BRIEF OF APPELLANT

IN THE COURT OF CRIMINAL APPEALS
STATE OF OKLAHOMA

FILED AUG 11 1992

STEPHEN LEE ALLEN,
Appellant,

Case No. F-92-120

STATE OF OKLAHOMA,
Appellee.

BRIEF OF APPELLANT

Respectfully submitted by:

GARRISON, BROWN, CARLSON & BUCHANAN

Attorneys for Appellant
Kevin D. Buchanan
Alan R. Carlson

TABLE OF CONTENTS AND AUTHORITIES

STATEMENT OF FACTS

PROPOSITION NO. 1

The Trial Court prejudiced Appellant by the Court's own questioning of witnesses called by Appellant.: Henderson v. State,
385 P.2d 930 (Okl. Cr. 1963)
Richmond v. State,
456 P.2d 897 (Okl. Cr. 1969)

PROPOSITION NO. 2

The Trial Court erred in failing to grant Appellant's Motion for Change of Venue both prior to trial and during trial.: Coates v. State,
773 P.2d 1281 (Okl. Cr. 1989)

PROPOSITION NO. 3

The Trial Court erred in failing to sustain Appellant's Motion to Cease Testing and Motion in Limine concerning late technical reports.

PROPOSITION NO. 4

The Court erred in not providing Appellant with expert witnesses working on contemporaneous notes.: State v. Allen,
803 P.2d 1164 (Okl. Cr. 1991)

PROPOSITION NO. 5

The Court erred in failing to sustain challenges for cause to Jurors George, Wilson, and Vanaken.: Chambers v. State,
724 P.2d 776 (Okl. Cr. 1986)
Ross v. State,
717 P.2d 117 (Okl. Cr. 1986)

PROPOSITION NO. 6

That the Trial Court committed erred in allowing numerous evidentiary matters to be presented to the jury, each of which constitutes reversible error.

A. DEBORAH AUBREY AFFAIR: Burks v. State,
595 P.2d 771 (Okl. Cr. 1979)
Stowe v. State,
590 P.2d 679 (Okl. Cr. 1979)
Title 12 O.S. Section 2401
Title 12 O.S. Section 2403

B. IMPROPER REBUTTAL EVIDENCE BY WITNESS TOM BEVEL: Plumlee v. State,
361 P.2d 223 (Okl. Cr. 1961)

C. WITNESS ALAN EASTMAN

PROPOSITION NO. 7

The Court erred in allowing the State to qualify expert witness Baden with unsubstantiated and extraneous matter.: Title 12 O.S. Section 2401
Title 12 O.S. Section 2402
Title 12 O.S. Section 2403

PROPOSITION NO. 8

The Court erred in excluding from evidence the audio portion of the police department's crime scene video.: Oklahoma Bar Association v. James,
463 P.2d 972 (Okl. 1969)

PROPOSITION NO. 9

The Evidence was insufficient to support a guilty verdict.
A. APPELLANT PROVED THE EXISTENCE OF A CONTACT LENS AT THE SCENE NOT BELONGING TO APPELLANT OR HIS DECEASED WIFE.
B. NO MOTIVE.
C. SANDRA ALLEN'S UNUSUAL PHONE CALL AT WORK SHORTLY BEFORE HER DEATH.
D. BLOOD SPATTER EVIDENCE WAS CONSISTENT WITH APPELLANT'S STATED ACTIONS.
E. THE ALLEGED MURDER WEAPON COULD NOT HAVE BEEN THE SOURCE OF SANDRA ALLEN'S WOUNDS.

STATEMENT OF FACTS

The following facts were established by the Appellant during the course of the trial.

On June 11th, 1990, some five days prior the Appellant's and his wife's tenth wedding anniversary, the Appellant went to work as usual. Appellant and his wife were planning a brief anniversary celebration in the Ozarks where reservations had already been made.

Following work, Appellant returned home and his wife left shortly thereafter to go to work at Dillards department store. Appellant finished fixing dinner for he and his youngest son, the older two sons being at his in-law home in Missouri.

Following dinner Appellant and his youngest son mowed the lawn, cleaned up, and went to Dillards department store to see Appellant's wife. Shortly before his arrival, Appellant's wife had received a telephone call from someone pretending to be an old school mate of Appellant and wanting to know where Appellant was. The caller hung up when Appellant's wife indicated to the unknown caller that she knew everyone Appellant went to school with. Appellant and his son visited other stores in the shopping mall and returned back to Dillards department store and talked to Appellant's wife.

Appellant left the department store and went to the church office where he was the treasurer. He retrieved documents he needed and then went to a Sonic drive-in and obtained three drinks, one each for he, his wife, and their youngest child who was with him. Appellant then drove back to Dillards department store in an attempt to catch his wife getting off work. Not seeing her car, he proceeded to go home.

Upon pulling into the driveway of his residence Appellant saw a figure of a person at the edge of the patio coming South towards the Appellant, and when the car lights hit the figure, the figure turned and ran North.

Appellant parked his car, got out, locked the car doors, and set drinks on the hood of the car and proceeded into the house. Upon entering the kitchen area he found his wife dying in a pool of blood. Appellant turned his wife over and attempted to get some response from her. He then saw the signs of a struggle in the living room in front of him and stood for an undetermined period of time surveying the scene. Appellant then returned to his wife's body, straddled her, and shook her in an attempt to get some response from her. When this failed, Appellant headed to the telephone to call 911.

Laying on the counter by the phone was a ball peen hammer used by the children as a toy. Appellant, in frustration, picked up the hammer and struck the counter top with it. Appellant then, fearing conclusions that might be drawn from blood on the handle of the hammer from his hands, Appellant wiped the handle of the hammer with paper towels and took the hammer and towels to the attic by way of the garage. Appellant returned to the kitchen area and called 911 and remained on the telephone line until a police officer arrived at the residence.

Appellant was questioned briefly at the scene of the crime, at the hospital, the residence of his preacher, and, at the Bartlesville Police Department all between the hours of 10:00 P.M. on June 11th and 6:00 A.M. on June 12th, 1990.

Appellant turned himself in at the request of the District Attorney's office following the funeral of his wife on Friday, June 15th, 1990. Appellant, prior to trial, sought various writs from this Court seeking a denial of media access to the Preliminary Hearing (See Case No. 0-90-824), discovery prior to Preliminary Hearing (See Case No. 0-90-825), a Writ of Habeaus Corpus due to the Magistrate's denial of bail (See Case No. H-90-804), and, seeking a Change of Venue (See Case No. 0-91-526).

The Appellant was tried in District Court in Washington County, Oklahoma, beginning July 15th, 1991, and the trial ended August 12th, 1991. The Appellant was convicted of Murder in the First Degree and sentenced, in accordance with the jury recommendation, to life without parole. From this judgment and sentence he appeals.

PROPOSITION NO. 1

THE TRIAL COURT PREJUDICED APPELLANT BY THE COURT'S OWN QUESTIONING OF WITNESSES CALLED BY APPELLANT.

