on a television news broadcast about an arrest at "Rocky Point." After the news broadcast, she called the Rogers County Sheriff’s Department. Curry later wrote out a statement and picked Myers out of a photographic lineup. When questioned about her identification of him from the photographic lineup, Curry stated she did not pick him out because of what he was wearing; she said the orange shirt was "irrelevant…I didn’t even think of it. I wasn’t looking at his clothes, sir, I was looking at him."

¶25 Curry said the man stood right in front of her at the flower shop. He was in the shop alone with her for twenty or thirty minutes and she had a good opportunity to look at his face. He wore a snap up western shirt, "somewhat like what he has on today." He wore a welder’s cap, gold chain, jeans and boots. His shirt was unbuttoned. Curry said she had no doubt that the man in her shop that day was Myers.

¶26 Curry’s testimony at trial was certain and showed her degree of attention towards the man in the flower shop was focused. She stood directly in front of Myers for twenty or thirty minutes and during that time was afraid to "turn her back" on him because she was fearful of him. Her testimony concerning her conversation with him in the flower shop was obviously relevant to show why she was so focused on him and why she was subsequently able to identify him. Her identification was sufficiently independently reliable to be admissible. The trial court did not abuse its discretion by allowing into evidence Curry’s in-court identification of Myers. Bryson v. State, 1985 OK CR 107, ¶¶ 12-15, 711 P.2d 932, 934-935. Proposition Three is denied. ¶27 In Proposition Four, Myers argues the trial court erred when it allowed Detective Larry Elkin to testify that Patricia Curry picked him out of a photographic lineup. Myers submits Elkin’s testimony concerning Curry’s identification amounted to improper bolstering and the error was not harmless under the circumstances of this case. Before Elkins testified concerning the photo-lineup, defense counsel said "I would also object if Mr. Haynes is going to ask Mr. Elkin whether or not this Ms. Curry identified a particular photograph because it’s improper bolstering. No, strike that. I don’t object to that." (emphasis added) Defense counsel’s objection was on "reliability grounds" of the identification in general. Although defense counsel objected immediately following Elkins’ testimony concerning which photograph Curry identified, the objection, based upon the preceding testimony, went to the general reliability of the identification, not to improper bolstering. When a specific objection is made a trial, this Court will not entertain a different objection on appeal. Pickens v. State, 2001 OK CR 3, ¶ 31, 19 P.3d 866, 878. Our review of this claim is for plain error. Wilson v. State, 1998 OK CR 73, ¶ 64, 983 P.2d 448, 464.

¶28 Testimony by a third party that an extra-judicial identification was made or that a particular person was identified is error. Kamees v. State, 1991 OK CR 91, ¶ 13, 815 P.2d 1204, 1207. However, this improper testimony does not necessitate reversal; when it follows an in-court identification of the accused by the identifier, the error may be found harmless. Id., 815 P.2d at 1208; see also Allen v. State, 1989 OK CR 79, ¶ 14, 783 P.2d 494, 498 and cases cited therein.

¶29 In this case, Larry Elkins testified immediately after Patricia Curry testified and identified Myers. Elkins testified that Curry picked out Number Four from the photo-lineup. Myers’s photograph was Number Four. As discussed in Proposition Three, Curry’s identification of Myers was sufficiently reliable to be admissible. Further, we find it was certain, based upon her focused attention and unique circumstances of her contact with Myers, and any error in the admission of Elkins’s testimony concerning Curry’s identification of Myers from the photo lineup was cumulative and harmless beyond a reasonable doubt. See Ochoa v. State, 1998 OK CR 41, ¶ 34, 963 P.2d 583, 597; Trim v. State, 1991 OK CR 37, ¶ 8, 808 P.2d 697, 699.

¶30 In Proposition Five, Myers argues the trial court violated his right to present evidence in his own defense and his right to due process by restricting defense counsel from asking a witness whether Myers had a speech impediment and from establishing Sydney Byrd could have learned about Myers’s crime from a source other than Myers. In both instances, defense counsel objected to the trial court’s rulings and the alleged errors are properly preserved for review. Both objections involve defense witness Charles Maybe, an investigator for the Oklahoma Indigent Defense System who worked on Myers’s case.

¶31 During cross-examination of Patricia Curry, defense counsel asked Curry if the man who came into her flower shop had a speech impediment, and she answered, "no." After the State rested its case, defense counsel asked Maybe, "[i]n your opinion, does Mr. Myers have a speech impediment?" The State objected on grounds of relevancy and competency of the witness to give his opinion. The trial court sustained the objection, presumably on the ground that it would violate Myers’s Fifth Amendment rights. As an offer of proof, defense counsel noted Maybe’s answer would be "yes."

¶32 Despite Myers’s arguments to the contrary, the State did not ask any first stage witnesses their opinions of his speech. As Myers has presented the trial court’s ruling in regard to Maybe as erroneous and as affecting his ability to impeach Curry’s identification of him, what the State asked its witnesses during second stage concerning any speech impediment is irrelevant. Even so, we find nothing improper about the question posed to Maybe and allowing Maybe to answer would not have impinged upon Myers’s right to remain silent. The answer Mabye would have given was relevant defense evidence relating to Curry’s "description" of the man she later identified as Myers. The trial court erred by sustaining the State’s objection and by restricting counsel from asking Maybe about Myers’s speech impediment.

¶33 Although the trial court erred, no relief is required. A conviction should not be set aside for insubstantial errors. A defendant is entitled to a fair trial, not a perfect one. See Douglas, 1997 OK CR 79, ¶ 45, 951 P.2d at 667. In the case of an evidentiary error, the proper inquiry is whether this Court has "grave doubts" that the outcome of the trial would have been materially affected had the error not occurred. Id.

¶34 Even if the jury heard Maybe’s opinion that Myers had a speech impediment, that testimony would only have been relevant in the jury’s consideration of the reliability of Curry’s identification of Myers as the man in her flower shop. So many other factors supported the reliability of her identification, we doubt a swearing match between Curry and a defense investigator concerning a speech impediment would have had much affect on the jury’s consideration of her identification or on the jury’s verdict.

¶35 Myers also argues the trial court erred when it prevented defense counsel from questioning Maybe about who testified at the preliminary hearing and what might have been covered by the press during that time. The trial court sustained the State’s objection to the line of questioning on relevancy grounds. As an offer of proof, defense counsel argued that who testified at the preliminary hearing and what the press covered was relevant because Sydney Byrd was "in the Rogers County area" during the time and could have used the press accounts to fabricate his testimony.

¶36 The trial court’s decision to limit the defense in this area was not an abuse of discretion. Byrd testified he had not seen any news articles or heard any television reports concerning Myers. That in fact there might have been newspaper articles published or television news reports made during the three weeks prior to November 4, 1996, when Byrd was in the Rogers County area does not establish that in fact Byrd saw those articles and/or reports. Even if Maybe had testified that there were news articles and/or television reports, such testimony would not establish that Byrd saw them. The trial court ruled the question was not relevant and was "too speculative." We agree, and find no error occurred. 12 O.S.1991, § 2701.

¶37 In Proposition Six, Myers argues the rulings of the trial court that allowed the State to improperly bolster one expert with another and prevented Myers from confronting and fully cross-examining witnesses violated his right of confrontation, right to due process and his right to a fair trial. Myers objected that testimony from the State’s expert witness in the area of DNA analysis (Eisenberg) was cumulative, amounted to improper bolstering and was not relevant. The trial court overruled the objection, noting that the defense had attacked the credibility and certification of the State’s DNA lab, and that the State was entitled to put on evidence to support the qualifications of the lab.

¶38 The jury heard Eisenberg’s testimony immediately after OSBI criminalist Mary Long testified that the OSBI DNA unit had completed its validation process, was still involved in the accreditation process with the American Society Crime Lab Directors, and had received blood stains to test in relation to Shawn Marie Williams.4 Eisenberg worked as a consultant to the OSBI lab for a number of years and worked with Long during that time. Eisenberg stated the methodologies the lab utilized were the standard methodologies used by virtually every laboratory in the country using the RFLP method of analysis. He testified the OSBI lab completed all of its validation work, and he remained as a consultant with the lab until 1997, reviewing ongoing case work, testifying in cases, and conducting ongoing audits of the laboratory. Eisenberg said the American Society Crime Lab Directors was one of only two laboratories involved in the accreditation of DNA forensic laboratories. He stated the accreditation process is extremely lengthy and expensive and "probably less than half of all the forensic laboratories are accredited by the ASCLD lab." Eisenberg stated that, in his opinion, nothing would prohibit the DNA portion of the OSBI lab from being accredited. Dr. Eisenberg testified extensively about the processes and methods of DNA analysis. He reviewed a DNA consultant case review – a report of the analysis of DNA evidence received from Appellant and Shawn Marie Williams by the OSBI lab.

¶39 The decision whether to allow an expert witness to testify rests within the discretion of the trial court and its decision will not be reversed absent an abuse of discretion. Barnhart v. State, 1977 OK CR 18, ¶ 20, 559 P.2d 451, 458. Here, the defense attacked the DNA test results, the accreditation of the lab, and the qualifications of chemist Long to perform the tests. Eisenberg’s expert testimony regarding the testing procedures utilized by the lab, his knowledge of the accreditation process, and the qualifications of the lab and Long’s qualifications to perform the tests was relevant and helpful to the trier of fact in its understanding of the DNA evidence presented by the State. The trial court did not abuse its discretion by allowing Eisenberg to testify.5

¶40 Myers also argues the trial court precluded him from effectively cross-examining Eisenberg by sustaining State’s objections to many of defense counsel’s questions. Title 12 O.S.1991, § 2611(C) provides that cross-examination shall be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The extent of cross-examination rests in the discretion of the trial court and reversal is only warranted where there is an abuse of discretion resulting in prejudice to the defendant. Parker v. State, 1996 OK CR 19, ¶ 13, 917 P.2d 980, 984.

¶41 Here, the trial court properly sustained numerous State’s objections to questions which called for speculative answers, questions which were previously asked and answered, questions which were improper impeachment attempts, and questions which were argumentative. In some instances following a State’s objection, counsel rephrased. Defense counsel conducted a thorough and extensive cross-examination of Eisenberg. We find no obvious and prejudicial limitation by the trial court of the scope of cross-examination in this case. Reeves v. State, 1991 OK CR 101, ¶ 30, 818 P.2d 495, 501.

¶42 In Proposition Seven, Myers claims his statutory rights were violated when the State elicited improper opinion testimony from the medical examiner, Dr. Ronald Distefano. Dr. Distefano testified Williams’s injuries were consistent with a forcible sexual assault and that she "was the victim of a homicide that a rape was probably also a part of …" Defense counsel objected to this testimony as invading the province of the jury and moved for a mistrial. Counsel’s objections were overruled and the motion for mistrial denied.

¶43 Under 12 O.S.1991, § 2702, expert opinion testimony should be admitted when it will "assist the trier of fact to understand the evidence or to determine a fact in issue…." Section 2403 provides for the exclusion of relevant evidence if its probative value "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise." Testimony from an expert in the form of an opinion or inference is not objectionable simply because it embraces an ultimate issue to be decided by the jury. 12 O.S.1991, § 2704; Johnson v. State, 2004 OK CR 25, ¶ 16, 95 P.3d 1099, 1104. Even though expert testimony may be given on an "ultimate issue," when read together Sections 2701, 2702, and 2403 should work together to bar admission of an opinion which merely tells the jury what result to reach. Hooks v. State, 1993 OK CR 41, ¶ 13, 862 P.2d 1273, 1278.

¶44 The State’s evidence of rape was entirely circumstantial. Williams was missing for several days before her body was found. Her shorts were on backwards and her body bore signs of a struggle and signs of being dragged. Although gunshot wounds caused her death, the above circumstances, combined with seminal fluid found in her vagina, led the medical examiner to conclude she was likely involved in a sexual assault or raped prior to her death. To determine the cause and manner of death, Dr. Distefano testified he not only considers the results of autopsy and physical examination, but also considers information and other evidence obtained by his investigators. Dr. Distefano testified he believed his findings upon examination were consistent with a sexual assault/rape based "on really all of the circumstances" that he knew about the case.

¶45 Dr. Distefano’s testimony did not tell the jury what conclusion to reach. His testimony came with the caveat that it was his opinion based upon the circumstances. It was relevant to assist the jury in reaching a conclusion. 12 O.S.1991, §§ 2701, 2702. Further, defense counsel thoroughly cross-examined Dr. Distefano on his opinion that she was "probably raped." Through cross-examination, counsel established there was no physical evidence of forcible sexual intercourse, no vaginal injuries; the only physical evidence of intercourse was that sperm was deposited in her vagina within twenty-four hours of her death. Although Dr. Distefano opined that Williams was raped, the jury clearly could reach its own conclusion on this issue. The trial court did not err by allowing the medical examiner to testify to his opinion that Shawn Williams was raped and no error occurred which warrants relief.

OTHER CRIMES EVIDENCE

Evidence of other crimes, wrongs or bad acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

12 O.S.1991, § 2404(B); Burks v. State, 1979 OK CR 10, ¶ 2, 594 P.2d 771, 772, overruled in part on other grounds in Jones v. State, 1989 OK CR 7, ¶ 8, 772 P.2d 933, 936. These exceptions to the admission of other crimes evidence are not exclusive. Myers I, 2000 OK CR 25, ¶ 24, 17 P.3d at 1030. However, even other crimes evidence which is admissible under a specified exception must display probative value sufficient to outweigh any prejudicial effect. Burks, 1979 OK CR 10, ¶ 8, 594 P.2d at 773.

