Dodd v. State ( 2000 )

OPINION

JOHNSON, Judge:

¶ 1 Rocky Eugene Dodd, Appellant, was tried by a jury in the District Court of Oklahoma County, Case No. CF-94-7724, before the Honorable Nancy L. Coats. Dodd was convicted of two counts of First Degree Malice Aforethought Murder, in violation of 21 O.S.1991, § 701.7. After finding the existence of three aggravating circumstances for Count I and four aggravating circumstances for Count II, the jury set punishment at death for each murder conviction.¹ The trial court sentenced Dodd accordingly. Dodd now appeals.

¶2 Dodd and the victims, Kari Sloniker and Shane Mclnturff, were next door neighbors in apartments located near the University of Central Oklahoma (UCO) in Edmond, Oklahoma. At approximately noon on Saturday, November 5, 1994, Dodd came to Shane’s apartment and gave him a check for $70.00. Between 5:00 and 6:00 p.m. that same day, Dodd brought Shane a second check for $70.00. Brian Brown testified he saw both checks from Dodd in Shane’s wallet at this time. He further testified that the checks were for the purchase of “crank,” also known as methamphetamine. Brown left the apartment at approximately 6:30 p.m.

¶3 Later that evening, Brown, Lisa Eu-banks, Shane and Kari went to The Pool Room in Oklahoma City to play pool. Before leaving, the group smoked marijuana and snorted and smoked crank in Kari and Shane’s apartment. Eubanks testified at trial that the marijuana and crank were kept in a box which Kari and Shane usually hid under the couch in the living room. Eubanks stated that she first saw approximately one gram of crank in the box and estimated the group used approximately one-quarter gram of the substance prior to leaving to play pool. The drug box was placed back under the couch prior to the group’s departure.

¶4 They arrived at The Pool Room at approximately 10:30 p.m. and left at approximately 1:30 a.m. Kari and Shane invited Eubanks to watch a movie and spend the night at their apartment. Consequently, Brian Brown dropped off the group at Kari and Shane’s apartment and returned to his home. Upon entering the apartment, Shane asked Kari to roll a joint. When Kari pulled the box from under the couch, the drugs were missing. Shane became extremely angry and loud, kicking the common wall between his and Dodd’s apartment. Shane was shouting and accusing Dodd of stealing the drugs. Shane eventually went next door to Dodd’s apartment and an argument ensued over the missing drugs. Soon after Shane’s return to his apartment, Dodd followed and told Shane to keep the noise down because his child was trying to sleep.

¶ 5 After Dodd left the apartment, Shane and Kari began discussing the possibility of cashing Dodd’s checks and telling Dodd’s wife that he was using drugs. They believed this would cause problems for Dodd as his wife was unaware he was using drugs again. Due to the “intense” atmosphere at the apartment, Eubanks left at approximately 3:00 a.m. and returned to her dormitory room. This was the last time anyone saw Shane and Kari alive.

¶ 6 Dodd’s trip to Shane’s apartment and the harsh words exchanged between the two was also witnessed by Dennis Kersh, who lived in a nearby apartment. At approximately 2:00 a.m., Kersh was awakened by a loud noise outside. Believing someone might have hit his car, Kersh went outside to investigate. After returning to Ms bed, Kersh heard someone yell “flick” from the area of Shane’s apartment. Kersh, looking out his window, saw Dodd run from his apartment into Shane’s apartment. As Dodd entered the apartment, he yelled “what the fuck is going on.”

¶ 7 Later that Sunday, Brian Brown found Shane’s pay check in his car. At approximately 5:00 p.m., Brown went by Shane’s apartment to return the paycheck. No one answered when Brown knocked on the door. Dodd was sitting outside his apartment and stated that he had not seen Shane or Kari that day. Brown drove by again at 6:30 p.m.; seeing no lights, he did not stop.

¶ 8 On Monday, November 7th, Dodd stated he went by Shane’s apartment to give him a ride to work. No one responded to his knocks and Shane did not report to work that day. Robert Mclnturff, Shane’s father, returned home from work at approximately 5:30 p.m. and found four messages from Dodd on his answering machine. The messages were regarding Shane’s failure to respond to Dodd’s knocks at his apartment door that morning. Concerned, Mr. Mcln-turff went to check on Shane. He arrived at the apartment at approximately 5:50 p.m. Mr. Mclnturff ran into Dodd as he reached the apartment. Dodd again stated that he had not heard from Shane or Kari that entire day. Unable to open the door to the apartment, Mr. Mclnturff and Dodd obtained a pass key from the landlord.