During the course of the trial, the Trial Judge questioned three (3) witnesses. The first such witness, and the most unforgivable and prejudicial of all, was the Trial Court's questioning of the Appellant himself. The Court's line of questioning was as follows:

"THE COURT: Let me ask you. Mr. Corgan asked you about the hammer. You said you recognized the hammer or not?
MR. ALLEN: Yeah, I believe so.
THE COURT: Where is that -- where was the hammer kept in your house, to your knowledge?
MR. ALLEN: Well, most of the tools are out in the garage. That one the boys use as a toy, so it could have been any where; but normally where we kept them was out in the garage.
THE COURT: Well the boys' toy, so a number of locations that they might what are you saying?
MR. ALLEN: Well, I'm saying that I think that the hammer was on the counter because probably Sandra had taken it away from them during the day sometime and laid it up there, but the storage area for tools at the house generally is out in the garage.
THE COURT:For that hammer normal storage place was in the garage?
MR. ALLEN: Yeah, with the rest of the items.
THE COURT: Do you know when you last saw it -- where you last saw it?.
MR.ALLEN: Prior to that night?
THE COURT: Yes.
MR. ALLEN: No.
THE COURT: Are you right handed or left handed?
MR. ALLEN: I'm right handed." (Tr. 8/1,5,6/91 Pg. 191 ln. 22-25, Pg. 192, and, Pg. 192 ln. 1)

This comment was, first of all, totally irrelevant. There was no issue of fact raised by either Appellant's counsel or counsel for the State concerning the "usual" location of the hammer. Second, and most obvious, the Court intended to convey to the jury that the Appellant's assertion that the hammer was inside the home laying on the counter top was an implausible or incredible explanation of the hammer's presence inside the house. Further, the Court's question concerning whether Appellant was right or left handed was also intended to emphasize to the jury and link up with the State's evidence the medical examiner's opinion that the majority of blows struck to Appellant's wife were after she was down and being struck from behind. The most extensive injuries then would have a logically come from a right handed person.

This evidence was not evidence which was necessary to clarify any point of significance in the trial. But, the question as asked by the Judge clearly indicated his disbelief in Appellant's story and it questioned Appellant's credibility on the point, and conveyed the Judge's own opinions and beliefs to the jury.

Counsel took the first opportunity following the questioning to object to the Court's question and move for a mis-trial. (Tr. 8/1,5,6/91 Pg. 226 ln. 7-10) During the course of the argument, the Trial Court clearly indicated that which he wanted to intimate to the jury as shown by the following exchange.

"MR. BUCHANAN: Could the Court given an explanation to the void relating to the hammer, because I think I certainly missed what void there was relating to where it was normally kept.
THE COURT: I think any home owner would know where he normally kept his tools.
MR. CARLSON: That's the point that I think was insinuated to the jury; that it was improper to have it on the counter. And that's what we're objecting to the Court insinuating things like that to the jury" [Emphasis added] (Tr. 8/1,5,6/91 Pg. 228 ln. 9-18)

The Court made further statements which also indicated the clear intent of his questions of the Appellant and also his disregard for his role in the trial as the Judge, and more as a prosecutor and a juror.

"THE COURT: Well, there was no testimony as to whether it was or wasn't out before he left, where it's kept in the house; and you can make, you know, whatever conclusions you want based on where it's normally kept or if he does know where it's normally kept, if it was or wasn't out. You can make - - whatever the answer is, you can make whatever you want. I mean, we're talking about the alleged murder weapon which was not, I felt, fully addressed for whatever reason. Trial strategy or not, I really don't care. It wasn't fully addressed. But I certainly like your idea about having counsel decide if they want to ask. I'm sitting here kind of like a juror to some extent and I don't like to ask questions." [Emphasis added] (Tr. 8/1,5,6/91 Pg. 228 ln. 19-29, and Pg. 229 ln. 1-6)

Clearly it is not the Trial Court's job to be a fact finder as he indicated he thought he was, and to act so in a First Degree Murder Trial is reversible error.

Another witness questioned was Peter Barnett, one of Appellant's forensic experts. Mr. Barnett was the first of Appellant's experts to examine the hammer which was the alleged murder weapon. Following redirect by Appellant's counsel concerning the impossibility of embedded glass in the hammer handle, as was alleged to have occurred by the State, the Court asked witness Barnett the following:

"THE COURT: Let me ask you a question. When did you say you received the hammer for analysis?
MR. BARNETT: On May 22nd, 1991.
THE COURT: And I don't know if you said as to book you testified with the blood, when and where did you receive that?
MR. BARNETT: . . .Basically I received it from Barry Rouw in Mr. Carlson's office and then I shipped it to myself. So, he actually picked it up and handed it over to me and then I shipped it to myself.
THE COURT: And you saw it at the scene July 2nd?
MR. BARNETT: This was on July 2nd.
THE COURT: '91?
MR. BARNETT: Yes, sir." (Tr. 8/1,5,6/91 Pg. 27 ln. 5-25)

Immediately following that line of questioning, Appellant's counsel felt it necessary to introduce an additional photograph, which was a crime scene photograph taken by the O.S.B.I. during their crime scene investigation. This was deemed necessary by Appellant's counsel to over come any insinuation and innuendo by the Court that witness Barnett or Appellant had in any way fabricated the book and blood stains contained on it as evidence. (Tr. 8/1,5,6/91 Pg. 28 ln. 7-18 and Defendant's Exhibit 30) There was significance to the issue of the book with the page containing blood spatter. The State's theory was that evidence of the struggle in the residence was staged. Part of the evidence of the struggle were books pulled down from a bookshelf, but, described by law enforcement as having all fallen down in front of the bookshelf too neatly. Obviously, the open book with blood spatter on it, as depicted in the law enforcement crime scene photos, proved that the book had already fallen and was open at the time Appellant's wife received her injuries. This obviously then questioned the State's theory as to whether or not Appellant's wife would have continued to enter a residence, under their theory, with a fight scene already staged and visible when she entered.

Further, concerning the Court's questions about receipt of the hammer, it is clear that the Court was driving home the point to the jury that the witness Barnett could not have been expected to have seen glass in the hammer involved in this case since testimony had already been elicited that the glass was removed on May 13th by the State's witness Doug Perkins. This again indicated the Judge's act of stepping out of the role of Judge and into the role of prosecutor, and trying to prove the State's case.

Finally, questions were asked of the State Medical examiner Dr. Robert Hemphill when Dr. Hemphill was called back in the Appellant's Case in Chief. One of the most significant evidentiary items at trial was the contact lens found on the Appellant's wife's body at the time of the autopsy. Witness Hemphill was the medical examiner performing that autopsy. The Following questions and exchange between the Court, counsel, and witness are as follows:

"THE COURT: Let me just - - did that cause you to make any further inquiries whether or not it came from the body or not.
MR. CARLSON: Your Honor, we're going to object. If you're asking on our behalf, we withdraw the question. If you're asking on behalf of the prosecutor, we object. We didn't open that door.
THE COURT: My question is having found one contact, did you check the body about that?
THE WITNESS: I examined the eyes, as I do as a part of every autopsy. I opened the eye lids, look at the exposed part of the eye for any signs of hemorrhage, injury, or anything like that for the color of the eyes and the size of the pupils.
Ordinarily, if there is a lens there, it would be seen at that point.
THE COURT: Is that a normal procedure or not to check for a body whether or not it has a contact lens on it?
THE WITNESS: I don't specifically look for contact lenses with a view to determining whether a certain body has contact lenses and then make a comment about it, no, that's not a part of my usual examination.
THE COURT: In this case, having found one, did you look for a second or a first and a second?
THE WITNESS: I did not specifically look for it with a view to making a statement in the report.
If I had know there were going to be this kind of questions related to it, I obviously would have seen that there was some statement in the report indicating where one was present.
To the best of my knowledge, there was not another lens present in the eyes. But other than that, I really can't answer.
THE COURT: Did you say that you recalled doing this test on both eyes that you mentioned?
THE WITNESS: Yes, I did." (Tr. 8/2,6,7/91 Pg. 102 ln. 20-25, Pg. 103, Pg. 104 ln. 1-20)

Appellant obviously objected to the Court's questioning of Dr. Hemphill contemporaneously, but also, moved for a mistrial on the basis that the Court was interfering with Appellant's right to conduct his own defense. (Tr. 8/1,5,6/91 Pg. 43 ln. 13-25, and, pg. 44 ln. 1-19) Although the Court in his denial of the Motion for Mistrial states that he perceives the question to have been neutral, it is clear that the Court emphasized the point over and over that the medical examiner had not specifically searched for a matching contact lens, and was on the verge of criticism of the witness for having not done so when he found the first one. This left the obvious hole for the jury to speculate as to whether or not the medical examiner missed a contact lens during the autopsy. Appellant considered the point made by the Court, by way of his questions, clear enough that Appellant filed a Motion to Exhume the Body of Sandra Allen for the purpose of determining the presence or lack thereof of contact lenses in her eyes. The basis of the Motion was, in part, that the Court had raised the issue by way of its questioning. (O.R. 1157) And, of course, the Motion to Exhume was denied by the Trial Judge who created the issue before the jury by his questioning of the witness.