¶46 The State initially charged Myers with two counts of first degree Murder; the counts were severed, and the State proceeded against him first for the murder of Cindy Marzano. Prior to severance, the State provided Myers with notice that it intended to offer evidence of other crimes at trial. These notices showed the State’s intent to not only introduce evidence of Myers’s murder of Marzano, but also of his conversation with Patricia Curry, his prior assaults against Bonnie Makin Hames and Stacey Lane Fain, and the murder of Chink Elders for which he was never prosecuted. Prior to Myers’s trial, the trial court heard arguments on his Motion in Limine, and sustained the motion in part, specifically as it related to mention of the Marzano murder, and Myers’s prior assaults of Hames and Fain. In Proposition Eight, Myers claims the trial court erred by allowing the State to introduce evidence of other crimes and by refusing to grant a mistrial when references to other crimes were made in violation of the court’s ruling in the first stage of trial.

¶47 The trial court cautioned Sydney Byrd prior to his testimony that he should not make any statements indicating Myers killed more than one woman. However, during redirect examination, the prosecutor asked Byrd whether anyone else in the jail cell might have overheard Myers talking to him because of the level of their voices. Byrd responded, "Oh well, absolutely. He was telling me about raping and murdering these women, yeah. You get excited." Defense counsel objected and moved for a mistrial; the motion for mistrial was denied. The parties agreed the trial court would instruct the jury to "disregard the last question and answer of counsel and not consider it in your deliberations or in any other aspect."

¶48 Before the next witness (Patricia Curry) testified, defense counsel asked the trial court to prohibit her from testifying that Myers told her "you can get rid of women there." The trial court refused, stating it would be improper for her to "rewrite the words she is quoting as having been uttered by the defendant…" Thereafter, Curry testified Myers told her "he knew how to dispose of women," and when talking about Rocky Point said "you could dispose of women there."

¶49 Myers argues there was no reason for the trial court to allow Curry to reference plural "women" when previously finding Byrd should not. However, we see a clear difference – a difference noted by the trial court. Byrd’s objectionable testimony was an outburst and the words he spoke were his own. Curry was quoting Myers and she specifically testified about what he said to her. We find no error in the manner which the trial court handled the objections to these two witnesses’ references to plural victims. See Al-Mosawi v. State, 1996 OK CR 59, ¶ 59, 929 P.2d 270, 284 (a trial court’s admonition to jury to disregard the remarks of counsel or of a witness usually cures any error unless it is of such a nature, after considering the evidence, that the error appears to have determined the verdict). Further, Myers has not shown Byrd’s statement was verdict determinative.

¶50 Myers also argues Curry’s testimony was in violation of the trial court’s ruling limiting her testimony. The trial court ruled it would admonish Curry not to "address specifically the disposition of women’s bodies and how easy it was to dispose of them in sandy soil in Texas or east Texas." The trial court indicated it wanted to preclude her discussion of the disposal of "bodies in east Texas," but the trial court also acknowledged "the central relevance of her testimony has to do with the body of a woman at Rocky Point and the Rocky Point name. … and I think the State is entitled to get that in." We find Curry’s testimony that Myers said he "knew how to dispose of women" did not violate the trial court’s ruling in limine. Curry’s testimony about what Myers said directly related to the crime in question and was an admission by Myers directly relating to the crime in question. See Myers I, 2000 OK CR 25, ¶ 27, 17 P.3d at 1030.

¶51 Myers also argues Curry’s testimony that she felt threatened by Myers, felt her life was in jeopardy, and that she locked the door after he left was inadmissible evidence of other crimes. This testimony was relevant to show the witness’s state of mind and it helped explain to the jury why Curry was able to identify Myers several weeks later. This testimony was properly admitted and was not evidence of other crimes. 12 O.S.1991, § 2402.

¶52 Next, Myers complains chemist Mary Long injected other crimes evidence when she responded to a prosecutor’s question and mentioned the name Mark Marzano. The prosecutor asked her how two envelopes were labeled. She responded, "These two envelopes are labeled T98 Karl Myers. And the second one is labeled T108 Mark Marzano." Defense counsel objected and moved for a mistrial. The trial court sustained the objection, cautioned Long not to mention the name Marzano, and denied the motion for mistrial. The trial court and the parties agreed an admonishment would draw further attention to the matter and no admonishment was given. Myers submits Long’s mention of the name Marzano could have triggered certain jurors to remember details they might have read or heard concerning the Marzano trial.

¶53 We are not persuaded that the mere mention of the name Marzano was the equivalent of the admission of other crimes evidence. Myers’s argument is purely speculative and we find the trial court’s decision to caution the witness to avoid reference to the name a completely appropriate curative action and no further relief is required.

¶54 Lastly, Myers complains the prosecutor improperly referenced other crimes during opening statements and during closing argument. During opening statements, one prosecutor said, "we anticipate a witness will come in and testify that the defendant has made comments to her about disposal of bodies at this Rocky Point area." During closing argument, the prosecutor referred to Curry’s testimony that Myers said "you could get rid of women there" and argued the "veil of innocence" had been lifted. No objection was made to the prosecutors’ statements and our review is for plain error. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 695.

¶55 We find no plain error. Opening statements are intended to show the jury what evidence the parties intend to present and what the parties expect the evidence to prove, and to prepare jurors’ minds for the evidence that will be presented. Malicoat v. State, 2000 OK CR 1, ¶ 10, 992 P.2d 383, 394-395. The prosecutor’s reference in opening statement about what he anticipated a witness would testify to was proper comment. We address the veil of innocence argument more fully below.

PROSECUTORIAL MISCONDUCT

¶56 In Proposition Nine, Myers claims prosecutorial misconduct deprived him of a fair trial. During voir dire, the trial court overruled defense counsel’s objections to the prosecutor’s questions to prospective jurors to look at the jury instructions to see if the instruction on the State’s burden of proof used the language "beyond all doubt," "a shadow of a doubt," "all doubt," or "any doubt." Myers argues this Court has repeatedly criticized prosecutors’ attempts to define reasonable doubt and submits the trial court committed reversible error by failing to sustain the objections.

¶57 Here, the prosecutor’s use of the phrases "beyond all doubt," "a shadow of a doubt," "all doubt," or "any doubt" when emphasizing the jury should closely examine and consider the language of the jury instructions was not the equivalent of improperly defining reasonable doubt. It is not error for a prosecutor to tell jurors to focus on the language of the jury instructions. In this case, the prosecutor wanted the jury to consider what language the instructions did not contain in an attempt to dispel commonly held attitudes concerning the definition of reasonable doubt. Hammon v. State, 1995 OK CR 33, ¶ 83, 898 P.2d 1287, 1305.

¶58 Myers claims error occurred when the prosecutor argued "that veil of innocence has been removed from Karl Myers, that he sits there now as a guilty man …" Counsel did not object and we review this claim for plain error. Simpson, 1994 OK CR 40, 876 P.2d at 695.

¶59 It is error for a prosecutor to argue that the "cloak" of innocence has been stripped from a defendant. See Miller v. State, 1992 OK CR 77, ¶¶ 4-5, 843 P.2d 389, 390; Hamilton v. State, 1997 OK CR 14, ¶ 34, 937 P.2d 1001, 1010. We see no significant difference in the words cloak and "veil" as used in this case. However here, as in Hamilton, in light of the overwhelming evidence of guilt in this case, any error in the prosecutor’s argument was harmless beyond a reasonable doubt. Hamilton, id.; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

¶60 Last, Myers complains that the prosecutor improperly commented upon his failure to independently test the DNA evidence and such comments unconstitutionally shifted the burden of proof by misleading the jury into believing Myers was required to come forward with evidence. Defense counsel objected only once and the objection was sustained. The jury was not admonished. No objection was made to the prosecutor’s closing argument on this subject.

¶61 It is not improper for a prosecutor to comment on State’s evidence which is uncontroverted. Robinson v. State, 1995 OK CR 25, ¶¶ 21-22, 900 P.2d 389, 398. At trial, Myers contested the State’s handling and reliability of the DNA evidence throughout the trial. It was fair comment for the State to indicate and show Myers had access to the same samples and did not have them tested to contradict the reliability of the State’s DNA testing results. Cf. Pickens v. State, 2001 OK CR 3, ¶ 39, 19 P.3d 866, 880 (comments on the defendant’s access to evidence and witnesses is permissible).

¶62 Allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect of the conduct deprived the defendant of a fair trial. Washington v. State, 1999 OK CR 22, ¶ 41, 989 P.2d 960, 974. Having reviewed each of the instances of alleged misconduct, we find only one amounts to misconduct and it does not warrant relief. Accordingly, this proposition of error is denied.

JURY INSTRUCTIONS

¶63 Myers claims in Proposition Ten that at the conclusion of the first stage of trial, the trial court erred when it administered Jury Instruction No. 2 (OUJI-CR 2d. 10-2) which states:

It is your responsibility as jurors to determine the facts from the evidence, to follow the rules of law as stated in these instructions, to reach a fair and impartial verdict of guilty or not guilty based upon the evidence, and to determine punishment if you should find the defendant guilty as you have sworn you would do. You must not use any method of chance in arriving at a verdict, but must base your verdict on the judgment of each juror.

Myers submits the language "to determine punishment if you should find the defendant guilty as you have sworn you would do" is misleading because in a bifurcated or death penalty trial, the issue of punishment is not before the jury at the conclusion of the first stage. Although Myers admits the jury was properly instructed in Jury Instruction No. 11 that the issue of punishment was "not before you at this time," he submits Jury Instruction No. 2 suggests the jury is sworn to find the defendant guilty. Relying upon Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), Myers argues the error constitutes a denial of due process and is reversible where there is a "reasonable likelihood" that the jury has applied the challenged instruction in an unconstitutional manner.

¶64 Defense counsel did not object to this uniform instruction at trial and our review is for plain error. Roberts v. State, 2001 OK CR 14, ¶ 7, 29 P.3d 583, 585. When there is no objection to an instruction at the trial court level and an appellant challenges an instruction as ambiguous, we look at whether the instructions, taken as a whole, properly advise the jury of the applicable law. See Thomas v. State, 1991 OK CR 58, ¶ 37, 811 P.2d 1337, 1346.

¶65 Here, the jury was properly instructed in Jury Instruction No. 11 that the issue of punishment was not before them at this time. In addition, the first stage instructions, as a whole, did not address the issue of punishment. Further, even utilizing the "reasonable likelihood" standard set forth in Boyde, we find the jury was properly instructed on the elements of the crime and the State’s burden of proof in the first stage of trial, and the instructions taken as a whole were not confusing or ambiguous.

¶66 However, even though we find no plain error, we are convinced by Myers’s argument that the uniform jury instruction, OUJI-CR 2d. 10-2, requires some modification. Accordingly, we prospectively modify OUJI-CR 2d. 10-2 to read:

It is your responsibility as jurors to determine the facts from the evidence, to follow the rules of law as stated in these instructions, to reach a fair and impartial verdict of guilty or not guilty based upon the evidence,[and to determine punishment if you should find the defendant guilty,] as you have sworn you would do. You must not use any method of chance in arriving at a verdict, but must base your verdict on the judgment of each juror.

The Notes on Use following OUJI-CR 2d. 10-1 shall also be amended to indicate the bracketed material in the modified OUJI-CR 2d. 10-2 instruction shall only be used in non-bifurcated trials.

 INEFFECTIVE ASSISTANCE OF COUNSEL

¶67 In his twentieth proposition of error, Myers claims his trial counsel’s performance was constitutionally ineffective, because trial counsel "failed to investigate and present evidence so important" that the guilt and sentencing verdicts are unreliable. Simultaneously with the filing of his Brief in Chief, counsel for Myers filed an Application for Evidentiary Hearing on Sixth Amendment Claims, pursuant to Rule 3.11(B)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001). Myers argues his claim of ineffective assistance of trial counsel is supported by matters outside the appeal record and urges this Court to remand for an evidentiary hearing to develop facts relating to his claim. Attached to the Application for Evidentiary Hearing are Affidavits offered to meet the burden set forth in Rule 3.11(B)(3)(b) that "the application and affidavits must contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective." Rule 3.11.

¶68 Myers argues his counsel’s trial investigation was inadequate in two areas: impeachment evidence relating to Sydney Byrd and mitigation evidence. In support of his Application for Evidentiary Hearing, counsel for Myers has filed her own Affidavit and Affidavits of Kristin Brown, Barry Rouw, and John Struchtemeyer. (Exhibits 1-4, respectively).

¶69 The Affidavits of Kristin Brown, and Barry Rouw suggest that Byrd was or could have been suffering from some psychiatric disorder and was or could have been medicated at the time he claims Myers confessed to him. Further, appellate counsel argues his Byrd’s prior criminal records would have revealed his propensity to distort reality or lie. Appellate counsel argues the Affidavits show a probability that trial counsel was ineffective for not obtaining and presenting evidence that would have severely undermined Byrd’s credibility.

¶70 Appellate counsel also argues trial counsel’s performance fell below objective standards because he did not obtain Myers’s school records and use them as mitigation evidence. Counsel argues the school records would have confirmed Myers’s sister’s testimony about Myers’s very bad childhood and would have also corroborated Dr. Murphy’s testimony that Myers suffered from mental deficits. Counsel argues "[I]n sum, Mr. Myers’ school records would have dispelled any doubts about the accuracy of the pictures painted by Ms. Robitaille and Dr. Murphy."

¶71 Analysis of a claim of ineffective assistance of counsel begins with the presumption that trial counsel was competent to provide the guiding hand the accused needed, and therefore the burden is on the accused to demonstrate both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland sets forth a two-part test to be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel’s performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the defendant makes both showings, "it cannot be said that the conviction . . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687, 104 S.Ct. 2064. Appellant must demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. at 689, 104 S.Ct. at 2065-66.

¶72 Here, the record shows trial counsel thoroughly and successfully attacked Byrd’s credibility and exposed his motive to fabricate to the jury. Further, the evidence contained in the elementary school records which trial counsel did not discover or utilize was arguably cumulative to the testimony of Dr. Murphy and Appellant’s sister.

¶73 Review of the Application and the supporting Affidavits show trial counsel certainly could have obtained and utilized this evidence for trial. However, it does not show by "clear and convincing evidence" a strong possibility that trial counsel was ineffective for failing to identify or utilize this evidence. Accordingly, we decline to grant the Application for Evidentiary Hearing and relief is denied on Proposition Twenty.