¶ 9 Upon entering the apartment, Mr. Mclnturff observed two bodies on the bedroom floor. Mr. Mclnturff testified that he did not turn on the bedroom light and that Dodd remained near the front door. Mcln-turff yelled to Dodd to call 911. Both bodies were lying face down, next to each other, and there was a great deal of blood surrounding the victims. Because of the location and position of the bodies, Mr. Mclnturff stated that he was unable to determine the manner in which Shane and Kari were Mlled. He further noted that Shane’s wallet was lying open in the living room.

¶ 10 Keith Randolph, a City of Edmond fireman, was the first of the emergency personnel to reach the scene. Randolph was unable to tell how the victims died because of the position of the bodies. However, he told EMSA emergency technicians that he believed the victims were killed by gunshots to the head. James Towers, an EMSA technician, was also unable to tell the maimer in which the victims were killed. When Edmond Police Officer Lindell MeLemore arrived at the scene, he was told that it appeared the victims had been shot. Similarly, when Steve Slater, an investigator with the Medical Examiner’s Office, arrived at the scene at approximately 10:30 p.m., he was unable to tell the manner of death until he rolled the bodies over for further examination. At this time, it became apparent the victims’ throats had been slashed. Conversely, Rocky Yardley, a technical investigator with the Edmond Police Department, examined the bodies without moving them at approximately 9:25 p.m., and found that Shane’s throat had been cut.

¶ 11 The earliest that any of the emergency personnel, police, or techmeal investigators at the scene were able to tell the manner in which the victims had been killed was 9:25 p.m; In a key piece of evidence, Dodd spoke with his supervisor at Jetta Products at 6:41 p.m. and informed him that Shane and his wife had been murdered and that their throats had been cut. Additionally, on the same day the bodies were discovered, Dodd had returned a hunting knife he had borrowed from a co-worker. The medical examiner testified at trial that the victims’ wounds were caused by a weapon with a thick, heavy blade.

¶ 12 Further investigation of the crime scene revealed the trace presence of blood in and around the sink in the victims’ bathroom, as if someone had cleaned their hands in the sink. Moreover, a towel appeared to be missing from the bathroom. The missing towel was found in the dumpster located in the apartment complex. A hair found on the towel was consistent with Dodd’s hair. DNA testing was also conducted on a blood stain found on the towel.² Both victims could not be excluded as possible contributors of the DNA on the towel stain.

¶'13 When questioned about the two $70.00 checks Dodd had given Shane, Dodd claimed he had loaned Shane the money to buy a car from Shane’s uncle. Dodd stated that Shane had returned the checks to him on Saturday afternoon,sometime between 3:00 p.m. and 5:00 p.m., because the uncle was selling the car to someone else. Dodd said he had torn the checks into four or five pieces and placed them in the trash. No checks or check remnants were found. Furthermore, Robert Mclnturff testified he had made arrangements with Shane to loan Shane money to buy a car from his brother in Arkansas.

¶ 14 While incarcerated in the Oklahoma County Jail awaiting trial, Dodd spoke with another inmate, Kenneth Bryant. Bryant testified that while watching the O.J. Simpson trial on television in the jail common area, Dodd appeared interested in the DNA portion of the trial and asked Bryant if he thought police could obtain DNA evidence if blood got on a nugget ring or the velcro portion of a watch band. Bryant testified he asked Dodd if he committed the murders to which Dodd replied, “Yes ... but proving it will be a different thing.” Dodd allegedly told Bryant that he had gone to the victims’ apartment to retrieve the checks he had given Shane and to take whatever drugs were there and that things “went wrong.” Dodd explained that he did not want his wife to find out about the checks. He was worried she would find out he was using drugs. Bryant further testified that Dodd stated he figured his co-worker, who had loaned him the hunting knife, would know that he had the murder weapon.

¶ 15 On appeal, Dodd raises eighteen propositions of error. However, finding error requiring reversal, we need only address Proposition IV(E) which deals specifically with informant Bryant’s testimony. After Dodd’s preliminary hearing, Bryant recanted his testimony that Dodd had admitted killing the victims. The recantation occurred during an interview with investigators for another capital murder case. Bryant later reasserted the truthfulness of his original testimony. Bryant testified at trial about his recantation and the circumstances surrounding the recantation. Bryant explained that he told the investigator “what she wanted to hear” in hope that she would arrange for him to get an O.R. bond³ so he could get out of jail and return to his dying wife.