In the case of Henderson v. State, 385 P.2d 930(Okl. Cr. 1963) , the Court restated the general rule concerning trial court's questioning of witnesses:

"We have often held that the trial court has the right to question witnesses, especially for the purpose of bringing out some material point for the consideration of the jury, but we have stated that it is not the best practice, and the court should be very careful in questioning witnesses." [Emphasis added] Id. At 936.

Also, in the case of Richmond v. State, 456 P.2d 897 (Okl. Cr. 1969), the Court made these further observations concerning trial court's questioning of witnesses:

"Jurors are easily influenced by the remarks of a trial judge, and the greatest care should be observed that nothing is said that can by any possibility be construed as an expression of the court's views respecting the merits of a criminal case. Court's can not be too circumspect in their efforts to avoid allowing jurors to discover the opinion of the judge as to the weight of the evidence, or the guilt or innocence of a defendant." Id. At 900.

The Trial Court asked question of only three (3) witnesses, all of which were defense witnesses or questioned when called by the defense. But, one (1) witness, the most important witness of the trial, was the Appellant, the man on trial for his very life. Those questions clearly indicated the Court's disbelief in the Appellant's statements concerning the location of the hammer. That that was the Court's opinion was clear from the statements made when Appellant objected to those questions later. Further, another defense witness was questioned by the Court as well as the medical examiner when called back by the Appellant. Each time the questions directed the jury's attention to facts or evidence which were detrimental to or weakened Appellant's attempts to defend himself against the State's case. Appellant can not possibly expect to receive a fair judgment at the hands of a jury who on three (3) occasions watched the Trial Court question the Appellant's defense of himself and so indicated his disbelief by questioning Steve Allen, the Appellant, and two other defense witnesses. Further, it is clear that the Appellant was powerless to stop the Trial Court from this activity despite objections each and ever time the Trial Court questioned the witnesses. In a case in which a man is on trial for his life, and, all of the power and resources of the State of Oklahoma are used to try and convict him, it seems that a Trial Court should allow the man the ability to try the case in a fashion in which he desires within the bound of the law. But, clearly, in this case Appellant was not afforded that opportunity because, as the Trial Court so eloquently put it, "frankly I don't care". Appellant's conviction should be reversed for this reason for trial before a different Court.

PROPOSITION NO. 2

THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR CHANGE OF VENUE BOTH PRIOR TO TRIAL AND DURING TRIAL.

PRETRIAL ISSUES

The Appellant filed a Motion for Change of Venue on May 10th, 1991 (O.R. Pg. 424-485) The Motion for Change of Venue was argued on May 29th, 1991. Appellant provided three (3) Affidavits from Washington County citizens in accordance with statutory requirements, and further presented the testimony of Dr. Kenneth D. Bailey and a public opinion study performed by Dr. Bailey at that hearing. The motion itself presented the Court with forty-two (42) newspaper articles beginning the day after the murder of Sandra Allen and covering the fact of her death, descriptions of the crime scene, the arrest of the Appellant, daily reporting of testimony from the Preliminary Hearing, and most if not all Motions filed by the Defendant in the case through the date of the filing of the Motion for Change of Venue. (O.R. Pg. 443-485) Articles were contained in local media publications as well as all major newspapers from Tulsa.

Dr. Bailey's public opinion study also presented to the Court at the time of the Motion Hearing indicated to the Court a substantial effect upon the citizens of Washington County, the potential jury pool, resulting from both the media and general interest in the case. The Appellant believes that the public opinion poll and the results derived from that poll were extremely significant in the Court's consideration of the Motion for Change of Venue. For that reason, some discussion of the poll and its results is necessary.

First, as was indicated, Dr. Kenneth Bailey was the person who devised and supervised the poll itself. Dr. Bailey has had significant experience in public opinion polls in the area of politics, marketing research, and litigation. As regards litigation, Dr. Bailey has been involved in such cases as State v. Damon Tucker (Chubb) Anderson, U.S. v. Wes KcKinney, Kerr McGee Corporation v. Silkwood, U.S. v. Jose Rafal Abello-Silva, and others. Dr. Bailey has also authored numerous papers and has been a speaker at numerous seminars, including legal education seminars for a number of years. ( See Exhibit "A-1" attached to Brief in Support of Petition for Writ of Mandamus in Case No. 0-91-526)

In this particular poll, Dr. Bailey's questionnaire was limited to residents of Washington County including the towns of Copan, Ramona, Dewey, as well as Bartlesville. (Tr. 5/29/91 (Venue) Pg. 7 ln. 14-23) The poll completed three hundred (300) interviews, the names for which were randomly selected from telephone directories. All surveys were conducted by telephone. The questionnaire used by the pollsters, among other things, determined that the person reached was in fact a Washington County resident, the source from where the person called receives most of their news, how much trust was placed in that new source, and finally a request for specific information the person contacted knew or had heard about the Appellant's case. (Exhibit "B" attached to Brief in Support of Petition for Writ of Mandamus in Case No. 0-91-526) Appellant considers the two (2) most important findings resulting from Dr. Bailey's poll were of those person expressing an opinion, eighty-four point 2 percent (84.2%) believed it was very likely to somewhat likely that the residents of Washington County had already formed an opinion about the quilt or innocence of the Appellant. Further, that of those persons expressing an opinion, fifty percent (50%) believed that Appellant would more likely receive a fair trial outside Washington County. (See Exhibit "C" attached to Brief in Support of Motion for Writ of Mandamus, Case No. 0-91-526) But, also equally as enlightening, were the verbatim comments recorded by the pollsters during the poll clearly indicating that Appellant had an enormous battle ahead to set aside information that had been disseminated through the public by word of mouth and by news media. The issues either were totally false and were never presented at trial as evidence for either side, or was information that so predisposed the minds of the jury pool towards certain evidence, that no amount of testimony on behalf of the Appellant could make any difference. For instance, there are eight (8) comments referring to the belief that Mrs. Allen was killed over the purchase of a television set. Five (5) persons commented on their belief that the local program for battered women had had prior contacts with the Allen's or that Mrs. Allen had appeared at work with bruises on her face. Both of the foregoing categories concerning the television set and the prior violence between the parties was totally false and was generated through sheer public interest in gossiping about the case. In summation, probably the clearest expression of the amount of public knowledge of the case was made in the following response:

"I don't want to tell you that. It would take me thirty (30) minutes." (See Exhibit "D" attached to Brief in Support of Petition for Writ of Mandamus, Case No. 0-91-526, comment 26)

The State of Oklahoma, at the hearing of the Motion for Change of Venue, contested the results on the grounds that those persons polled were not under oath and were not being questioned by the Court or counsel as to their ability to set aside any predetermined opinions. Dr. Bailey covered this topic thoroughly with the Court and, based upon his experience and training and as an expert n the field indicated to the Court the following:

"A. Well, the biggest problem is to try to get people to tell you what they really thing in their minds, and this is evident from the fact that we were able through the telephone to let - - have them tell us anonymously what they really feel about the case, and that the rumors and felling are there. Now, whether they will face up to what these feelings and thoughts are when confronted by the attorneys and the Judge, is doubtful that they will.
Q. What's been your experience so far as people in - - when they're in person in the court room as far as they way they conduct themselves so far as the reliability of their responses when they're in front of people?
A. Well, I think it's a lot like what I said about the difference between in-person and telephone interviews, that when people are questioning the Court, there are a couple of things they think about. 1, What does the Judge want me to say or what do the attorneys want me to say; 2, I don't want to look foolish in front of my peers that are here to be selected too. So frequently they don't tell what they think and what they feel." (Tr. 5/29/91 (Venue) Pg. 17 Pg. 15-25, and, Pg. 18 ln. 1-9)

Dr. Bailey's opinion as an expert witness concerning jurors' inability or refusal to state their true feelings or, even the truth, during the voir dire process was borne out during the voir dire process. First, Bobby Paris failed, despite direct questions to disclose a prosecution and conviction for D.U.I. and Leaving the Scene of a Property damage Accident in 1986. Mr. Paris was re-questioned about this and simply indicated that he forget. (Tr. 7/16,17/91 Pg. 3 ln. 10-25) Also, Juror Mitchell denied contact with law enforcement or the District Attorney's office even though she had been taken into emergency detention for apparent concerns that she might commit suicide, and, that she had been the victim of an assault and battery by her former husband wherein charges had been filed against the former husband but dismissed at Ms. Mitchell's insistence. The Court excused Ms. Mitchell for not responding appropriately to questions that were asked of her in chambers. (Tr. 7/16,17/91 Pg. 11 ln. 9-25, and Pg. 12 ln. 1-17) And finally, Juror Hendrix was excused for failure to disclose a felony conviction received in the State of Colorado. All three (3) of those potential jurors failed under oath and under direct questioning to disclose information that was either embarrassing to them, or for whatever reason they decided they did not want to disclose. This was direct support for Dr. Bailey's expressed opinion to the Court.

The telephone survey responses indicate that the vast majority of persons knew a great deal of facts surrounding Appellant's case prior to trial. Most of these facts involved the hiding of a weapon, the brutality of the crime, and supposed inconsistencies in statements. But, a review of the voir dire of the jurors indicates that only limited information was known about the case. The only conclusion that can be reasonably drawn from the poll and from the voir dire is that substantial information was known to the jury pool in Washington County. But, potential jurors were reluctant to divulge that information under the formal process of voir dire. Despite the Appellant showing to the Court the extensive media coverage of this case, and the affect that such publicity had on the jury pool as evidenced in Dr. Bailey's opinion poll, the Court denied Appellant's Motion for Change of Venue. (O.R. Pg. 813) Following voir dire, Appellant reurged the Motion for Change of Venue which was again denied. (Tr. 7/19,22/91 Pg. 141 ln. - 143)

ISSUES ARISING DURING TRIAL

The impossibility of the Appellant to receive a fair and impartial trial concerning the charge against him became abundantly clear during the course of the trial. Media coverage and interest in the case was extensive. Testimony from each day was printed nightly in the newspaper. But, the most serious problem which Appellant encountered during the course of the trial was the Court's decision to allow members of the media into the Judge's chambers when various Motions were argued including Motions in Limine. Two (2) specific instances occurred as a result of the Court's ruling in this regard and the media's insistent and non-discrete reporting of such arguments and inadmissible items caused the jury in the case to be hopelessly tainted.

First, on August the 5th, 1991, the Appellant, STEPHEN LEE ALLEN, testified on his own behalf. During the course of that testimony he demonstrated with the aid of counsel his actions upon entry into his home and finding his wife on the floor. The actions he demonstrated included showing the jury what he had done in regard to the touching of his wife's body. Prior to this date and throughout the course of the trial the Court had allowed the media to film and photograph only in the hallways or through the window at the back of the Courtroom. But, despite that, a Bartlesville Examiner-Enterprise photographer photographed Mr. Allen demonstrating his actions regarding the touching of his wife's body from a door window directly opposite the jury. The photograph contained Mr. Allen and the entire jury panel with every jurors face clearly identified. The photograph appeared on the front page of the paper on August 6th, 1991. (See Defendant's Exhibit "B") This picture was seen by the jurors as is clear from discussion below.

On that same date, August the 5th, Appellant filed a Motion to Exhume the Body of the Deceased. This Motion was argued in chambers and denied. The Motion itself was filmed by Tulsa news stations and appeared on the evening news. It also appeared in reports of local and Tulsa newspapers.

On August the 7th, 1991, during in-camera argument of a Motion in Limine filed by Appellant, the State of Oklahoma disclosed what it proposed to present as a rebuttal character evidence of the Appellant. This included their intention to present evidence of Mr. Allen being "enraged" at work, "attacking a copy machine", "jerking" one (1) of his children out of the street and hitting him with a stick in the yard, kicking another child, and "exploding" at a young girl playing with the children. All of these specific instances of conduct which the State desired to present as rebuttal were excluded as improper rebuttal. Despite that the news media, having been allowed in chambers over defense objection during the argument, reported all that the State had indicated its evidence would show. (See Defendant's Exhibit "A") Appellant had objected to the presence of the press during in-chambers proceedings as early as the first day of voir dire. (Tr. 7/15/91 Pg. 120 ln. 6 and 7) It is clear from the following that the Appellant was defending himself from the press as well as the State and Court from the following exchange which occurred in chambers on August the 8th during an in-chambers discussion concerning one (1) of the State's rebuttal witnesses:
(A NEWS REPORTER ENTERED THE COURT'S CHAMBER)

MR. CARLSON: Now, wait a minute. We're going to object to the press being in here.
MR. BUCHANAN: We've already had enough trouble with that.
MR. CARLSON: Look at theses newspapers articles that came out.
THE NEWS REPORTER: It's public record if the Court Reporter's in here, Judge.
MR. CARLSON: Well, were going to object to that. I don't care.
THE COURT: That's what they're here for.
MR. CARLSON: On an in-chambers hearing.
MR. BUCHANAN: And taint the jury? That's what they're here for? That's what's going to happen.
THE NEWSPAPER REPORTER: The jury's not supposed to be reading this.
THE COURT: That's the purpose of the press.
THE NEWSPAPER REPORTER: Thank you, Judge. (Tr. 8/7,8,10/91 Pg. 59 ln. 17-25, and, Pg. 60 ln. 1-12)

The Appellant moved for a mis-trial based upon the reporting in the newspaper and other media of the rebuttal testimony proffered by the State which had been excluded by the court. (Tr. 8/7,8,10/91 Pg. 146-150)

Despite Appellant's objections and the clear threat the reporting of such information posed to the Appellant, the Court continued to allow such a practice. And, as was inevitable, clear evidence that the jury had in fact ignored the admonitions of the Court occurred. On August the 12th, 1991, the Court bailiff was sworn to testify following contact she had with the jurors shortly after they retired deliberate:

"Q. Did one (1) of the jurors come to you one (1) or more than one (1) and inquire as to whether or not their homes could be watched while they were deliberating?
A. Yes.
Q. Okay. Was there more than one (1) juror?
A. Yes.
Q. Do you recall how many jurors?
A. I believe three (3).
Q. Okay.
A. They all expressed some concern, but three (3) that stand out in my mind."
* * *
"Q. DID THE JURORS SEEM UPSET THAT THEIR PICTURE HAD BEEN IN THE EXAMINER-ENTERPRISE?
A. THEY WERE, but I also made the comment to them at the same time that they were telling me this, I said, you have been in the Courtroom with rooms full of people day after day so there is many people that know you're jurors and know who you are by sight. Not necessarily by name, but by sight. So I think that helped a little because a lot of them felt like - - well, I don't think they thought of it that way.
Q. Was there some concern expressed by jurors as to a concern for their families safety by virtue of them being on this jury?
A. I think there was some, a little bit." (Tr. 8/12/91 Pg. 42 ln. 9-19, and Pg. 43 ln. 19-25, and Pg. 44 ln. 1-7) [Emphasis added]