SECOND STAGE ISSUES

¶74 Myers argues, in Proposition Fourteen, that the State’s evidence was insufficient to prove beyond a reasonable doubt that the murder was especially heinous, atrocious, or cruel, and we agree. This Court has limited the heinous, atrocious, or cruel aggravating circumstances to those cases where the State proves beyond a reasonable doubt that the murder of the victim was preceded by torture or serious physical abuse, which may include the infliction of either great physical anguish or extreme mental cruelty. Cheney v. State, 1995 OK CR 72, ¶ 15, 909 P.2d 74, 80.

¶75 When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, the proper test is whether there was any competent evidence to support the State’s charge that the aggravating circumstance existed. Martinez v. State, 1999 OK CR 33, ¶ 69, 984 P.2d 813, 830. In making this determination, this Court should review the evidence in a light most favorable to the State. Id.

¶76 Williams’s car was found abandoned eleven (11) miles from Rocky Point. Investigators discovered a large blood stain in the parking lot of Rocky Point and drag marks from that stain to where her body was found. Williams was shot five times. The medical examiner could not be certain which of the gunshot wounds caused Williams to lose consciousness, but the gunshot wound to her head could have rendered her immediately unconscious. The evidence where Williams’s body was discovered suggests she was shot at Rocky Point and, if she were taken there unwillingly, one might guess that she feared she would not see her children again.

¶77 We cannot find this circumstantial evidence supports the jury’s conclusion, beyond a reasonable doubt, that Williams’s murder was preceded either by torture or serious physical abuse. The evidence does not prove Williams was conscious and aware of her attack or that she was conscious and alive suffering pain after the attack. See Black, 2001 OK CR 5, ¶ 79, 21 P.3d at 1074. It also does not prove she suffered extreme mental anguish in addition to that which of necessity accompanied the homicide. Cheney, 1995 OK CR 72, ¶ 15, 909 P.2d at 80. The evidence does not show, beyond a reasonable doubt and in a light most favorable to the State, that Williams’s death was preceded by torture or serious physical abuse.

¶78 Because we find insufficient evidence to sustain the jury’s finding of the heinous, atrocious and cruel aggravating circumstance, we need not address the claim raised in Proposition Thirteen.

¶79 In Proposition Fifteen, Myers contends the trial court’s refusal to give the requested instruction on mitigation improperly conveyed the judge’s personal opinion and deprived him of a fair penalty determination. During the second stage of trial, Layne Davison, Myers’s case manager at the Oklahoma State Penitentiary (OSP), testified concerning his behavior while in prison. He evaluated Myers’s behavior as good; he had no trouble with other inmates and had no disciplinary problems. Defense counsel requested the following instruction relating to the "continuing threat" aggravator: "Karl Lee Myers functions well in the secure environment of prison, has not misbehaved, gives no trouble to other inmates or staff, and would not be a continuing threat to others in a prison setting." The State objected to the last clause of the requested instruction, beginning with the word "staff"6 on the ground that the objectionable language "would invade the province of the jury to make a conclusion whether or not that evidence presented would amount to – that he is not a continuing threat to society." Defense counsel did not object to omitting the language.

¶80 On appeal, Myers argues that the words "or staff" should not have been omitted, that the omission prevented the jury from considering the important mitigating evidence that Myers was not a threat to prison staff, and that the trial court’s omission of this language might have been intentional. Review of the record does not support the claims. The record shows defense counsel did not object to deleting the language of the requested instruction beginning with "staff" and our review is for plain error.

¶81 On cross-examination, Mr. Davison admitted that Myers did not have any physical contact with prison staff unless he is restrained. Accordingly, it was not plain error to omit the language relating to his behavior towards prison staff. The trial judge modified the instruction to the extent that it was not supported by the evidence. In addition, the jury was also instructed that it "may decide that other mitigating circumstances exist, and if so, you should consider those circumstances as well." Myers was not prevented from presenting mitigating evidence to the jury and the jury was instructed it could decide other mitigating circumstances existed. See Ochoa v. State, 1998 OK CR 41, ¶ 71, 963 P.2d 583, 605. No plain error occurred.

¶82 In Proposition Twelve, Myers claims his constitutional rights were violated when the testimony of State’s witness Charles Sharp was admitted. Sharp, a former sheriff from Cherokee County, Kansas, testified that Myers confessed he killed Chink Elders in Kansas in 1978. Sharp testified Myers was never prosecuted for the murder because Sharp granted Myers complete immunity from prosecution before he confessed.

¶83 This Court addressed this issue in Myers I.7 Myers was prosecuted in that case for the murder of Cindy Marzano. Sharp’s testimony in this case was virtually identical to that given in the Marzano case.

¶84 In Myers I, we said, "A confession made under the promise of immunity cannot be considered a voluntary confession." 2000 OK CR 25, ¶ 55, 17 P.3d at 1034.

To be admissible, a confession must be "free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." Brady v. United States, 397 U.S. 742, 754, 90 S.Ct. 1463, 1471-72, 25 L.Ed.2d 747 (1970), quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897); see also, Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). This Court has stated that "[A] confession made or induced by promise of reward or benefit . . . would be deemed involuntary, and would not be admissible." Ex parte Ellis, 1963 OK CR 62, ¶ 18, 383 P.2d 706, 709.

Id. There, we determined the promise of immunity was clearly used to obtain the confession. The confession would have been inadmissible against Myers in a criminal trial for the murder of Chink Elders; and, similarly the confession would not be admissible in the second stage of a capital murder trial as evidence of an aggravating circumstance. Id. We found this error to be constitutional, but harmless beyond a reasonable doubt. Id., 2000 OK CR 25, ¶ 59.

¶85 In this case, Appellant admits the above ruling applies "with equal force in the present case." He submits the issue to be determined here is whether the constitutional violation is harmless in the context of this case.

¶86 As in Myers I, this confession was utilized by the State to prove the continuing threat aggravating circumstance. Besides this evidence, the State presented evidence that Myers had been convicted of a prior assault with intent to rape, had been previously convicted of murdering Cindy Marzano, and had been in possession of a firearm after a felony conviction. Even without this confession, there was sufficient evidence to support the continuing threat aggravating circumstance. In light of the overwhelming evidence in support of this aggravating circumstance, we find the introduction of the confession was harmless beyond a reasonable doubt, because when viewed in light of all the evidence presented in aggravation, there is no reasonable probability the error contributed to the imposition of the death penalty. See Bryson v. State, 1994 OK CR 32, ¶ 41, 876 P.2d 240, 256-57.

¶87 In Proposition Seventeen, Appellant argues his death sentence must be vacated because three of the aggravating circumstances found by the jury are unconstitutionally vague and overly broad as construed by this Court, in violation of the Eighth and Fourteenth Amendments of the United States Constitution and Article II, Sections Seven and Nine of the Oklahoma Constitution. First, Appellant argues the continuing threat aggravator is unconstitutionally vague and overbroad. We have repeatedly rejected this claim and Myers advances no new reason why it should be reconsidered. Appellant complains that the jury instruction defining continuing threat, OUJI-CR 2d. 4-74, lowers the State’s burden of proof and does not properly define the degree of probability required for the aggravator. In Williams v. State, 2001 OK CR 9, ¶ 78, 22 P.3d 702, 722, we found OUJI-CR 2d. 4-74 was not ambiguous or subject to erroneous interpretation and there noted previous cases where we found the instruction was a correct statement of law that properly channeled the discretion of the jury. Id. We also have previously held this aggravator as defined by OUJI-CR 2d. 2-74 is not unconstitutionally overbroad for using the term "probability." Bland v. State, 2000 OK CR 11, ¶ 87, 4 P.3d 702, 725.

¶88 Myers argues the "especially heinous, atrocious, or cruel" aggravator is unconstitutionally vague and overbroad as applied and on its face. We have already determined this aggravator cannot stand in this case and its constitutionality need not be addressed.8

¶89 Myers also argues the "murder to avoid arrest or prosecution" aggravator is unconstitutionally overbroad, "taking in a huge portion of persons convicted of first degree murder." We have previously held the application of this aggravator is sufficiently limited by the requirements that (a) a predicate crime existed, apart from the murder, from which the defendant sought to avoid arrest/prosecution, and (b) the State presented evidence that established the defendant’s intent to kill to avoid arrest or prosecution. Alverson v. State, 1999 OK CR 21, ¶ 75, 983 P.2d 498, 520; see also Pickens, 2001 OK CR 3, ¶ 53, 19 P.3d at 883. Proposition Seventeen does not require relief.

¶90 During the second stage of trial, the medical examiner testified about the injuries that accompanied and caused Cindy Marzano’s death. Larry Elkin testified about his investigation of the Marzano murder. Mark Marzano testified about his wife’s disappearance. The State also introduced autopsy diagrams and three photographs of Marzano. Defense counsel objected to the testimony and to the admission of the documentary exhibits as well. After the presentation of this evidence, the parties stipulated that Myers had been convicted of Marzano’s murder. In Proposition Eighteen, Myers claims the prejudicial impact of evidence regarding his murder of Cindy Marzano outweighed any probative value it had and argues the evidence should have been excluded.

¶91 To support continuing threat as an aggravating circumstance, "the State must present evidence showing the defendant’s behavior demonstrated a threat to society and a probability that threat would continue to exist in the future." Wackerly v. State, 2000 OK CR 15, ¶ 52, 12 P.3d 1, 16. To prove this aggravator, "the State [must] present sufficient evidence concerning prior convictions or unadjudicated crimes to show a pattern of criminal conduct that will likely continue in the future. . ." Malone v. State, 1994 OK CR 43, ¶ 38, 876 P.2d 707, 717.

¶92 Myers complains that the testimony relating to the Marzano murder was more prejudicial than probative and had the effect of retrying him for his past crime against Cindy Marzano, but we disagree. Even when a defendant stipulates that he has a prior conviction, the "details of the prior conviction" may still be presented to support the continuing threat aggravating circumstance. Bland, 2000 OK CR 11, ¶ 76, 4 P.3d 702, 723. In Bland, we found the admission of testimony relating to the circumstances of a twenty year old homicide was more probative than prejudicial, did not constitute a retrial of the crime, and that to have excluded the evidence would have deprived the sentencer of highly relevant information concerning the defendant. Id. at ¶ 77, 4 P.3d at 723.

¶93 Here, neither the admission of autopsy diagrams and photographs of Marzano nor Mark Marzano’s testimony was more prejudicial than probative.9 The circumstances surrounding Marzano’s disappearance and details of her injuries were relevant and admissible to show Myers constituted a continuing threat. Id.

¶94 Myers claims the introduction of evidence relating to "unadjudicated acts" in the penalty stage of trial violated his Fifth, Sixth, Eighth and Fourteenth Amendment rights to the federal constitution and his rights under Article II, §§ 7, 9 and 20 of the Oklahoma Constitution. To support the continuing threat aggravator, the State introduced evidence through a former step-daughter, Stacy Fain, that Myers had molested her and threatened to kill her if she told anyone. Although the molestation was reported to authorities, Myers was never prosecuted for the offense. The State also introduced testimony of Myers’s confession to the murder of Chink Elders, which this Court has addressed in an unrelated proposition.

¶95 Evidence of prior unadjudicated acts of violent conduct are relevant and admissible in the penalty phase of a capital trial to prove the continuing threat aggravator. See e.g., Turrentine v. State, 1998 OK CR 33, ¶ 77, 965 P.2d 955, 977; Johnson v. State, 1996 OK CR 36, ¶ 36, 928 P.2d 309, 318. Myers urges this Court to depart from this well-established precedent for the reasons stated by Judge Chapel in his dissent in Paxton v. State, 1993 OK CR 59, ¶¶ 2-9, 867 P.2d 1309, 1334-1336 (Chapel, dissenting), and because admission of this evidence violates notions of due process and the prohibition against cruel and unusual punishment. We decline to revisit this issue and find the admission of testimony relating to his assault on Stacey Fain and his murder of Chink Elders did not deprive him of a fair sentencing proceeding or due process. Proposition Nineteen does not warrant relief.

¶96 In Proposition Sixteen, Myers argues his death sentence should be vacated because the execution of the mentally retarded and the neurologically damaged constitutes cruel and unusual punishment. Executions of mentally retarded criminals constitute "cruel and unusual punishments" and are prohibited by the Eighth Amendment. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The Court in Atkins left it to the individual States to define mental retardation and to develop appropriate procedures to enforce this constitutional restriction. Atkins, 536 U.S. at 317, 122 S.Ct. at 2250.

¶97 Following Atkins, in Murphy v. State, 2002 OK CR 32, ¶ 31, 54 P.3d 556, 567-568, modified in State, ex. rel Lane v. Bass, 2004 OK CR 14, 87 P.3d 629, 631-632, we set forth a definition of mental retardation to be used in capital trials where an individual claims he or she is not death penalty eligible due to mental retardation. For capital purposes, a mentally retarded person is one with significantly limited ability to intellectually and adaptively function in certain enumerated areas, who has at least one IQ test score of seventy (70) or below, and in whom the retardation manifested itself before the age of eighteen (18). Id.

¶98 At trial, Dr. Philip Murphy testified Myers’s full scale I.Q. score was seventy-seven (77); his verbal score was seventy (70), which is in the mild mental retardation range and his performance I.Q. score was eighty-six (86) which falls within the dull average range. Dr. Murphy concluded Myers fell in a borderline range of between normal functioning and mentally retarded functioning. Myers also is dyslexic, suffers from aphasia, and exhibits indicators of organic brain damage.

¶99 On appeal, appellate counsel filed a Notice of Extra-Record Evidence Supporting Appellant’s Proposition of Error Regarding Execution of the Mentally Retarded. Attached thereto are exhibits containing school records that show Myers’s mental and emotional status dating back to September of 1954. These records were not admitted in the trial of this matter, and Myers requests this Court allow the materials to be supplemented to the appeal record under Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001).