¶ 16 Proposition IV(E) deals specifically with two letters written by Bryant regarding his recantations. Defendant’s Exhibit 20 is a letter dated August 29, 1995, written to Stephanie Brown, an investigator involved with the Carter murder ease. In this letter Bryant expresses his belief that regardless of his recantations, he will still receive favorable treatment from the District Attorney’s Office in exchange for his testimony in the Dodd and Carter capital murder cases. Defendant’s Exhibit 21 is a letter also dated August 29, 1995, written to an assistant in the District Attorney’s Office regarding the Carter murder case. Bryant discusses in this letter his long history of testifying in first degree murder tiñáis in Oklahoma County. He states he is no longer “afraid ... and no longer [has] to lie ... for anyone in this world — especially the OK County D.A.’s Office.” He further states, “The testimony from me in this case about a confession that you both asked & wanted from me — you’ll not get — because as you very well know— there wasn’t one.”

¶ 17 During the trial, the State objected to the admission of these letters and the court sustained the objection finding the letters had not been properly provided in discovery. Dodd contends in Proposition IV(E) that the trial court improperly prevented defense counsel from impeaching informant Bryant with the prior inconsistent statements contained in these letters. We agree.

¶ 18 Title 22 O.S.Supp.1996, § 2002(B)(3)(a) provides that upon the prosecutor’s request, the defendant shall allow him access to inspect any paper or document in the defendant’s possession which the defendant intends to offer in evidence. Such a request was made by the prosecution in this case. However, even if the trial court properly found a discovery violation,the trial court’s ruling barring use of Defendant’s Exhibits 20 and 21 was an excessive sanction under the circumstances of this case. See Allen v. State, 1997 OK CR 44, 944 P.2d 934, 937. The excluded evidence was admissible for impeachment purposes pursuant to 12 O.S.1991, § 2613(B). Bryant’s credibility was a pivotal issue in this case. The evidence in this ease was wholly circumstantial and Bryant was a key witness for the State. To deny Dodd the opportunity to folly attack Bryant’s credibility was error. Thus, we must determine whether this error requires reversal.

¶ 19 To determine whether or not this error is. harmless, we look to the analysis set forth in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Five factors need to be considered: “(1) the importance of the testimony, (2) its cumula-tiveness, (3) the presence or absence of corroborative or contradicting evidence, (4) the extent of cross-examination allowed, and (5) the overall strength of the State’s case.” Omalza v. State, 1995 OK CR 80, 911 P.2d 286, 308. See also Beck v. State, 1991 OK CR 126, 824 P.2d 385, 390.

¶ 20 In all capital murder cases, the trial judge files with this Court a written trial judge’s report. This report has statements relative to the trial. The trial judge was asked the question, “although the evidence suffices to sustain the verdict, does it foreclose all doubt respecting the defendant’s guilt?” The judge answered, “no.” The judge further noted that in the second stage of the trial, the victim impact statements were very prejudicial and inflammatory, and the judge noted that in her opinion the jury was influenced by passion or prejudice or other arbitrary factors in imposing the sentence. Although this Court is not bound by the judge’s statements, they are helpful on a close case such as this one. There are two primary pieces of evidence as to guilt. One was the statement by Appellant as to how the deaths occurred prior to the time that the medical examiner determined such fact. The other evidence consisted of statements by Appellant to the jailhouse informant.

¶ 21 The way the deaths occurred was more of a gangland type execution. There is a question as to how one person could have performed the killings involved in this fact situation without assistance from another person.

¶ 22 The second piece of concrete evidence has to do with statements the Appellant supposedly made to a jailhouse informant. Courts should be exceedingly leery of jailhouse informants, especially if there is a hint that the informant received some sort of a benefit for his or her testimony. This problem is even greater here when we look at the error that is discussed above as to the withdrawal of the statements by the informant and what the informant has to say about promises made to the informant. The Court should look to how many times the informant has testified before for the District Attorney’s office. Here we very clearly have two letters that may or may not be true but should have been in evidence. Consequently, under the unique circumstances of this case, we find Dodd’s murder conviction must be reversed.