NO JUROR COULD HAVE KNOW OF HIS OR HER PICTURE ON THE FRONT PAGE OF THE PAPER UNLESS THEY HAD VIOLATED THE COURT'S ADMONISHMENT IN SOME FASHION. Therefore, the jurors had been exposed to the articles running in the Bartlesville Examiner-Enterprise on August 5th, 1991 for certain. There is no reason to believe that the report run August 7th containing evidence excluded from trial by the Court was not also known to the jurors. But for the extraordinary interest in the community surrounding the Appellant's case and the press feeding that interest constantly, such occurrences would be far less likely to occur. APPELLANT CAN SHOW THREE (3) THINGS TO THIS COURT AS A RESULT OF THE FOREGOING PASSAGE. FIRST, THE JURORS VIOLATED THE COURT'S ADMONISHMENT TO IGNORE THE MEDIA. SECOND, THE MEDIA WAS AGGRESSIVE TO THE EXTENT OF BEING ADVERSARIAL TO APPELLANT DURING THE TRIAL OF HIS CASE. THIRD, SOME OF THE JURORS PERCEIVED THE PASSIONS SURROUNDING THE OUTCOME OF APPELLANT'S CASE TO BE SO GREAT THAT THEY FEARED FOR THEIR OWN SAFETY. It can not be reasonably argued that the Appellant would have to deal with jurors fears for their own safety during the deliberation of his case if tried in another jurisdiction.

LAW APPLICABLE TO VENUE

This Court has recently set forth the newest guideline for reviewing the propriety of granting a Motion for Change of Venue in Coates v. State, 773 P.2d 1281 (Okl. Cr. 1989). The case provides two (2) tests which are determinative of whether or not a Defendant's due process rights have been violated based on the juror's prior knowledge of the case and pretrial publicity.

"First, prejudice may be presumed where the facts reveal that 'the influence of the news media, either in the community at large or in the Courtroom itself, pervaded the proceedings'". Id at 1286.

In using the same analysis which the Court did in Coates, by reviewing the newspaper articles and television Court coverage, one does not find the same type of statements in the media coverage as was in the Coates case but media coverage that is just as damaging nonetheless. In reviewing the early reports of the murder of Mrs. Allen, numerous police comments were reported verbatim. Some of those included "this is such a gruesome and horrible incident that the guilty party will be caught and prosecuted, they will stand before the bar of justice." (See June 13th, 1990, Tulsa World) "It was a really tragic crime scene, a very brutal attack with very traumatic injuries. Certainly the injuries were not inflicted with any intention of her surviving." (See June 13th , 1990, Daily Oklahoman), and, "It was very hard to see pictures of beautiful kids and open bibles in one part of the house and carnage in the other. It was obvious she was a very virtuous woman." (See Bartlesville Examiner-Enterprise June 13th, 1990) A review of the verbatim comments from the study of Dr. Bailey reveals a number of persons describing the crime as brutal, the same word used in numerous articles. Further, extensive coverage of the Preliminary Hearing occurred. Needless to say, a Preliminary Hearing is not for the purpose of a defendant to establish his defense. Therefore, only that evidence which State chooses to put on in order to support their burden of probable cause is that which is reported. Even that was not reported completely. Officer Gus Davis, the second and senior officer on the scene, testified in one of his statements about Appellant which was reported that "emotionally, I was getting nothing out of him." ( See March 26th, 1991, Bartlesville Examiner-Enterprise) But, in fact, Officer Davis testified on cross-examination that in his written report he indicated that the Defendant was very shaken from the experience. (Tr. 3/25,26,27/91 I Pg. 169 ln. 12-19) Further, although the Bartlesville Examiner-Enterprise, Tulsa World, and Tulsa Tribune, all reported the testimony of chemist Lynette Lee concerning blood being found on the handle of the hammer, one of the articles indicated that blood was not found anywhere else on the hammer, particularly, the head. (Tr. 3/26/91 Pg. 25 ln. 10-16) Therefore, the media blitz prior to the trial of the case contained one side of the story and only one side, that being the side most damaging to the Appellant.

Evidence of the effect on the residents of Washington County is obvious. The verbatim comments recorded during the public opinion poll are replete with indications of the newspaper clearly supporting the guilt of the Appellant and him having already been tried in the paper. The following statements are portions of those verbatim comments from Dr. Bailey's survey, all found in Exhibit "D" attached to the Brief in Support of the Petition for Writ of Mandamus, Case No. 0-91-526:

"The paper makes him sound guilty." (Comment No. 29)
"Due to the newspaper, a lot of people feel he can't get a fair trial." (Comment no. 54)
"His case has been highly publicized. I think he's guilty. Things just don't fit. His story kept changing."(Comment No. 56)
"Everything I've read or heard sounds like they've already pronounced him guilty." (Comment No. 104)
"From what I read the prosecutor convinced me he murdered his wife." (Comment No. 133)
"It sounds like he's guilty and I think the news is slanted that way, too." (Comment No. 166)
"Between the paper and me it looks like he did it." (Comment 169)
"I know what I read in the papers. I read in the paper he is pleading not guilty. I think he is guilty - everything points to it. (Comment No. 180)
"The paper basically said he did it." (Comment No. 191)
"I think that they basically reported the crime and his alibi wasn't very good and he was arrested. I remember there was a great deal published about it. There was a great deal of presumption published in it." (Comment No. 205)
"Well, what I've read is from the local newspapers and reports from experts on the way the blood flies when you hit the body from different angles. I think he's guilty. They wouldn't want me on the jury because I think he's guilty." (Comment No. 237)

The foregoing comments are only those comments which specifically state that their information came from the media and they believed he was guilty or that the newspaper was prejudiced against him. A reading of the comments as a whole clearly indicates that the media coverage prior to trial caused Washington County generally to prejudge the guilt of the Appellant.

The second test to be dealt with in Coates "focuses on the entire circumstances surrounding Appellant's trial to determine whether the Appellant received a 'fundamentally fair' trial." Id at 1286. And, as the Court indicated, a juror's response on voir dire that they will be fair and ignore pre-trial information is not determinative. Suffice it to say that not one (1) of the thirty-seven (37) jurors who were asked what they remembered about the case during voir dire indicated that anything they remembered would have an affect on their impartiality. As indicated above, at least three (3) jurors failed to truthfully respond to direct questions. Few if any of the jurors said they could recall details that they had heard in media coverage or in general conversation. These thirty-seven (37) would have been the exception in Dr. Bailey's pre-trial publicity poll, at least as to the amount of detail they could remember. Further, numerous of the jurors questioned during voir dire admitted to having had opinions discussed in their presence or expressed to them, but not one (1) indicated an opinion formed themselves. Prospective Juror Rodney Wilson, when asked to disclose opinions expressed to him, stated the following:

"Blatantly, bluntly, yeah, he did it. He's guilty, he'll never get a fair trial in this town." (Tr. 7/18/91 (Voir Dire) Pg. 53 ln. 6)

Prospective Juror McMurtery summarized statements made to her as follows:

"Well, I'm sure that just a couple of them have commented to me that they're just certain that he's guilty." (Tr. 7/18/91 (Voir Dire) Pg. 89 ln. 19-21)

Prospective Juror Miller, in response to the Court's question about how pre-trial publicity would affect her ability to be impartial responded as follows:

"Well, I felt like the evidence was overwhelming against him, but yet there were some things that didn't quite fit that I would be willing to listen to, you know, and make my decision on." (Tr. 7/18/91 (Voir Dire) Pg. 197 ln. 3-7)