¶100 Before filing this appeal, Myers appealed his conviction and death sentence imposed for the murder of Cindy Marzano, and we affirmed his conviction and sentence of death. Myers I, 17 P.3d 1021, 2000 OK CR 25. We denied his Original Application for Post-Conviction Relief relating to that conviction. Myers v. State, PCD 2000-516 (Okl.Cr. February 6, 2001)(not for publication).

¶101 While this appeal was pending and after the Supreme Court decided Atkins, Myers filed a subsequent application for post-conviction relief relating to the Marzano case and Myers I. In this subsequent application, Myers raised an Atkins claim and argued he could not be executed due to mental retardation. We denied the subsequent application in part, but remanded the matter to the District Court of Rogers County for an evidentiary hearing on Myers’s claim of mental retardation. See Myers v. State, PCD 2002-978, (Okl.Cr. August 1, 2003)(not for publication). Following an evidentiary hearing, a jury trial was held on Myers’s claim of mental retardation. The jury returned with a verdict that Myers was not mentally retarded. This Court denied post-conviction relief after the mental retardation jury trial and found the record supported the jury’s verdict that Myers is not mentally retarded. Myers v. State, 2005 OK CR 22, ¶ 8, -- P.3d ---.

¶102 This Court previously denied requests of counsel to consolidate this appeal with PCD 2002-978 on November 5, 2003 and June 23, 2004. See Myers v. State, PCD 2002-978 and PCD 2002-258 (Okl.Cr. November 5, 2003)(not for publication) and Myers v. State, PCD 2002-978 (Okl.Cr. June 23, 2004)(not for publication). An additional remand for an evidentiary hearing and/or jury determination on Myers’s claim of mental retardation in this appeal is not warranted because a jury has already determined Myers is not mentally retarded, and this Court has affirmed that verdict on appeal. Smith v. State, 2002 OK CR 2, ¶ 7, 46 P.3d 136, 137 (when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot be relitigated between the same parties in any future lawsuit). Accordingly, no relief is warranted on Proposition Sixteen as the issue has previously been decided and the Motion to file Notice of Extra-Record Evidence Supporting Appellant’s Proposition of Error Regarding Execution of the Mentally Retarded is therefore DENIED. A jury has determined Myers is not mentally retarded, and we affirmed that finding on appeal. Myers, 2005 OK CR 22, ¶ 11, -- P.3d ---.

ACCUMULATION OF ERROR

¶103 In his final proposition of error, Myers asks this Court to review the aggregate impact of the errors in his case in addition to reviewing them individually. Where there is no error, there can be no accumulation of error; however, "when there have been numerous irregularities during the course of the trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial." Smith v. State, 1996 OK CR 50, ¶ 62, 932 P.2d 521, 538. While in this case we have found a few irregularities during the course of the trial, even taken together, these irregularities are not so great as to have denied Myers a fundamentally fair trial. After reviewing the errors in the aggregate, we find they were harmless beyond a reasonable doubt and no relief is warranted.

MANDATORY SENTENCE REVIEW

¶104 In accordance with our statutory duty, we must now determine whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and also whether the evidence supports the jury’s finding of the alleged statutory aggravating circumstances. See 21 O.S.1991, § 701.13(C). The jury found the existence of four (4) aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel; (2) the Defendant was previously convicted of a felony involving the use or threat of violence; (3) the existence of a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society; and, (4) the murder was committed for the purpose of avoiding arrest or preventing a lawful arrest or prosecution. 21 O.S.2001, § 701.12 (1), (4), (5), and (7).

¶105 In Proposition Fourteen, this Court found the evidence insufficient to support the jury’s finding of the heinous, atrocious, or cruel aggravator. Recently in Brown v. Sanders, 2006 WL 47402, --- U.S. ---, 126 S.Ct. 884, -- L.Ed.2d --- (January 11, 2006), the Supreme Court set forth a new rule and held that an invalidated sentencing factor will render a death sentence unconstitutional by reason of its

adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentences to give aggravating weight to the same facts and circumstances. . . .
If the presence of the invalid sentencing factor allowed the sentencer to consider evidence that would not otherwise have been before it, due process would mandate reversal without regard to the rule we apply here. The issue we confront is the skewing that could result from the jury’s considering as aggravation properly admitted evidence that should not have weighed in favor of the death penalty. As we have explained, such skewing will occur, and give rise to constitutional error, only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor.

(citations and footnotes omitted)(emphasis in original). Id., 126 S.Ct. at 892. All of the evidence relating to the abduction, rape and the murder itself was admissible evidence for another purpose – to show the sheer callousness of the crime in support of the continuing threat aggravating circumstance. Because the facts and circumstances that the invalidated aggravator permitted the jury to consider were "also open to their proper consideration under one of the other" aggravators, the erroneous aggravator could not have skewed the sentence, and no constitutional violation occurred. Id., 126 S.Ct. at 893.

¶106 The rule pronounced in Brown does not, in our opinion, replace the need for reweighing the aggravating and mitigating evidence when a weighing state invalidates one of the aggravating circumstances. As the dissent in Brown notes "the potential for the same kind of constitutional harm exists in both kinds of States, namely that the jury will attach special weight to that aggravator on the scale, the aggravator that the law says should not have been there." Brown, Breyer.J., dissenting, 126 S.Ct. at 899. Accordingly, when this Court invalidates an aggravator and at least one valid aggravating circumstance remains which enables the jury (or the judge in a bench trial) to give aggravating weight to the same facts and circumstances which supported the invalid aggravator, it will continue to reweigh the evidence and uphold the death sentence if the remaining aggravating circumstances outweigh the mitigating circumstances and the weight of the improper aggravator is harmless. Clemons v. Mississippi, 494 U.S. 738, 741, 110 S.Ct. 1441, 1444, 108 L.Ed.2d 725 (1990); Valdez v. State, 1995 OK CR 18, ¶ 73, 900 P.2d 363, 384. We may find an improper aggravator to be harmless error if, looking at the record, the Court finds that the elimination of the improper aggravator cannot affect the balance beyond a reasonable doubt. McGregor v. State, 1994 OK CR 71, ¶ 48, 885 P.2d 1366, 1385-1386. This "independent reweighing of aggravating and mitigating circumstances where one of several aggravating circumstances has been invalidated is implicit to our statutory duty to determine the factual substantiation of a verdict and validity of a death sentence." McGregor, id.

¶107 Three aggravating circumstances remain: (1) the Defendant was previously convicted of a felony involving the use or threat of violence; (2) the existence of a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society; and, (3) the murder was committed for the purpose of avoiding arrest or preventing a lawful arrest or prosecution. The evidence offered in support of each of these remaining aggravators was substantial.

¶108 The State presented evidence which showed Myers had been previously convicted of assault with intent to commit rape, murder and possession of a firearm after a felony conviction. This evidence was more than sufficient to prove Myers was previously convicted of a felony involving the use or threat of violence. Williams, 2001 OK CR 9, ¶ 130, 22 P.3d at 732.

¶109 Evidence of the prior violent felony convictions, plus evidence of Myers’s prior unadjudicated acts of violent conduct towards his step-daughter, and evidence showing the sheer callousness of the murder, was all compelling evidence supporting the continuing threat aggravator. Young, 2000 OK CR 17, ¶ 78, 12 P.3d 20, 42.

¶110 Lastly, in support of the avoid arrest or prosecution aggravator, the State’s evidence showed Myers abducted Shawn Williams and took her to a secluded place where he physically and sexually assaulted her and killed her. Carter v. State, 1994 OK CR 49, ¶ 49, 879 P.2d 1234, 1250 (this aggravator requires a predicate crime, separate from the murder, for which the defendant seeks to avoid arrest or prosecution). Bonnie Makin testified about the sexual assault Myers committed against her, for which he was prosecuted and convicted. After the assault, which Myers committed in a secluded area, Myers drove Makin to town and told her if she told anyone, he would "finish it off." From this evidence, the jury could properly conclude Myers killed Williams to avoid arrest and prosecution for the crimes he committed against her.

¶111 Myers called three mitigation witnesses. Dr. Phillip Murphy, a clinical psychologist, evaluated Myers and testified his IQ scores placed him in a borderline range – between normal functioning and mentally retarded functioning. His performance IQ was much higher than his verbal IQ, which was consistent with his dyslexia and aphasia. Murphy testified Myers has severe deficits in language reception and expression and other neurological testing showed he has moderate to severe brain damage most likely caused from a head injury he suffered when he was eight years old.

¶112 Myers’s case manager at DOC testified Myers had not had any disciplinary problems while at the Oklahoma State Penitentiary.

¶113 Myers’s sister, Hazel Robitaille, described their childhood. When she and Myers were young children, her mother and father split. Her mother’s boyfriend lived with them for about one year; he was very abusive to Myers – physically and emotionally. Robitaille said Myers was hit by a car when he was about eight years old. He was running away from some children who were teasing him and when he ran into the street, he was hit by a car. He was in the hospital for a very long time and was in a coma. When he finally woke up, he was withdrawn and wouldn’t talk to anybody. When he returned to school, he did not do well. The other children always teased him and treated him like he did not belong. He often got in fights and even the teachers ridiculed him. Their mother remarried another man who also was abusive towards Myers. Robitaille recalled one time when this man (Garinger) urinated on Myers’s head. After their mother and Garinger split up, another boyfriend (Lake) also was abusive toward Myers. He used make Myers pick up cow patties and once tried to run over him. Robitaille testified she loved her brother and would continue to remain in contact with him even if he spent the remainder of his life in prison.

¶114 Although the mitigating evidence was uncontroverted, it was not overly compelling or unusually persuasive.10 The evidence supporting the aggravating circumstances was strong. Upon reweighing the remaining valid aggravating circumstances against the mitigating evidence, we find the aggravating circumstances outweighed the mitigating evidence and supported the death sentence. Had the jury considered only these valid aggravating circumstances, we find beyond a reasonable doubt the jury would have imposed the same sentence of death.

¶115 Upon review of the record, we are satisfied that neither passion, prejudice nor any other arbitrary factor contributed to the jury’s sentencing determination. After carefully reviewing the evidence presented, we also find that it supported the jury’s finding of the three valid aggravating circumstances.

¶116 Finding no error warranting reversal or modification, Myers’s Judgment and Sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY
THE HONORABLE DYNDA POST, DISTRICT JUDGE

OPINION BY: C. JOHNSON, J.
CHAPEL, P.J. : CONCURS
LUMPKIN, V.P.J. : CONCURS

FOOTNOTES

1 The State originally charged Appellant with two (2) counts of First Degree Murder. (O.R. 1-3, 37-40) The trial court later severed the charges. Count II was tried separately to a jury in 1998 and the jury set punishment at death. We affirmed Appellant’s conviction and sentence of death in that case. See Myers v. State, 17 P.3d 1021, 2000 OK CR 25(hereafter referred to as Myers I).

2 Myers filed his Petition in Error on September 6, 2000. On August 8, 2001, Myers filed his Brief in Chief, an Application for Evidentiary Hearing on Sixth Amendment Claims, and Notice of Extra Record Evidence Supporting Appellant’s Proposition of Error Referencing the Execution of the Mentally Retarded. The State filed its Answer on December 6, 2001, and Myers filed a Reply Brief on December 26, 2001. Oral argument was held on June 4, 2003. The parties filed Supplemental Authorities on May 31, 2002 and June 14, 2002. Appellant also filed a Motion for Leave to Present Supplemental Brief Regarding New Authority on Issues Previously Raised and a Supplemental Brief Regarding New Authority on July 3, 2002. That Motion is hereby GRANTED. Myers also filed a subsequent Application for Post-Conviction Relief in Myers I (PCD 2002-978), therein raising a claim substantially the same as that raised in the Supplemental Brief filed July 3, 2002. This Court denied requests of counsel to consolidate this appeal with PCD 2002-978 for purposes of deciding that issue and held the Opinion in this case in abeyance pending resolution of the issue in PCD 2002-978. See Myers v. State, 2005 OK CR 22, ¶ 8, -- P.3d -- .

3 Chemist Mary Long estimated the probability/match in this case was one in four billion Caucasians on the five genetic loci examined.

4 To accommodate Dr. Eisenberg’s schedule, he was called as a witness during a break in Long’s testimony.

5 Myers argues it was improper to allow Eisenberg to vouch for the credibility of Long and the lab when Long "had not even testified." The record shows Eisenberg was called as a witness, out of order, just after Long had begun to testify. The record does not show the defense objected to Eisenberg testifying out of order; rather, the only objection went to his testimony as being irrelevant or cumulative.

6 Although Myers claims the State objected to the "last clause" of the requested instruction, review of the trial transcript shows the State did not "object to anything preceding the word staff." (emphasis added).

7 See n. 1.

8 We have repeatedly upheld the constitutionality of this aggravator. See Black v. State, 2001 OK CR 5, ¶ 77, 21 P.3d 1047, 1073 and cases cited therein.

9 We note Mark Marzano did not "detail" the effects Cindy Marzano’s murder had on their children. In fact, review of his testimony shows he only testified they had four children and gave their ages.

10 The jury was instructed in Instruction No. 38 that Myers had introduced evidence of the following mitigating circumstances: (1) Myers suffers from a low I.Q.; (2) Myers suffers from brain damage; (3) Before suffering a severe automobile accident as a small child which left him in a coma for a period of time, Myers was a normal, outgoing child; (4) As a child and adolescent, Myers was subjected to extensive emotional, psychological, and physical abuse at the hands of various father figures; (5) In school, Myers was ostracized, ridiculed, and emotionally and physically abused by other students and teachers because of his low intellectual functioning; (6) Myers has been a loving brother to his sister, Hazel Robitaille, and her family, helping out whenever he could; (7) Hazel Robitaille, Myers’s sister, loves him and would continue to contact him if he is sentenced to spend the rest of his life in prison. Myers life has meaning to his sister; (8) If not executed and sentenced to life imprisonment without the possibility of parole, Myers will spend the rest of his life in custody; (9) Myers functions well in the secure environment of prison, has not misbehaved, gives no trouble to other inmates. This instruction also advised the jurors that "in addition, you may decide that other mitigating circumstances exist, and if so, you should consider those circumstances as well."