¶ 23 The Constitution of the United States prohibits a jailhouse informant from testifying to a defendant’s statements when the informant works for the government and “deliberately elicits” or coerces statements related to a crime for which an accused has been indicted.⁴ While the state action affected by such a government/informant relationship triggers careful constitutional scrutiny, it permits equally insidious reliability problems to escape attention. Consider the more common example of the informant who does not work for the government when procuring incriminating statements. In these cases, there is no state action and therefore no constitutional concern.⁵ But, this distinction matters little in terms of informant reliability or trustworthiness.⁶ Irrespective of whether initially contacted by the state, most informants relay incriminating statements to the state in expectation of benefit in exchange.⁷

¶ 24 Today we adopt a procedure to ensure complete disclosure so that counsel will be prepared to cross-examine an informant-witness.⁸ The following procedures shall apply to all jailhouse informant testimony not specifically excluded by the United States Constitution.

¶ 25 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.

¶ 26 In all cases, where a court admits jailhouse informant testimony, OUJI-CR 2d. 9^13 (amended as follows) shall be given:

The testimony of an informer who provides evidence against a defendant must be examined and weighed by you with greater care than the testimony of an ordinary witness. Whether the informer’s testimony has been affected by interest or prejudice against the defendant is for you to determine. In making that determination,you should consider: (1) whether the witness has received anything (including pay, immunity from prosecution, leniency in prosecution, personal advantage, or vindication) in exchange for testimony; (2) any other case in which the informant testified or offered statements against an individual but was not called, and whether the statements were admitted in the case, and whether the informant received any deal, promise, inducement, or benefit in exchange for that testimony or statement; (3) whether the informant has ever changed his or her testimony; (4) the criminal history of the informant; and (5) any other evidence relevant to the informer’s credibility.

¶27 Upon review, we are unable to find this error harmless beyond a reasonable doubt. Defendant’s Exhibit 21 directly called into question the truthfulness of Bryant’s testimony. It further demonstrates the pressure under which Bryant may have been to lie for the State. The information contained in Defendant’s Exhibit 21 was not cumulative to any other impeachment evidence presented. While defense counsel was able to impeach Bryant with his numerous convictions, his prior history as an informant, and by calling into question Bryant’s possible motives for testifying, the State’s case was far from overwhelming. Consequently, under the unique circumstances of this case, we find Dodd’s murder convictions must be REVERSED.

¶28 The judgment and sentences of the trial court are REVERSED and the matter remanded to the district court for NEW TRIAL.

LAYDEN, J., concurs. STRUBHAR, P.J., and CRAIG, J., specially concurring. LUMPKIN, V.P.J., concurs in parf/dissents in part. JOHNSON, J., joins in STRUBHAR’S specially concurring.

1 . As to Count I, the jury found the existence of the following aggravating circumstances: (1) Dodd was previously convicted of a felony involving the use or threat of violence to the person; (2) Dodd knowingly created a great risk of death to more than one person; and (3) the existence of a probability that Dodd would commit criminal acts of violence that would constitute a continuing threat to society. As to Count II, the jury found the following aggravating circumstances: (1) Dodd was previously convicted of a felony involving the use or threat of violence to the person; (2) Dodd knowingly created a great risk of death to more than one person; (3) Dodd committed the murder for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) the existence of a probability that Dodd would commit criminal acts of violence that would constitute a continuing threat to society.

2 . DNA could not be extracted from the hair found on the towel.

3 . Own Recognizance Bond.

4 . See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302(1991) (defendant's confession to jailhouse informant was motivated by fear of physical violence and informant’s promise of protection found to be coerced—error to admit confession but admission of coerced confession could be harmless error); Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (government informer permitted to question a prisoner regarding an uncharged crime); Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (Sixth Amendment does not prohibit the admission of statements not elicited by the informant); United States v. Henry, 441 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (defendant’s statements inadmissible because they were "deliberately elicited” by a government informer regarding defendant’s pending charges.) See generally White, Regulating Prison Informers Under the Due Process Clause, 1991 S.Ct.Rev. 103, 104-105.

5 . See Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (creating two-part test for a attributing a private party’s action to the state).

6 . 12 O.S.1991, § 2102. All rules of evidence in judicial proceedings are designed to ensure that evidence is reliable and probative.

7 . "The judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money.” U.S. v. Singleton, 144 F.3d 1343, 1347 (10th Cir.1998), overruled on rehearing en banc 165 F.3d 1297 (10th Cir.1999).

8 .In Freeman v. State, 1994 OK CR 36, 876 P.2d 283, 290, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994), this Court declined to adopt a similar procedure but did not foreclose the possibility of regulating the admission of a jailhouse informant's testimony.