Prospective Juror John, following a day at Court during the voir dire process, was contacted by a friend who expressed her opinion that the Appellant was guilty. (Tr. 7/19/91 Pg. 36 ln. 9 and 10) Prospective Juror Wallace in response to the State's question as to the type of opinions expressed to her responded that the opinions weren't very pleasant, that they believed him to be guilty. (Tr. 7/19,22/91 Pg. 44 ln. 6 and 7) Prospective Juror Payne responded to the Court's inquiry about pre-trial publicity by indicating that she would be lying to say that discussions about the case hadn't occurred that we've all discussed it. (Tr. 7/15/91 Pg. 95 ln. 21-23) Finally, and probably most important of all, is the statement of prospective Juror Benge. He indicated to the Court that as result of the information in the paper and working with some people who knew of the Appellant from his employment at Phillips Petroleum Company, he would have to consider what those person thought of him depending on what decision he made as a juror. Further, in clarifying the comment, he agreed with the Court that there was an unofficial opinion in the work place that he would feel compelled to follow. (Tr. 7/15/91 Pg. 63 ln 1-25)

It seems incredible that of the thirty-seven (37) persons individually questioned during voir dire, that not one of them had formed an opinion in the face of the comments set forth above. But, based on the expert opinion of Dr. Bailey and the three (3) examples of non-responsiveness, it is clear that the jurors were, for the most part, not going to come forth and speak freely about how they felt concerning the Appellant's guilt or innocence As was stated, each of the jurors indicated that they could base their decision based upon the evidence presented in Court. But, not on (1) of them indicated, as they did to the bailiff during deliberations, that fear for their families safety would be on their minds while they were deliberating. That the Appellant was forced to have his case tried in a county inundated with such publicity generating such a general opinion of the Appellant's guilt, and causing some if not all jurors to fear for their safety as a result of their service on the case, can be nothing short of a denial of his due process rights. For this reason, the Court erred in not granting the Motion for Change of Venue as filed on May 10th, 1991, or a reurged at the beginning and end of the voir dire process.

PROPOSITION NO. 3

THE TRIAL COURT ERRED IN FAILING TO SUSTAIN APPELLANT'S MOTION TO CEASE TESTING AND MOTION IN LIMINE CONCERNING LATE TECHNICAL REPORTS.

On May 10th, 1991, the Appellant filed a Motion to Cease Testing, said Motion pertaining to the State's testing of physical evidence. (O.R. 609) The Court summarily denied the Motion when argued June 21st, 1991. At the time of the argument of said Motion, a Motion in Limine was also argued which had been filed June 21st, 1991, pertaining to a particular report received June 18th, 1991, indicating results of the test of the alleged murder weapon by O.S.B.I. witness Douglas Perkins. (O.R. 869) The Court also denied that Motion. (O.R. 955)

The evidence which was admitted despite the Motion to Cease Testing and Motion in Limine above referenced had to do with the alleged murder weapon in this case, and , in all probability, the most damaging evidence which Appellant had to face from the standpoint that he admittedly hid the hammer in the attic after finding his wife dead. Therefore, the importance of the technical reporting concerning this time of evidence can not be over stated. The following chronology is of importance to this discussion:

June 11th, 1990, State seizes hammer as evidence.
June 13th, 1990, Hammer submitted to Lynette Lee for testing. (See State's Exhibit 57, Page 1)
July 16th, 1990, Lynette Lee reports results of hammer examination as follows: "Stain of human blood was identified on handle. Antigen 'H' activity was detected. No glass observed. No hairs found." [Emphasis added] (See State's Exhibit 57, Page 9, #55)
March 26th, 1991, Lynette Lee testifies that she viewed the hammer under a microscope looking for glass but found none. (Tr. 3/26/91 Pg. 45 ln. 1-6)
May 13th, 1991, Douglas Perkins tests hammer and finds glass on hammer of handle. (Tr. 7/23,25,26/91 Pg. 224 ln. 5-7, and O.R. 873)
May 22nd, 1991, Appellant's expert witness, Peter Barnett, receivers hammer for testing. (Tr. 8/1,5,6/91 Pg. 27 ln. 5-7)
June 6th, 1991, Witness Douglas Perkins reports findings of hammer testing. (O.R. 873)
June 18th, 1991, Appellant receives report of alleged finding of glass in handle of hammer.
July 24th, 1991, Witness Lynette Lee testifies that her microscopic examination of the hammer for glass was limited to the head of the hammer. (Tr. 7/24,29,30/91 Pg. 30 ln. 17-19)

The first and most obvious problem indicated in the chronological set of facts set forth above is the witness Lee's original testing and lack of finding of glass on the hammer, a substance which she originally testified at the Preliminary Hearing to looking for with the use of a microscope. Then, some eleven (11) months after the death of Sandra Allen and following the testing of Lynette Lee, Douglas Perkins finds glass in the handle of the hammer, thereby allegedly creating a link between the hammer and the broken pane of glass in the exterior door in the Allen residence. That connection was of great importance to the State in its theory of the case. Then, after Appellant's expert witness in California has already looked at the hammer, a report of the finding of glass in the handle is given to Appellant less than one (1) month before trial and during the hammer's exchange among other expert witnesses for their review. And finally, Ms. Lee attempting to clarify her testimony from the Preliminary Hearing and bolster Perkins position by indicating that the only microscopic examination for glass that she made was on the head of the hammer, which is the surface of the hammer which is least likely to retain such a substance.

The State had in its hand prior to the Preliminary Hearing in this matter all of the physical evidence taken from the Allen residence for a period of nine (9) months. After the Preliminary Hearing, and after obvious discussions with the witness Doug Perkins to do additional testing, the State waited close to an additional seven (7) weeks before further testing of the hammer was performed. The first of Appellant's experts who needed to view the hammer received it on May 22nd, 1991, less than sixty (60) days before trial. The delay in completion of testing the physical evidence on the part of the State is totally unexplained. There can be no conclusion drawn but that the State waited until the last possible minute in an effort to withhold information from the Appellant concerning the results of their testing. And, this is a practice over which the Appellant had no control nor does any Defendant ever have any control over this practice. But, Appellant attempted to do the only thing possible, and that was to obtain an Order of the Court to cease testing, Although that was denied, the Appellant did receive two (2) cutoff dates for the receipt of all technical information. The original Order, dated April 23rd, 1991, provided that all technical reports in summary form were to be provided to Appellant by April 26th, 1991. (O.R. 369) The Court followed that Order with an additional Order dated May 24th, 1991, requiring the State to provide copies of all technical reports on or before June 7th, 1991. (O.R. 811) In addition to the Court's Orders, Appellant requested by way of letter any reports on testing done by Mr. Perkins for which reports had not yet been received. (O.R. 786) On the date of the latter Court Order and the letter sent by Appellant's counsel noted above, the testing had already been done and the results of the testing know to at least one (1) of the State's witnesses if not others. Yet, despite the Court's final June 7th, 1991, deadline for supplying Appellant with technical reports, the Court allowed the evidence of the glass found in the hammer handle to be presented to the jury when the defense did not receive the report of the alleged glass found in the handle of the hammer until June 18th, 1991. Further, the Court had to deal with additional tests performed as late as July 25th, 1991, when the trial was already underway. (Tr. 7/23,25,26/91 Pg. 216 ln. 21-25) No better circumstance could represent why the Motion to Cease Testing was erroneously overruled. When on trial for your life one should not be subjected to trial and testing by ambush.