 
 

Myers v. State
2000 OK CR 25
17 P.3d 1021
71 OBJ 3246
Case Number: D 1998-646
Decided: 12/08/2000
Modified: 01/29/2001
Rehearing Denied: January 29, 2001

KARL LEE MYERS, Appellant -vs- STATE OF OKLAHOMA, Appellee

Oklahoma Court of Criminal Appeals

Cite as: 2000 OK CR 25, 17 P.3d 1021

O P I N I O N

LILE, JUDGE:

[17 P.3d 1026]

¶1 Karl Lee Myers was convicted, by jury, of Murder in the First Degree (21 O.S.1991, § 701.7) in the District Court of Rogers County, Case No. CF-96-233, before the Honorable Dynda Post, District Judge. After the sentencing stage, the jury found the existence of four aggravating circumstances: the murder was especially heinous, atrocious, or cruel; the Defendant was previously convicted of a felony involving the use or threat of violence; the existence of a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society; and the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and set punishment at death. 21 O.S.1991, § 701.12(1), (4), (5) & (7). The trial court entered Judgment and Sentence in accordance with the jury's verdict. From this Judgment and Sentence, Myers has perfected his appeal.

FACTS

¶2 The victim, Cindy Marzano, and Appellant were acquaintances. She left home for work on March 14, 1996, bearing no bruises or wounds on her face or head. She drove her 1984 silver Chevrolet Impala to work for her 1:00 p.m. to 9:00 p.m. shift. While at work she spoke to Appellant twice between 7:00 p.m. and 8:00 p.m. and was overheard agreeing to meet Appellant after work. She checked out at 9:09 p.m. and was seen thereafter at Denny's restaurant where she and a man remained about thirty (30) minutes.

¶3 At 11:51 p.m., Appellant was at a convenience store, where he had been a regular customer, and remained two to two and one-half hours. He washed his truck while there and told the clerk he had been at a relative's house. At 12:30 a.m., Cindy Marzano was found floating face down in the water at the Highway 33 Landing on the navigation channel near the Port of Catoosa. Her blouse and bra were pulled up and she had bruises on her forehead, upper left arm and neck. She had cuts on her face and an abrasion between her shoulder blades. She had bruises on her right thigh and left leg. These injuries were suffered prior to death. Asphyxiation was determined to be the cause of death. DNA testing established that spermatozoa found in her vagina matched Appellant's DNA.

¶4 Appellant first denied that he had seen the victim that night. He finally admitted talking to the victim that night at her work. He said they agreed to meet at Denny's for coffee, and he was home by 11:45 p.m. He denied any physical contact with the victim. He later admitted to having consensual sex with the victim that night.

¶5 Inmate Sidney Byrd testified that Appellant admitted killing two women, and further admitted that (concerning Cindy Marzano) "he was fucking her from behind when he strangled her and she died."

JURY SELECTION ISSUES

¶6 In Proposition I, Appellant complains that the trial court improperly refused to excuse prospective juror, Janice Irene Riggs, on the grounds that she was unable to consider all three punishment options: life, life without parole, and death. We said in Humphries v. State, 1997 OK CR 59, ¶ 3, 947 P.2d 565, 570-71:

"The decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion whose decision will not be disturbed unless an abuse of discretion is shown. Spears v. State, 900 P.2d 431, 437 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995); Allen v. State, 862 P.2d 487, 491 (Okl.Cr. 1993), cert. denied, 511 U.S. 1075, 114 S.Ct. 1657, 128 L.Ed.2d 375 (1994). To determine if the trial court properly excused a prospective juror for cause, this Court will review the entirety of the juror's voir dire examination. Carter v. State, 879 P.2d 1234, 1244 (Okl.Cr. 1997), cert. denied, 513 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995). To withstand a challenge for cause concerning punishment [17 P.3d 1027] issues, a venireperson must be willing to consider all the penalties provided by law and not be irrevocably committed to any one punishment option before the trial has begun. Carter, 879 P.2d at 1244."

¶7 The Court first inquired of prospective Juror Riggs whether she could consider all three of the legal punishments to which the prospective Juror replied, "Yes, ma'am." When examined by Appellant's trial counsel the prospective Juror stated that the death sentence "was not always appropriate" in circumstances of first degree murder although she opined it was "more of the time" as opposed to less of the time. Although at one time the prospective Juror stated that if somebody is charged with killing somebody and guilt is proved that he should be put to death, she later explained: "I will say it again, in most instances, yes." Under further examination by Appellant's trial counsel, the prospective Juror stated that she would "more than likely" vote for the death sentence, but that she would consider life or life without parole. At this point, Appellant's trial counsel moved to excuse the juror for cause. The court further examined the juror at which time the juror responded that "I could certainly weigh all three" and that by weigh she meant consider. Appellant's trial counsel asked numerous further questions on different issues and ultimately passed prospective Juror Riggs for cause.

¶8 It is clear that this prospective juror was willing to consider all three possible punishments for First Degree Murder, and the trial court properly refused to excuse her for cause. Humphries, 1997 OK CR 59, ¶ 3, 947 P.2d at 570.

¶9 Further, apparently even Appellant's trial counsel believed the juror to be legally qualified after Judge Post's follow up questioning because he ultimately passed the juror for cause. The right to challenge any juror for cause is a statutory right which may be waived by the defendant. Plantz v. State, 1994 OK CR 33, ¶ 24, 876 P.2d 268, 277, cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091 (1995).

¶10 Thereafter, but prior to the jury being sworn, Appellant renewed his objection to prospective Juror Riggs, even though he had previously excused her by peremptory, and stated that he would have used his last peremptory challenge to excuse Mr. Smith if Ms. Riggs had been excused for cause by the court. In the interim, Appellant had passed for cause prospective jurors, Mr. Smith and Ms. Bunt.1

¶11 We have held:

"The failure of the trial court to remove a prospective juror who unequivocally states that he is unwilling to follow the law during the penalty phase by considering a life sentence is error. The record reflects that defense counsel challenged the prospective juror for cause, and when the court denied the challenge, defense counsel used a peremptory challenge. All of appellant's peremptory challenges were subsequently used; but as there is nothing in the record to show that any juror who sat on the trial was objectionable, we are unable to discover any grounds for reversal."

Ross v. State, 1986 OK CR 49, ¶ 11, 717 P.2d 117, 120 (citations omitted), aff'd sub nom, Ross v. Oklahoma, 487 U.S. 81, 83-84, 108 S.Ct. 2273, 2276, 101 L.Ed.2d 80, 87 (1988). In affirming Ross v. State, the U.S. Supreme Court said:

"On further examination by defense counsel, [Prospective Juror] Huling declared that if the jury found petitioner guilty, he would vote to impose death automatically. Defense counsel moved to have Huling removed for cause, arguing that Huling would not be able to follow the law at the penalty phase. The trial court denied the motion and Huling was provisionally seated. The defense then exercised its sixth peremptory challenge to remove Huling. The defense ultimately used all nine of its challenges. . . . None of the 12 jurors who actually sat and decided petitioner's fate was challenged for cause by defense counsel."

[17 P.3d 1028]

Ross, 487 U.S. at 83-84, 108 S.Ct. at 2276. The Supreme Court further stated,

"Any claim that the jury was not impartial, therefore, must focus not on Huling, but on the jurors who ultimately sat. None of those 12 jurors, however, was challenged for cause by petitioner, and he has never suggested that any of the 12 was not impartial. . . . We conclude that petitioner has failed to establish that the jury was not impartial."

Ross, 487 U.S. at 86, 108 S.Ct. at 2277, 101 L.Ed.2d at 88.2

¶12 We have examined the entire record on voir dire and we find nothing to indicate that Mr. Smith, or any of the jurors who ultimately decided the case, were not impartial.

FIRST STAGE ISSUES

¶13 Myers claims that evidence of other "unrelated" crimes deprived him of a fair trial. The State filed an extensive Notice of Intent to offer evidence of other crimes, seeking to offer evidence that:

1. In June of 1976, Appellant sexually assaulted and threatened to kill Bonnie Makin Hames.

2. In July and August of 1986, Appellant sexually assaulted and threatened to kill Stacey Lane Fain.

3. In April of 1993, Appellant sexually assaulted and murdered Shawn Marie Williams.

¶14 The State claimed that these incidents helped establish the motive for the murder of Cindy Marzano, the victim in this case. The State additionally claimed that these incidents had sufficient similarities to the murder of Cindy Marzano to establish intent. All victims were females with which he had become acquainted and were enticed to accompany him in his vehicle, taken to a remote location and injured, or threatened with injury, to obtain their silence.

¶15 Appellant challenged the evidence and the trial court conducted hearings to determine the issue. The trial court found that the assault on Bonnie Makin Hames was admissible to show intent, motive, and common scheme or plan. The court noted that the similarities in the case were very striking and that the probative value of the evidence was very great and outweighed the prejudicial effect to the defendant. Concerning the assaults on Stacey Lane Fain, the court reached the same conclusions. The court reached a different conclusion regarding the murder of Shawn Marie Williams and excluded that evidence. The trial court considered Bryan v. State, 1997 OK CR 15, ¶ 33, 935 P.2d 338, 356, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997), which states the general rule that a defendant is to be convicted, if it all, by evidence which shows him guilty of the charged crime and not by evidence of other crimes. The trial court acknowledged the dictates of Title 12, O.S.1991, § 2404 (B), which defines the limitations on admission of evidence of other crimes, to wit:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."

The trial court found that the evidence was relevant to Appellant's motive and intent to kill the victim in this case and further found that the crimes were sufficiently similar to establish a common scheme or plan.

¶16 Despite our prior cases to the contrary, "the enumerated permissible purposes for which other crimes, wrongs, or acts evidence may be admitted under [12 O.S.1991, § 2404(B)] of the [Oklahoma Evidence] Code are not exclusive." 2 Leo H. Whinery, Oklahoma Evidence, 354 (1994).3 The literal language of Section 2404(B) - "It may, [17 P.3d 1029] however, be admissible for other purposes, such as . . . ." - clearly indicates more exceptions than those listed in the statute. Whinery, supra.

¶17 This Court has stated on more than one occasion that "consistent with the prevailing view . . . the five enumerated exceptions in Section 2404(B) of the Oklahoma Evidence Code were not intended to be exclusive or exhaustive." Anderson v. State, 1999 OK CR 44, ¶ 12, 992 P.2d 409, 415, cert. denied, ___ U.S. ___, 121 S.Ct. 124, ___ L.Ed.2d ___ (2000); quoting Gideon v. State, 1986 OK CR 112, ¶ 11, 721 P.2d 1336, 1338; Rhodes v. State, 1985 OK CR 16, ¶ 9, 695 P.2d 861, 863.

¶18 In State v. Plaster, 424 N.W.2d 226 (Iowa 1988), the Court allowed evidence of a defendant's sexual assault on a woman other than the prosecutrix. The court, examining Rule 404(b) of the Iowa Rules of Evidence, reasoned that the exceptions listed in the rule are not exclusive. Id. at 228. The Court stated that the

"key is 'whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit wrongful acts. . . . If the evidence meets this litmus test, it is prima facie admissible, not withstanding its tendency to demonstrate the accused's bad character."

Id. at 229 (citations omitted). A consequential fact in the Plaster case was whether the victim consented to sexual intercourse. The evidence of the other similar sexual abuse showed the likelihood that there was no consent. The evidence of the prior sexual conduct also showed the same peculiar and characteristic behavior pattern manifested in the crime charged. This conduct made it more probable that there was no consent.

¶19 Appellant, in one of his statements, claimed that he had consensual sex with Marzano. However, similarities between the two prior acts and the present case, make it more probable that Marzano did not consent to sexual intercourse with Appellant. Further, there are striking similarities between the assaults which are probative of motive, intent, and common scheme or plan. In all three instances Appellant was acquainted with the victim; the victims were lured into automobiles; all of the victims were forcefully and sexually assaulted; the assailant threatened to kill the first two victims and did kill the third.

¶20 Another reason for admission was to show Appellant's motive for murder. Having received a stiff prison sentence following the Hames assault, and having been investigated following the Fain assault, although he avoided criminal charges, presents a sufficient factual basis to support the submission of the evidence to the jury as proof of motive for and as proof of intent in the instant case. The jury may well have determined that Appellant intended to kill Cindy Marzano in order to avoid punishment and investigation similar to what he endured after the other assaults.

¶21 Several states have adopted a "greater latitude" approach to the admission of other crimes evidence in sex crimes cases. See State v. Davidson, 613 N.W.2d 606, 617 n.12 (Wis. 2000). The Federal Rules of Evidence have also been expanded to include a provision for the introduction, in sexual assault cases, of "evidence of the defendant's commission of another offense or offenses of sexual assault . . . for its bearing on any matter to which it is relevant." Fed. R. Evid. 413.

¶22 In keeping with this "greater latitude" for introduction, the court in State v. Davidson allowed the introduction of a sexual assault on a girl which had occurred ten years prior to the charged offense, also a sexual assault on a young girl. There were just as many differences in the assaults as there were similarities. However the court, following a "greater latitude rule," determined that the evidence was relevant to show motive, as well as common plan or scheme. Davidson, 613 N.W.2d at 620-21.

¶23 Wisconsin's rules of evidence are substantially similar to our own. Wisconsin has a "long-standing principle that in sexual assault cases . . . courts permit a 'greater latitude of proof as to other like occurrences.'" Davidson, 613 N.W.2d at 615 (citations omitted). However, before admission, the other crimes evidence must conform to certain [17 P.3d 1030] rules such as: (1) whether the evidence is introduced for a proper purpose, Wis. Stat. § (rule) 904.04(2) [same as Title 12 O.S.1991, § 2404(b)]; (2) whether the evidence is relevant pursuant to rule 904.01, and (3) whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion, or delay under rule 904.03. Davidson, 613 N.W.2d at 614-15.

¶24 Our holding today brings our interpretation of Title 12 O.S.1991, § 2404(B), in line with the clear language that the exceptions are not exclusive. The trial court acted properly within its discretion in determining that evidence of the Hames and Fain assaults were probative and admissible. The evidence was properly admitted under current Oklahoma law. Further, the evidence would be admissible under the "greater latitude rule" recognized today for cases involving sexual assaults.

¶25 Appellant claims that the procedural safeguards were not followed. Appellant correctly states that the following procedural safeguards protect Appellant from the admission of unduly prejudicial evidence of other crimes: (1) the evidence must be offered for a proper purpose under § 2404; (2) the evidence must be relevant under § 2402) (3) the probative value of the evidence must outweigh its prejudicial value under § 2403; and (4) if requested, a limiting instruction on the proper use of the evidence must be given. Blakely v. State, 1992 OK CR 70, ¶ 10, 841 P.2d 1156, 1158-59.

¶26 Appellant incorrectly argues that he was denied these safeguards. The trial court carefully and fully considered all of these safeguards, as shown by the record and the trial court's exclusion of evidence of the murder of Shawn Marie Williams. The trial court abuses its discretion when its decision is "a clearly erroneous conclusion and judgment; one that is clearly against the logic and effect of the facts presented in support of and against the application." Stevens v. State, 94 Okl.Cr. 216, 225, 232 P.2d 949, 959 (1951). We do not find an abuse of discretion here.

¶27 Appellant also complains that the witness, Patricia Curry, testified that in July of 1996 Appellant told her that "you could dispose of women very easily" either in the soft sand in east Texas or at Rocky Point (located a short distance from the location of Cindy Marzano's body) and that the testimony constituted "other crimes evidence." In fact, this testimony related to the crime in question and not to other crimes as far as the jury was concerned (the trial court had excluded evidence of the murder of Shawn Marie Williams who in fact was found at Rocky Point). The evidence was admissible as an admission by Appellant directly relating to the murder of Marzano.

¶28 In Proposition IV, Appellant complains for the first time on appeal that his "statutory rights were violated when the state elicited improper opinion testimony" from the medical examiner. The question now complained of was stated by the prosecutor as follows: "Question: Okay. Doctor, from your observations during the viewing, autopsy, and investigation, were you able to draw any conclusion as to or develop any opinion that would suggest that this individual was raped?" Appellant did not object to the question nor to any of the testimony that followed. As we said in Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693, "failure to object with specificity to errors alleged to have occurred at trial, thus giving the trial court an opportunity to cure the error during the course of trial, waives that error for appellate review . . . ." We are left then to review for plain error only, i.e. errors "which go to the foundation of the case, or which take from a defendant a right which was essential to his defense." Simpson, 1994 OK CR 40, ¶ 12, 876 P.2d at 695.

¶29 Although invited by the prosecutor to give a medical opinion as to whether the victim was raped, he wisely declined, which may well explain the failure of Appellant to object to the answers that followed. The witness stated that there were things present suggestive of rape, and after thorough cross-examination, the same witness conceded, "There are aspects to the case that can support the idea that sexual intercourse was not rape." When asked by defense counsel if there was anything scientifically [17 P.3d 1031] conclusive, one way or the other, the witness stated, "Absolutely not."

¶30 The witness's medical opinion regarding whether rape occurred was that there was no scientific evidence either way; an answer helpful to Appellant. When asked about observable evidence suggestive of rape or consent, he found both (i.e., the victim's upper clothing was pulled up to expose her breasts; her lower clothing was completely intact; sperm was found in her vagina; she had multiple bruising indicative of a struggle, but no vaginal area injuries).

¶31 There is no plain error here. In fact, the witness was as useful to Appellant as to the State, which explains the failure to object. As the testimony actually developed, we find no conflict with the provisions of Title 12 O.S.1991, § 2702, nor of Title 12 O.S.1991, § 2403.

¶32 Appellant, in Proposition V, complains that twelve photographs were improperly admitted into evidence because their probative value was outweighed by their prejudicial impact on the jury. Appellant relies on Peninger v. State, 1991 OK CR 60, ¶¶ 7-10, 811 P.2d 609, 611, in which this Court determined that the photographs of young boys other than the victim were not relevant because they did not tend to prove an issue in the case. Appellant further relies upon President v. State, 1979 OK CR 114, ¶ 17, 602 P.2d 222, 225, where we first found that the photographs of the deceased were relevant and then proceeded to say, "To avoid confusion, it should be made clear that it was the needless duplication and the presentation of slides themselves which constitute the error." Appellant further relies upon Tobler v. State, 1984 OK CR 90, 688 P.2d 350, 355-56, and Oxendine v. State, 1958 OK CR 104, 335 P.2d 940, 943. In Tobler, the photographs which we found should have been excluded "depict[ed] the gruesome work of nature under the extreme conditions present." Tobler, 1984 OK CR 90, ¶ 24, 688 P.2d at 355. In Oxendine, the improperly admitted photographs showed "the gruesome incisions incident to the autopsy." Oxendine, 1958 OK CR 104, ¶ 8, 335 P.2d 940, 943. Appellant also relies upon Jones v. State, 1987 OK CR 103, 738 P.2d 525, 528. In Jones, the photographs in question were found to have added "nothing to the state's submission of proof . . ." and depicted the body in an advanced state of decomposition, covered with algae and slime. Jones, 1987 OK CR 103, ¶ 12, 738 P.2d at 528.

¶33 A review of the photographs complained of in the case reveals that neither evidence of decomposition, nor autopsy are depicted. State's exhibit 56, 57, and 58 show a frontal facial view, the left side of the face, and the right side of the face, respectively. Each photo depicts contusions or lacerations not shown in the other photographs. State's exhibit 60 shows a large abrasion on the victim's left upper arm. State's exhibit 61 shows the back of the right arm, including the elbow and forearm, revealing an abrasion and a scratch. State's exhibit 62 shows a contusion and an abrasion to the left elbow. State's exhibit 63 shows lacerations or scratches on the victim's back. State's exhibit 64 shows a patterned contusion on the left side of the abdomen. State's exhibit 66 shows a side view of the upper left leg and reveals a contusion. State's exhibit 67 shows a contusion on the back of the victim's left hand. State's exhibit 68 shows the petechiae, including a very large one, in the left eyeball of the victim, which was consistent with the cause of death being asphyxiation. State's exhibit 69 shows the back of the left upper arm of the victim revealing an area of contusion and abrasion.

"For photographs to be admissible, their content must be relevant and their probative value must substantially outweigh their prejudicial effect. Nguyen v. State, 769 P.2d 167, reh. denied, 492 U.S. 938, 110 S.Ct. 27, 106 L.Ed.2d 639; Smith v. State, 737 P.2d 1206, 1210 (Okl.Cr. 1987), cert. denied, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987); Oxendine v. State, 335 P.2d 940, 942 (Okl.Cr. 1958). When the probative value of photographs is outweighed by their prejudicial impact on the jury-that is the evidence tends to elicit an emotional, rather than rational, judgment by the jury-then they should not be admitted into evidence. President v. State, 602 P.2d 222, 225 (Okl.Cr. 1979); Oxendine, 335 P.2d at 942."

[17 P.3d 1032]

Peninger, 1991 OK CR 60, ¶ 7, 811 P.2d at 611. Further,

"We recognize the well established rule that the admissibility of photographs is a matter within the trial court's discretion and that absent an abuse of that discretion, this Court will not reverse the trial court's ruling. Nuckols v. State, 690 P.2d 463, 470 (Okl.Cr. 1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985)."

Peninger, 1991 OK CR 60, ¶ 9, 811 P.2d at 611.

¶34 Each photograph shows a different injury. The photographs are not unduly gruesome, nor prejudicial. Each photograph confirmed the doctor's testimony concerning observed injuries to the victim. The photographs displayed for the jury the exact location of and size and extent of the injuries that the doctor had described in his oral testimony, both confirming and more accurately delineating the various injuries suffered by the victim.

¶35 The photographs complained of here were clearly relevant; they were not unduly gruesome nor prejudicial and were properly admitted into evidence.

¶36 Appellant complains that exhibit 68 was "particularly prejudicial" in that it shows the victim's eye held open by tweezers to show the inside of her eyelid and the outside portion of her eyeball. This photograph shows a very large petechiae which was consistent with death by asphyxiation. This sterile, clinical photograph was relevant in this case because of its importance to the conclusion of death by asphyxiation and was properly admitted. Fairchild v. State, 1999 OK CR 49, ¶¶ 70-71, 998 P.2d 611, 626.

¶37 Appellant also complains that the State was allowed to project, and thus enlarge, the photographs onto a screen during the testimony of the medical examiner. The witness referred to each enlargement, as it was displayed, describing the injuries shown on each. It would have been impossible for the entire jury panel to view the 31/2 by 5 inch photographs during the actual testimony. This reasonable demonstrative aid, designed to allow all the jurors to see the exact extent of injuries as they were described by the expert witness, was entirely proper under the circumstances of this case.

¶38 In Proposition III, Myers challenges the sufficiency of the evidence supporting his murder conviction. Myers was charged with killing Cindy Marzano with malice aforethought and alternatively with killing her during the commission of a rape (felony murder).

¶39 In Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204, adopting the test established by Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979), we established the test for evaluating sufficiency of the evidence as "[w]hether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Credibility of witnesses and the weight to be given their testimony is within the exclusive province of the jury. Renfro v. State, 1980 OK CR 6, ¶ 12, 607 P.2d 703, 706. Further, we accept all reasonable inferences and credibility choices which tend to support the jury's verdict. Washington v. State, 1986 OK CR 176, ¶ 8, 729 P.2d 509, 510.4

¶40 Appellant and the victim, Cindy Marzano, were acquaintances. When Ms. Marzano went to work on March 12, 1996, she had no apparent bruises or wounds nor did she receive any during her work shift that afternoon and evening. She did however meet with Appellant while at work and she agreed to meet Appellant after work. She left work at 9:09 p.m. and was at Denny's [17 P.3d 1033] restaurant with Appellant before 10:00 p.m. Her car was found at the Denny's restaurant. At 11:51 p.m., Appellant was at a convenience store alone, where he washed his truck. Appellant told the clerk he had been at a relative's house. At 12:30 a.m. the victim was found near Highway 33 Landing near the Port of Catoosa floating face down in the water. She died of asphyxiation and was heavily bruised. DNA established that Appellant and the victim had had sexual intercourse.

¶41 Appellant gave conflicting stories concerning his whereabouts at the relevant times and first denied any physical contact with the victim and later admitted he had engaged in sex with her, claiming that it was consensual. Appellant gave conflicting stories about whether or not the victim had ever been in his truck. Sidney Byrd, an inmate in the county jail, testified as to conversation with Appellant, in jail, wherein Appellant admitted killing the victim.5

¶42 Bonnie Makin-Hames, sister to a friend of Appellant, was offered a ride, then taken to a rural area by Appellant and forcefully and sexually assaulted. Appellant threatened her life. Appellant went to prison as a result of the victim's complaint.

¶43 Stacey Fain, who lived in Appellant's home, was offered a ride to go to Wal-Mart and instead was taken to a rural area and sexually assaulted. Her life was also threatened by Appellant. Appellant was investigated but no criminal charges were filed.

¶44 Patricia Curry testified that shortly after the Marzano murder, Appellant bragged that women were easily disposed of at Rocky Point (near where the victim was found).

¶45 We find that all of the evidence, taken in the light most favorable to the State, supports the jury's verdict.

SECOND STAGE ISSUES

¶46 In Proposition VIII, Appellant complains that he was tried before a jury in handcuffs in violation of 22 O.S.1991, §15, which commands that "in no event shall he be tried before a jury in chain or shackles." This prohibition is of constitutional significance. The right to a fair and impartial trial is a basic tenet of our judicial system and violation of this statute may infringe upon the presumption of innocence. Owens v. State, 1982 OK CR 187, ¶¶ 4-6, 654 P.2d 657, 658-59.

¶47 In French v. State, 1962 OK CR 157, ¶ 20, 377 P.2d 501, 504, we said that the trial judge "should use every precaution within his grasp to see that the defendant is not paraded before the jury or jury panel in chains or shackles." When a violation occurs, "this Court must determine from the record whether the error was harmless beyond a reasonable doubt." Owens, 1982 OK CR 187, ¶ 6, 654 P.2d at 659; see Boyle v. State, 1977 OK CR 296, 569 P.2d 1026.

¶48 Myers was returned to the courtroom after the lunch recess on the second day of the sentencing stage of his trial. Approximately two jurors, coming back from lunch and passing through the courtroom on their way to the jury room, saw Appellant as his handcuffs were being removed.

¶49 In determining whether the error was harmless we examine: (1) whether the encounter was intentional; (2) whether the evidence against the accused was overwhelming; (3) whether the accused waived any error; and (4) whether the prejudicial viewing occurred in the courtroom. Lowery v. State, 1977 OK CR 167, ¶ 13, 563 P.2d 1189, 1192.

[17 P.3d 1034]

¶50 In this case, it is clear that the correctional officer's actions in bringing a handcuffed Myers into the courtroom were unintentional. He had no reason to believe that any jurors would be present at that time and he was not acting in conscious disregard of Myers' rights or out of a motive to prejudice Myers. Further, the evidence against Appellant, in the punishment stage of the proceeding was indeed overwhelming. Appellant made a timely objection and did not waive any error. Although the error occurred in the courtroom, it occurred during the lunch break and court was not in session.

¶51 This case is very similar, factually, to Snyder v. State, 1987 OK CR 121, 738 P.2d 548. In Snyder, the jailer brought the defendant into the courtroom in handcuffs and a juror who had returned early from lunch viewed the event. We said that "an unintentional viewing by members of the jury of a handcuffed defendant while the jury is not impaneled in the jury box is harmless error where there is no showing that the defendant suffered prejudice thereby." Snyder, 1987 OK CR 121, ¶ 6, 738 P.2d at 580.