Under the circumstances, the State of Oklahoma has the Oklahoma State Bureau of Investigation laboratories and all of its various experts at their disposal. The Appellant, on the other hand, must seek in the private sector and subject to the private sector's time limitations, experts able to handle the information, draw conclusions and form opinions from the evidence, report those, and be prepared to testify all, at least in this case, in a matter of sixty (60) day. No excuse can be offered for the State delaying eleven (11) months testing of the physical evidence, and, then, additional testing being performed after Appellant's experts have viewed the evidence and reported their opinions. Few persons in this country have the resources available to match the State's ability to test and retest evidence upon request. No person in the Sate of Oklahoma, under this Court's current case law, has the ability to view the physical evidence accumulated by the State until he or she has been formally arraigned on their charge and, all the while, the State having the luxury of unlimited time to test the evidence. For this reason, fairness dictates that when a citizen must defend himself against his government, that the government have some responsibility and limitation regarding the timeliness of testing the physical evidence to be presented against that citizen. The nine (9) months preceding Preliminary Hearing would not have been and unreasonable limitation upon the State, and certainly not the eleven (11) months preceding the filing of Appellant's Motion to Cease Testing. But, more importantly in this case, the Appellant presented with one (1) expert's finding of no glass on the hammer and another expert's finding of the glass on the hammer eleven (11) months later and the surprise occasioned upon Appellant and his experts in this reversal of testimony, was more than ample reason for the Court to have sustained the Motion to Cease Testing and Motion in Limine specifically concerning the late testing of the hammer and late reporting of those results.

PROPOSITION NO. 4

THE COURT ERRED IN NOT PROVIDING APPELLANT WITH EXPERT WITNESSES WORKING OR CONTEMPORANEOUS NOTES.

Among his Discovery Motions, Appellant filed a motion for the Court to provide him with the notes and work sheets of Lynette Lee. (O.R. 730) Witness Lee was an O.S.B.I. criminologist who viewed, among other things, clothing of the Appellant and the hammer which is the alleged murder weapon. There was though, significant importance to this request. As indicated earlier, witness Lee reported on July 16th, 1990, after making observations and performing tests on the hammer in question, that no glass was found. Further, at Preliminary Hearing, she testified to this same fact. But, on May 13th, witness Douglas Perkins purported to have examined the hammer and found minute glass particles in the handle of the hammer. This was reported to the Appellant on June 18th, 1991. The issue of most importance then became to assure that evidence had not been fabricated, an issue certainly raised by the circumstances under which the glass was found. Therefore, the manner and extent to which she viewed the hammer on her initial inspection for glass was critical. She testified that she specifically looked at the hammer for the presence of glass and found none. At trial she clarified this by stating that she only looked at the head of the hammer for glass. The necessity for the original working notes during her examination of the hammer becomes obvious. Apparently, almost a year after her examination of the hammer, glass is found. She had obviously viewed other items of evidence during the course of the year and was then, from all indications, simply relying on her memory to recall the extent of her examination of the hammer for glass. But, any entries in her original notes on this subject would have greatly supported or destroyed her credibility on this issue and, the credibility of the State in purportedly finding the glass a year later.

In this Court's decision arising from this case, State v. Allen, 803 P.2d 1164 (Okl. Cr. 1991) providing for the new discovery code in criminal cases, the Defendant is entitled to all technical reports from expert witnesses. A shining example of the uselessness of their technical reports without the inclusion of their working notes arose in the instant case. At Preliminary Hearing, witness Douglas Perkins provided a report to the State indicating that he viewed the Appellant's shirt, shorts and tennis shoes and found the presence of blood and the presence of blood spatters of medium velocity on the shirt and shoes. (Tr. 3/26/91 Pg. 75 ln. 15-20) But, without his working notes the Appellant has no idea which blood spots if any found on the shirt were identified by the State's expert as spatter or, if coming from some other source such as contact. In determining whether or not the Appellant was present at the time Sandra Allen was murdered, theses questions are truly the only important ones. Appellant was, at Preliminary Hearing, able to see the working notes of witness Perkins only because he reviewed those on the witness stand. (Tr. 3/26/91 Pg. 84 ln. 8-11) But, with those notes, Appellant was able to develop a meaningful understanding of the fashion in which the evidence was analyzed and the conclusions arrived at.

Therefore, it is the position of the Appellant that the Court's decision regarding the discovery of expert witness opinions and technical reports is meaningless if the report only contains a conclusion without the background of how that conclusion was reached. Further, the Court's mandate that the State provide such reports to Defendants in criminal cases will remain a near meaningless discovery tool without the additional requirement that all original observation notes, working notes, and supporting documentation is included.

But, in the instant case, it is clear that the Appellant was injured by the Court's refusal to force the disclosure of said notes on such a critical issue as evidence found on the alleged murder weapon which had previously been reported as absent.

PROPOSITION NO. 5

THE COURT ERRED IN FAILING TO SUSTAIN CHALLENGES FOR CAUSE TO JURORS GEORGE, WILSON, AND VANAKEN.

JUROR GEORGE

During the voir dire process, Juror Paul Edward George was questioned by defense counsel in chambers concerning pre-trial publicity and pre-formed opinions of guilt concerning the Appellant. The following exchanges took place:

"MR. CARLSON: . . .Right. I mean it can't help but have some effect on you when people voice their opinion that they feel like Steve's guilty.
JUROR GEORGE: That was most of the opinions that I heard.
MR. CARLSON: How do I get you back?. . .
JUROR GEORGE: I think it would have to be proven in Court to change my mind.
MR. CARLSON: Do you understand, Mr. George, that we don't have to prove anything to you from our standpoint, from defense standpoint? Do you understand that?
JUROR GEORGE: Well, I suppose you could say that I've got to be convinced, right." (Tr. 7/15/91 Pg. 22 ln. 16-21 and Pg. 23 ln. 4-5 and 12-16)
"MR. CARLSON: Okay. All right. But let me say -- you say not real seriously. Just did you draw any kind of opinion as to how the paper felt about Steve?
JUROR GEORGE: The paper felt like he was guilty I guess." (Tr. 7/15/91 Pg. 27 ln. 11-15)
"MR. CARLSON: Okay. But you still, I take it, would require me to prove something to you to show that what -- that the papers off base or that theses people's opinions are off base. Is that a fair statement?
JUROR GEORGE: I would think so, yes." (Tr. 7/15/91 Pg. 29 ln. 16-20)

Clearly from the above quoted passages, Juror George has, prior to the trial, been exposed to the media who he perceives to be in favor of the Appellant's guilt, and, persons with whom he talks who have also expressed their belief of the Appellant's guilt. Based on this, it is clear that Juror George is looking for the Appellant to disprove the news reports and gossip and has preconceived ideas that will necessitate proof on the Appellant's part in his mind before the State has even begun to present their case. This I akin to the error this Court found committed by the Trial Court in the case of Chamber v. State, 724 P.2d 776 (Okl. Cr. 1986) In that case the Court found that jurors who indicated their belief that the State and defendant shared the burden of proving the facts of the case should have been excused on the Defendant's challenge for cause. In the instant case, it is clear, despite any follow-up questions of the court, that Juror George intended, if served on the jury, to hold the Defendant to proof that rumors, newspaper articles, and persons presumptions that the Appellant was guilty need to be disproved by the Defendant. For this reason, the Appellant's challenge for cause of Juror George should have been granted.