¶52 Appellant's claim that the trial court prevented an examination of the jurors involved to determine what was seen is not supported by the record. Appellant never requested that any jurors be examined concerning the incident. We find any error to be harmless beyond a reasonable doubt.

¶53 In Proposition VII, Myers complains that his constitutional rights were violated by the improper admission of testimony from State's witness Charles Sharp, Sheriff of Cherokee County, Kansas, during the second stage of trial. Sharp testified that Myers had confessed that he had murdered Chink Enders in 1979. The sheriff testified that he obtained the confession after he promised Myers immunity from prosecution.

¶54 Appellant first claims that the promise of immunity from prosecution for the murder of Chink Enders prevented the use of the confession, as evidence of an aggravating circumstance, during the second stage proceedings of this trial. In the alternative, Appellant claims that the confession, made under the promise of immunity, was a coerced confession, thus was inadmissible in this proceeding.

¶55 A confession made under the promise of immunity cannot be considered a voluntary confession.

To be admissible, a confession must be "free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence."

Brady v. United States, 90 S.Ct. 1463, 1471-72, 397 U.S. 742, 754, 25 L.Ed.2d 747 (1970), quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897); see also, Malloy v. Hogan, 84 S.Ct. 1489, 1493, 378 U.S. 1, 7, 12 L.Ed.2d 653 (1964). This Court has stated that "[A] confession made or induced by promise of reward or benefit . . . would be deemed involuntary, and would not be admissible." Ex parte Ellis, 1963 OK CR 62, ¶ 18, 383 P.2d 706, 709.

¶56 Whether Sheriff Sharp had the authority to grant immunity is not the question here. The issue is whether the promise of immunity was used to obtain the confession. Obviously, this was the result, even though Sharp did not believe that Appellant committed the murder at the time of the promise of immunity.

¶57 Clearly, the confession would not have been admissible in a criminal trial against Appellant for the murder of Chink Enders. Similarly, the confession is not admissible during the second stage of a capital murder trial as evidence of an aggravating circumstance. Pickens v. State, 1996 OK CR 6, ¶ 12, 910 P.2d 1063, 1068.

¶58 Finding error in the introduction of this confession, we must determine whether the error was prejudicial to Appellant. This error is of constitutional magnitude. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967); Wisdom v. State, 1996 OK CR 22, ¶ 31, 918 P.2d 384, 393; see also Hain v. State, 1996 OK CR 26, ¶ 38, 919 P.2d 1130, 1141-1142, cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1997) (an error, albeit constitutional, is subject to a harmless [17 P.3d 1035] error analysis because it was an error in the trial process itself, and not a defect affecting the entire framework of the trial); see also Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991)(a majority of Justices hold that harmless error analysis applies to coerced confessions). The burden rests with the State to demonstrate beyond a reasonable doubt that the illegally obtained statement did not contribute to the sentence of death. Pickens v. State, 1994 OK CR 74, ¶ 7, 885 P.2d 678, 682, overruled in part on other grounds, Parker v. State, 1996 OK CR 19, ¶ 23, 917 P.2d 980, 986.

¶59 This confession was part of the evidence used to prove the continuing threat aggravating circumstance. Along with this confession, the State also presented evidence that Appellant had been convicted of a prior assault with intent to rape, had killed Shawn Marie Williams subsequent to the present crime, and had previously been charged with feloniously possessing a firearm. Even without this confession, there was more than sufficient evidence to support the continuing threat aggravating circumstance. In light of the overwhelming evidence in support of this aggravating circumstance, we find the introduction of the confession was harmless beyond a reasonable doubt, because when viewed in light of all the evidence presented in aggravation, there is no reasonable probability the error contributed to the imposition of the death penalty. See Bryson v. State, 876 P.2d 240, 256-57 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).

¶60 Even if we were unable to make the finding above, and we disregarded the continuing threat aggravating circumstance, we have the authority to reweigh the remaining aggravating circumstances against the mitigating evidence when an aggravating circumstance is found to be invalid. Young v. State, 1998 OK CR 62, ¶ 53, 992 P.2d 332, 344, cert. denied, ___ U.S. ___ 120 S.Ct. 100, 145 L.Ed.2d 84 (1999); Castro v. State, 1987 OK CR 258, ¶ 4, 749 P.2d 1146, 1148, cert. denied, 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (opinion on rehearing); Wainwright v. Goode, 464 U.S. 78, 86-87, 104 S.Ct. 378, 383, 78 L.Ed.2d 187 (1983). The jury also found beyond a reasonable doubt that three other aggravating circumstances existed: (1) the Defendant was previously convicted of a felony involving the use or threat of violence, (2) the murder was especially heinous, atrocious, or cruel, and (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.

¶61 The jury was specifically instructed to consider whether the following mitigating evidence applied to the facts of the case: Appellant is likely to be rehabilitated; Appellant cooperated with authorities; and Appellant has been a compliant and non-violent prisoner in the past, and he is able to conform to rules of conduct while in the prison environment.

¶62 The evidence clearly indicated that Appellant had been previously convicted of the prior violent felony crime of assault with intent to rape. In the present case, Appellant forcibly beat and raped Cindy Marzano, then either strangled, smothered, or drowned her. The evidence further demonstrated that in the past, Appellant had been punished following similar incidents. The cause of death in this case was separate from and not a direct result of the rape. Appellant tried to dispose of Marzano's body to avoid detection. The evidence clearly supported the remaining aggravating circumstances.

¶63 The mitigating evidence is unconvincing and weak. Upon reweighing these remaining aggravating circumstances against the mitigating evidence, we find the death penalty is supported. Had the jury considered only these aggravating circumstances, we find beyond a reasonable doubt the jury would have sentenced Appellant to death.

¶64 In Proposition IX, Appellant complains for the first time on appeal that certain victim impact evidence was improperly admitted. The only victim impact evidence offered was the written statement of the victim's husband. In a very brief statement, Mr. Marzano told of meeting his wife when she was 18. He related that she had a 13-month-old son, at the time, and he thought she was the most beautiful woman he had ever seen. That she was an [17 P.3d 1036] "old-fashion country girl, very caring and loving" and "that everyone loved to be around her." He stated that he wanted to share "the rest of my life with [her]." He told of the birth of two daughters and the death of the youngest. He said, "The hardest part of dealing with the death of my Michelle is watching my children grow up without a mother . . . ." He asked for "justice to be done for Michelle and her children."

¶65 The evidence properly fits within the strictures of Cargle v. State, 1995 OK CR 77, ¶ 75, 909 P.2d 806, 828, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996), providing a quick glimpse of the victim and "showing how the victim's death is affecting or might affect the victim's survivors, and why the victim should not have been killed." Id.

¶66 There was no error here, and not surprisingly, Appellant conceded at trial that the content of the written statement of Mr. Marzano was proper. Appellant further conceded at trial that he had proper notice of the testimony. These concessions were made on the record and outside the hearing of the jury. When the trial court inquired of counsel if any further record needed to be made, Appellant made no objection based upon the admissibility of the evidence as it relates to Title 12 O.S.1991, § 2403, and made no objection that the court had not made a finding that evidence of at least one aggravating circumstance was present on the record. Mr. Marzano's statement was presented to the jury at the close of the State's second stage case in chief. We find that there was evidence supporting the aggravators alleged by the State, and we further find that the statement was not "so unduly prejudicial that it render[ed] the trial fundamentally unfair." Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720. We find no error in the victim impact evidence offered in this case.

¶67 Appellant further complains that victim impact evidence operates as an improper "super aggravator," is irrelevant, and violative of the Eighth Amendment to the United States Constitution. We have previously considered and rejected such claims and see no reason to revisit them. Mollet v. State, 1997 OK CR 28, ¶ 47, 939 P.2d 1, 12-13, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998).

¶68 In Proposition XII, Appellant complains that there was insufficient evidence to support the finding that the murder was committed for the purpose of avoiding lawful arrest or prosecution. "To support a finding of this aggravating circumstance the State must prove the defendant killed in order to avoid arrest or prosecution." Powell v. State, 1995 OK CR 37, ¶ 66, 906 P.2d 765, 781, cert. denied, 517 U.S. 1144, 116 S.Ct. 1438, 134 L.Ed.2d 560 (1996). A defendant's intent is critical to this proof and can be inferred from circumstantial evidence. Romano v. State, 1995 OK CR 74, ¶ 73, 909 P.2d 92, 199, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996). Furthermore, there must be a predicate crime, separate from the murder, for which the defendant seeks to avoid arrest or prosecution. Id.

¶69 Here, there are sufficient facts to support this aggravating circumstance beyond a reasonable doubt. See Salazar v. State, 1996 OK CR 25, ¶ 7, 919 P.2d 1120, 1123, cert. denied, ___ U.S. ___, 120 S.Ct. 226, 145 L.Ed.2d 190 (1999). The evidence established that Appellant and the victim were acquaintances and the victim was beaten and strangled, smothered, or drowned after sexual intercourse with Appellant. The evidence further demonstrated that in the past Appellant had been punished following similar incidents. The cause of death in this case was separate from and not a direct result of the rape.

¶70 In Proposition XI, Appellant claims that the "especially heinous, atrocious or cruel," the "continuing threat to society," and the "committed for the purpose of avoiding or preventing a lawful arrest or prosecution" aggravating circumstances are unconstitutional.

¶71 In the case of Woods v. State, 1998 OK CR 19, ¶ 57, 959 P.2d 1, 15, we held:

"This Court has repeatedly rejected arguments on the unconstitutionality of the "continuing threat" aggravating [17 P.3d 1037] circumstance and we are not persuaded to alter our prior position. See Cooper v. State, 889 P.2d 293, 315 (Okl.Cr. 1995); Malone v. State, 876 P.2d 707, 715-16 (Okl.Cr. 1994), and cases cited therein; Walker v. State, 887 P.2d 301, 320 (Okl.Cr. 1994), cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995)."

¶72 We held in Workman v. State, 1991 OK CR 125, ¶¶ 24-25, 824 P.2d 378, 383, cert. denied, 506 U.S. 890, 113 S.Ct. 258, 121 L.Ed.2d 189 (1992),

"Appellant also asserts that the other aggravating circumstance found by the jury, that 'there exists a probability the defendant would commit criminal act[s] of violence that would constitute a continuing threat to society,' is both unconstitutionally vague and unsupported by the evidence. . . . This Court has repeatedly upheld the validity of this particular circumstance. Rojem v. State, 753 P.2d 359, 369 (Okl.Cr. 1988) [cert. denied, 488 U.S. 900, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988)]. See also Barefoot v. Estelle, 463 U.S. 880, 896-97, 103 S.Ct. 3383, 3396, 77 L.Ed.2d 1090, 1106 (1983) and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)."

¶73 We held in Cannon v. State, 1995 OK CR 45, ¶ 43 & n.54, 904 P.2d 89, 105 & n.54, that the aggravating circumstance "especially heinous, atrocious, and cruel" as limited by this Court is not unconstitutional for vagueness.

¶74 We have repeatedly rejected attack on the constitutionality of the "avoid arrest" aggravating circumstance. Alverson v. State, 1999 OK CR 21, ¶ 75, 983 P.2d 498, 520, cert. denied, ___ U.S. ___, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000); Charm v. State, 1996 OK CR 40, ¶ 73, 924 P.2d 754, 772, cert. denied, 520 U.S. 1200, 117 S.Ct. 1560, 137 L.Ed.2d 707 (1997). We see no reason to revisit the issues based upon the facts of the case.

¶75 In Proposition X, Appellant complains for the first time on appeal that the trial court improperly gave an instruction which inadvertently omitted the word "physical" from the phrase "serious physical abuse." OUJI-Cr (2d) 4-73 requires that the latter phrase be given to the jury. We have so held on many occasions. Turrentine v. State, 1998 OK CR 33, ¶ 67, 965 P.2d 955, 975; cert. denied, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998) Mollett v. State, 1997 OK CR 28, ¶ 56, 939 P.2d at 14; Johnson v. State, 1996 OK CR 36, ¶ 40, 928 P.2d 309, 318; Richie v. State, 1995 OK CR 67, ¶ 43, 908 P.2d 268, 278, cert. denied, 519 U.S. 837, 117 S.Ct. 111, 136 L.Ed.2d 64 (1996). The State correctly points out that there was no objection to the instruction as given and the error is waived; however we must examine for "plain error." Turrentine, 1998 OK CR 33, ¶ 67, 965 P.2d at 975.

¶76 "Plain error" is error "which go[es] to the foundation of the case, or which take[s] from a defendant a right which was essential to his defense." Simpson, 1994 OK CR 40, ¶ 12, 876 P.2d at 695; see also Rea v. State, 3 Okl.Cr. 281, 105 P. 386 (1909) (phrase first used by this Court).

¶77 In Johnson, 1996 OK CR 36, ¶ 41, 928 P.2d at 318, we said:

"From a practical semantic standpoint, when we compare the phrase "serious physical abuse", with the phrase "serious abuse", we find the term "physical" does not address the degree of suffering required to satisfy the limitation. Rather, it addresses the type of harm which may satisfy this aggravating circumstance. In contrast, the degree of suffering is addressed by both of the words which frame it. The harm must be both serious and rise to the level of abuse. Those words control the standard of proof, and they were given to the jury intact."

In Richie, 1995 OK CR 67 ¶ 43, 908 P.2d at 278, we said:

"This court must determine whether the failure to use the word 'physical' in the instruction did, in fact, lessen the standard of proof required to find the aggravator of 'heinous, atrocious or cruel.' We find that Instruction No. 9, as given to the jury, properly channeled the sentencer's discretion in imposing the death penalty. Furthermore, we adjudge the phrase 'serious abuse' to be commonly interpreted as referring to physical abuse in the present context."

[17 P.3d 1038]

Further, in Hawkins v. State, 1994 OK CR 83, ¶ 44, 891 P.2d 586, 597, cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995), we defined torture as including "great physical anguish" or "extreme mental cruelty."

¶78 Under the facts of this case, we find that there was sufficient evidence to support torture under both definitions ("extreme mental cruelty" or "great physical anguish") and to support "serious physical abuse." Because all of the above are available to a jury in the disjunctive, and because there is no lessening of the burden of proof, there is no error.

PROSECUTORIAL MISCONDUCT

¶79 In Proposition VI, Appellant complains that he was denied due process of law because of prosecutorial misconduct. Witness Sidney Byrd testified that Appellant had introduced himself as "Killer Karl."

¶80 Myers argues that the reference was to what the news media called him. The State argues that Appellant preferred to be called Killer Karl. Either conclusion could conceivably be reached by persons hearing the testimony in question. The State's argument was within the range of permissible inferences or deductions arising from the evidence and was not error. Holt v. State, 1981 OK CR 58, ¶ 36, 628 P.2d 1170, 1171; Glidewell v. State, 1981 OK CR 39, ¶ 4, 626 P.2d 1351, 1353; Brown v. State, 1988 OK CR 49, ¶ 12, 751 P.2d 1078, 1080.

¶81 References to Appellant as "Killer Karl" during closing argument were likewise supported by the evidence under the same authorities. Further, Appellant did not object to any of these instances at trial. "This failure to object waives any error on appeal, except those constituting fundamental or plain error." VanWoundenberg v. State, 1986 OK CR 81, ¶ 15, 720 P.2d 328, 334, cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986); Nolte v. State, 1994 OK CR 81, ¶ 26, 892 P.2d 638, 645.

¶82 The repeated use of the reference "Killer Karl" (some 28 times during first stage of closing argument) gives rise to some concern as to the purpose sought to be accomplished by the prosecutor and is not condoned by this Court. However, we find no undue prejudice to Appellant and find no error, much less any plain error. Tibbs v. State, 1991 OK CR 115, ¶ 25, 819 P.2d 1372, 1380.

¶83 Appellant complains that the prosecutor misstated the evidence in the second stage closing argument. The prosecutor argued that Appellant was proud of the nickname "Killer Karl." We find this to be a reasonable comment based upon the evidence as discussed above.

¶84 Appellant argues that the prosecutor distorted the evidence when he argued, "Well, maybe a felon in possession of a weapon doesn't seem like a big deal compared to some of these other things, but Karl Myers in possession of a weapon I think would be a big deal to Shawn Williams." The prosecutor was referring to the shooting death of Shawn Williams and was not asserting that the gun found in defendant's possession was the same one he used to kill Williams. The prosecutor was simply arguing that possession of any gun by Appellant was not a minor offense. This argument, we find to be within the range of permissible inferences arising from the evidence. Further, there was no objection to these comments by Appellant and error is waived on appeal in the absence of plain error, which we do not find in this case.

¶85 Appellant complains for the first time on appeal that the prosecutor improperly evoked sympathy for the victim in his second stage closing argument when he said, "Think about what it would be like struggling with a person," and asked the jury to consider "what had to be going through her mind at the time." These arguments were made with reference to the especially heinous, atrocious, or cruel aggravating circumstance and in that context were not improper. Finding no error, we find no denial of due process.

EFFECTIVE ASSISTANCE OF COUNSEL

¶86 Appellant argues that plain error occurred when Dr. Ronald Distefano testified, [17 P.3d 1039] without an objection from Appellant's trial counsel. We found no error in this testimony as discussed with regard to Appellant's Proposition IV and it is therefore impossible to conclude that Appellant's trial counsel was ineffective under the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance in this instance was not deficient.

¶87 Appellant complains that his trial attorney provided constitutionally defective representation in not objecting to the prosecutor's reference to him as "Killer Karl." As set forth in our resolution of Appellant's Proposition VI, we found no error and thus are unable to find deficient performance under Strickland, supra. Likewise, we found the testimony of Sheriff Sharp to be harmless (Proposition VII) and the victim impact evidence of Mark Marzano (Proposition IX) to be proper and find no deficiency in trial counsel's performance.

¶88 Appellant has filed an Application For Evidentiary Hearing on Sixth Amendment Claims pursuant to Rule 3.11 (B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2000). Affidavits attached thereto are offered to meet the burden set forth in the above rule that "the application and affidavits must contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective." Id.

¶89 The affidavits provided are from jail house witnesses incarcerated with Appellant and the State's witness, Sydney Byrd. All of the affidavits mirror the testimony of Ray Eugene Minnerup, an inmate residing with Myers during his incarceration, who testified that Myers did not talk to other inmates about this case.

¶90 Myers' impeachment of Byrd's testimony with Byrd's past criminal history would lose some of its impact if Myers had countered with multiple jail house witnesses subject to the same type of impeachment, all of whom would testify substantially the same as Minnerup. There certainly is no hint of a "strong possibility trial counsel was ineffective" in failing to call these additional cumulative and inherently dangerous witnesses.

¶91 An affidavit by Michael Yates, one of these inmates, includes additional statements concerning witness Byrd. Yates claimed Byrd told him he got out of jail because of his willingness to testify. The evidence at trial clearly established that Byrd got out of the county jail after he agreed to testify, but only to be sent to California to face a probation violation allegation, which was why he was originally in jail. Yates' affidavit offers no new information not already in the record. Yates supposedly heard Detective Elkins state to Byrd that "[y]ou don't have nothing to worry about," the meaning of which is unclear even in the Yates affidavit. Appellant has failed to establish the need for an evidentiary hearing, and the application is denied.

CUMULATIVE ERROR

¶92 Finally, Myers argues that the errors, taken together, should result in the reversal of his conviction and sentence. We have reviewed the case to determine the effect, if any, of Myers' alleged accumulation of error. We find no such accumulation of errors. Woods v. State, 1984 OK CR 24, ¶ 10, 674 P.2d 1150, 1154.

MANDATORY SENTENCE REVIEW

¶93 Title 21 O.S.1991, § 701.13, requires this Court to determine "[w]hether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance." Sufficient evidence existed to support the finding of the four statutory aggravating circumstances. After reviewing the entire record in this case, we find that the sentence of death was not imposed because of any arbitrary factor, passion, or prejudice. The facts of this case simply warranted the penalty of death.

¶94 We find no error warranting reversal of Myers' conviction or sentence of death for first degree murder, therefore, the Judgment and Sentence of the trial court is, hereby, AFFIRMED.

OPINION BY: LILE, J.
STRUBHAR, P.J.: CONCURS
LUMPKIN, V.P.J.: CONCURS
JOHNSON, J.: CONCURS
CHAPEL, J.: CONCURS IN RESULT

FOOTNOTES

1 Although Appellant claims in his reply brief that Juror Smith was prejudiced, a review of the entire record of his voir dire examination does not support that assertion.

2 The United States Supreme Court recently reiterated its holding in Ross, supra, in applying the same rule to federal trials. United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 780-81, 145 L.Ed.2d 792 (2000).

3 But cf., Taylor v. State, 1982 OK CR 8, ¶ 8, 640 P.2d 554, 557 (there are five exceptions to the rule of Section 2404(B)); and more recently, Hopper v. State, 1987 OK CR 78, ¶ 10, 736 P.2d 538, 540-41.

4 This case involves both direct and circumstantial evidence of guilt and the Spuehler test, supra, applies. Even if the case were based solely upon circumstantial evidence we should apply Spuehler and not the "reasonable hypothesis" test of Mitchell v. State, 1994 OK CR 70, ¶ 33, 884 P.2d 1186, 1199. There is simply no logical reason for continuing to treat the situations differently. The United States Supreme Court has long since abandoned the idea that circumstantial evidence is somehow less reliable than direct evidence. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-138, 99 L.Ed. 150 (1954); see White v. State, 1995 OK CR 15, ¶ 6, 900 P.2d 982, 994 (Lumpkin, J., specially concurring).

5 In this trial, Judge Post conducted what amounted to an in camera reliability hearing as to the admissibility of the testimony of a "jailhouse informant." The investigating officer was extensively examined concerning any deals with the witnesses. The witness was extensively examined concerning his credibility and proposed testimony concerning Appellant's statements. The court made the following finding: "I find, first of all, there has been no benefit given or derived, advantage derived, to this witness in exchange for his testimony from the State or anyone acting on behalf of the State and would note for the record that he is incarcerated at this time in the Rogers County Jail. I find the testimony of the witness to be credible and reliable and will order that the testimony only with respect to incriminating statements made on the death of Cindy Marzano will be admitted to the jury by way of testimony before them from this witness."

*****

CHAPEL, J., CONCURRING IN RESULT:

[17 P.3d 1040]

¶1 I concur in result with the majority's decision to affirm Myers's conviction for first degree murder. In doing so, I disagree with the majority's analysis and resolution of the issue raised in Proposition Two. The trial court erroneously admitted other crimes evidence of previous, unrelated sexual assaults to show motive and intent. Ten to twenty years before the charged crime, Myers fondled, attempted rape (without penetration) and attempted oral sex with two young women; one was twelve years old and one was thirteen. Myers was convicted and imprisoned after the first incident but was not charged after the second occurrence. These previous crimes have no relevance to charges that Myers raped and murdered an adult woman. The majority opinion erroneously holds that the evidence was admissible under our current law.

¶2 However, the majority does not rely on current law to dispose of this case. Instead, without explicitly saying so, the majority holds that Oklahoma should expand its use of other crimes evidence in sex crimes cases. The majority states: "[T]he evidence would be admissible under the "greater latitude rule" recognized today for cases involving sexual assaults."1 This can only be interpreted as an adoption of the "greater latitude" rule. The majority would allow "greater latitude" to admit any evidence of other sexual assaults, whether or not the evidence falls within any recognized statutory exception to the general prohibition against other crime evidence.2 The majority recognizes the "unavoidable potential for proving propensity" inherent in this evidence.3 The majority apparently fails to realize that Oklahoma already grants the State latitude in introducing evidence of similar crimes in sexual abuse cases.4 Further expanding this exception to the prohibition against other crimes serves no legitimate purpose. It would only ensure that the State may use evidence of previous sexual encounters to persuade a jury to convict because a defendant is generally depraved or simply has a propensity to commit sex offenses. This is precisely what the Legislature has forbidden Oklahoma courts to allow.

¶3 The majority's attempt to expand the other crimes exception is not only ill-conceived, it is completely unnecessary in this case. The trial court erroneously admitted the other crimes evidence here. However, that error does not require reversal. Strong circumstantial evidence convicted Myers. A well and uninjured victim arranged to meet him after she got off work, and they were seen at a restaurant. She was found injured and dead, with Myers's semen in her vagina, less than four hours later. Myers admitted meeting the victim and even suggested they had consensual intercourse. Given the State's evidence against him, Myers's story [17 P.3d 1041] did not exclude every reasonable hypothesis other than guilt.5 The evidence that Myers had previously assaulted two girls was irrelevant, but it did not unduly prejudice him. The jury could have completely disregarded that evidence in determining Myers's guilt, and its erroneous admission neither resulted in a miscarriage of justice nor substantially violated a constitutional or statutory right.6 Since this error does not require relief, I can only conclude the majority is overreaching in order to unnecessarily expand the other crimes exception beyond the bounds of the statute or case law.

¶4 I also concur in result with the decision to uphold the death sentence. Evidence in second stage showed that Myers confessed to a Kansas murder after the Kansas sheriff promised him immunity. I agree with the majority's conclusion that this confession was inadmissible. I believe this evidence was highly prejudicial. Jurors had just found Myers guilty of a brutal rape and murder. They were improperly told not only that Myers had confessed to killing another person, but that he got away with it. However, the jury also heard evidence that Myers was probably responsible for the rape and death of another young woman.7 I believe this properly admitted evidence of another murder blunted the prejudicial impact of the Kansas confession. As I agree, the error did not contribute to the imposition of the death sentence, I concur in result.

FOOTNOTES

1 Slip op. at 11 (emphasis added).

2 The majority relies on State v. Davidson, 613 N.W.2d 606 (Wis. 2000), a case confirming Wisconsin's longstanding exception granting greater latitude in other crimes evidence to cases involving sexual assault of a child. A substantial minority of states grants some form of latitude for evidence of other crimes in sexual offense cases. Of these, the majority focus on sex crimes against children. Several states allow this evidence in any sexual offense case to explain motive and intent by showing previous propensity for sexual offenses, or on the general principle that such offenses should have liberal standards of proof. See, e.g., State v. Roscoe, 910 P.2d 635, 642 (Ariz. 1996) (bad acts involving sexual aberration admissible to show propensity); Bixler v. State, 537 N.E.2d 21, 23 (Ind. 1989) ("depraved sexual instinct"); State v. Frazier, 344 N.C. 611, 476 S.E.2d 297, 300 (1996) (court gives liberal allowance of similar offenses in sex crimes cases); State v. Tobin, 602 A.2d 528, 531 (R.I.1992) ("lewd disposition or intent").

3 Slip op. at 11.

4 The State may introduce evidence that the defendant has committed similar acts against different victims at different times if the circumstances show a system or plan characterized by a peculiar method of operation. See, e.g., Eberhart v. State, 727 P.2d 1374, 1479 (Okl.Cr.1986); Little v. State, 725 P.2d 606, 607 (Okl.Cr.1986); Driver v. State, 634 P.2d 760, 762 (Okl.Cr.1981); Lambert v. State, 609 P.2d 785, 787 (Okl.Cr.1980); Turnbow v. State, 451 P.2d 387, 390 (Okl.Cr.1969).

5 Miller v. State, 1998 OK CR 59, 977 P.2d 1099, 1107, cert. denied, ___ U.S. ___, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999).

6 20 O.S.1991, § 3001.1.

7 This crime was unadjudicated at the time of Myers's trial. I continue to reject the use of unadjudicated crimes to support the continuing threat aggravating circumstance, and concur in result on the basis of stare decisis.

 
 


Karl Lee Myers, 2003.

 

 

 
 
 
 
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