JUROR WILSON

Juror Rodney Wilson was questioned during the voir dire process and in part gave the following responses:

"JUROR RODNEY WILSON: And that opinion would be, if I was the person who had committed the crime, I'd do whatever I could to get out of it. Whether that meant lying or whatever. I'd do whatever I could to get out of it. I would never admit that I did it."
JUROR RODNEY WILSON: " (Tr. 7/18/91 (Voir Dire) Pg. 38 ln. 21-25, and Pg. 39 ln. 1-6)
"JUROR RODNEY WILSON: Not other people. I don't think there's any reason for a witness to lie on the stand.
MR. CARLSON: What about a witness that's on trial for his life?
JUROR RODNEY WILSON: A witness. If the Defendant himself testifies, yes." (Tr. 7/18/91 (Voir Dire) pg. 55 ln. 20-25, and Pg. 56 ln. 1)
"MR. CARLSON: You said you didn't feel like a witness would do that to gain an advantage, but you do feel like a witness who's on trial for his life, the Defendant, Steve Allen - -
JUROR RODNEY WILSON: A witness that's on trial for his life, if he's guilty, I think he'd squirm and lie and do whatever he could to get off." (Tr. 7/18/91 (Voir Dire) Pg. 56 ln. 19-25)
"JUROR RODNEY WILSON: . . . '. . .as far as in a court or law, I believe the people should be professional enough, and law enforcement, in my opinion, I hope they are or they shouldn't be in that position, that they're going to do what they're supposed to do. The only person I see in the entire courtroom that would be different that has the option to do different than that or will do different than that, is a guilty Defendant on the witness stand." (Tr. 7/18/91 (Voir Dire) Pg. 57 ln. 19-25, and Pg. 58 ln. 1 and 2)

There is no question but that Juror Wilson expected the Appellant to lie if he was guilty and if necessary lie if even if innocent in order to avoid a guilty verdict. Not only that, but he saw absolutely no purpose to any other witness lying on the witness stand and that the Defendant was the only person in the process with any motivation of any kind to lie.

Juror Wilson also made the following comments concerning the death penalty:

"JUROR RODNEY WILSON: Assuming she was beaten to death with a blunt instrument and struck numerous times and somebody thought about it before hand, yea, I'd give the death penalty.
MR. CARLSON: Automatically in that instance?
JUROR RODNEY WILSON: I think so. I think that would satisfy my curiosity as far as or whatever my requirements for the death penalty were, sure" (Tr. 7/18/91 (Voir Dire) Pg. 47 ln. 23-25, and, Pg. 48 ln. 1-7)

This indicates Juror Wilson's previous disposition to give the death penalty as soon as the elements of first degree murder are satisfied in the juror's mind. In the case of Ross v. State, 717 P.2d 117 (Okl. Cr. 1986) the Court held that a prospective juror who indicates that he or she would automatically vote for the death penalty if the Defendant were found guilty of murder should be excluded from service. The basis for this is that it is incumbent upon said jurors to consider all possible punishments and evidence of aggravation and/or mitigation. (See 717 P.2d 117 at 120)

For that reason, the Court erred in not granting the Appellant's challenge for cause of Juror Wilson based upon pre-disposition to impose the death penalty, and his expressed intention to hold the Appellant to a different standard of credibility than that of any other witness.

JUROR VANAKEN

During questioning of Juror John Vanaken, he gave the following responses concerning his position on the death penalty:

"THE COURT: . . .Let me ask you first, Mr. Vanaken, has anything been mentioned in the questioning you heard Tuesday or Wednesday from the lawyers that would raise a question in your mind about whether or not you could or should serve on this case?
JUROR VANAKEN: Was the death penalty mentioned?
THE COURT: I don't know. Why do you ask?
JUROR VANAKEN: Well, I'm in favor of it." (Tr. 7/19/91 Pg. 60 ln. 16-23)
"MR. CARLSON: . . .You told us you're in favor of the death penalty. Is there anything about the way the other two penalties, from your experience and from what you've read with regard to the judicial system or the way they're handled, those being life imprisonment, life imprisonment without parole, is there anything about the way those are handled in our society that cause you concern?
JUROR VANAKEN: Well, yes, there really is. After all, often times the Courts put somebody away but due to good behavior and what not, they're released and after a certain length of time, and often times of course they commit another crime. This bothers me. And of course there is the cost of the State for imprisonment for life. And so those are some of the things that I think about when I think - - when I weigh the three.
MR. CARLSON: Okay. In this particular case if you went through the evidence, and let's assume for the moment that at the end of the evidence the jury were to find Steve guilty beyond reasonable doubt, and you're considering the sentencing phase in this particular case, would you agree with me that those factors might be such that they would cause you to lean more towards the death penalty than you would toward life imprisonment?
JUROR VANAKEN: Well, it's possible." (Tr. 7/19/91 Pg. 70 ln. 10-25, and, Pg. 71 ln. 1-8)

The foregoing statements, coupled with the fact that Mr. Vanaken was seventy-nine (79) years of age (Tr. 7/19/91 Pg. 61 ln. 14) and entitled to a statutory exemption from jury service, the Appellant can only infer that Juror Vanaken wanted on the jury for the purpose of seeing the Appellant given the death penalty. This same man, who had been a business leader in the City of Bartlesville for years and active in numerous civic programs also indicated that he had no knowledge of the most highly publicized case in Bartlesville in ten (10) years, and had never had the opportunity to discuss it with anyone. (Tr. 7/19/91 Pg. 62 ln. 11) Despite such an obvious desire to serve on the jury, and his predisposition towards the death penalty, the Court overruled Appellant's challenge for cause. Again, based upon the authority of Ross v. State, cited above, this was error.

Each of the foregoing jurors, George, Wilson and Vanaken, were stricken from the jury by the Appellant through use of Preemptory challenges which Appellant was forced to exercise on these jurors, when they should have been stricken for cause. A number of other jurors had expressed things of concern to Appellant's counsel which had to be considered when exercising Preemptory challenges. For instance, Juror Kitterman was of concern to Appellant's counsel for the reason that his brother was a Deputy Sheriff in Southwest Kansas, and was currently with the Fire Marshall's office as an investigator. (Tr. 7/19/91 Pg. 97 ln. 1-25) Juror Grogan was of concern to Appellant's counsel from the standpoint that he was heavily involved in professional business activities in the community, and something of a community leader. (Tr. 7/17/91 pg. 73 ln. 14-24 and Pg. 79 ln. 15-24) From that standpoint, and given the obvious community opinion of Appellant's guilt, counsel was concerned about Juror Grogan ability to make a decision against the public will. (Tr. 7/17/91 Pg. 71 ln. 14-25) Three (3) of the prospective jurors, Woody, McMurtery, and Wallace, admitted to having heard opinions of Appellant's guilt expressed to them. Each also admitted to recalling certain facts about the case that they had read in the newspaper. (Tr. 7/17/91 Pg. 170 ln. 16, and, Tr. 6 Pg. 89 ln. 19, and , Tr. 8 Pg. 4 ln. 6) These were the only three (3) remaining jurors who had admitted to having heard or discussed opinions of Appellant's guilt prior to trial. But, Appellant was prevented from exercising Preemptory challenges for any of the five (5) foregoing jurors mentioned as the concerns which Appellant's counsel and Appellant had about these five (5) were less than those of Jurors George, Wilson, and Vanaken. And, as it turned out, Juror Grogan became the foreman of the jury. Based on the foregoing, error was clearly committed by the Court in not granting the challenges for cause for the named jurors, and in thus requiring the Appellant to exercise peremptory challenges as to jurors who should have been excused for cause.

PROPOSITION NO. 6

THAT THE TRIAL COURT COMMITTED ERRED IN ALLOWING NUMEROUS EVIDENTIARY MATTERS TO BE PRESENTED TO THE JURY, EACH OF WHICH CONSTITUTES REVERSIBLE ERROR.

By the trial, the Appellant filed numerous Motions in Limine, some of which were sustained, and some of which were not. Also, during the course of the trial, various evidentiary ruling were made, over the objection of Appellant, allowing certain evidence into the trial which constitute reversible error, each of these items will be discussed separately below.

A. DEBORAH AUBREY AFFAIR

The State of Oklahoma filed on July 22nd, 1991, its Notice of Intent to Offer Evidence of Other Crimes. (O.R. 1105) The Notice alleged six (6) (counts) of adultery committed by the Appellant with one Deborah Aubrey. In response to this Notice, on July 22nd, 1991, the Appellant filed a Motion in Limine seeking an Order from the Court to prevent any testimony concerning such alleged acts from being presented in evidence. In addition, the Appellant filed a Brief in Support of his Motion in Limine concerning the alleged acts of adultery.(O.R. 1107 and 1109)

Briefly, the evidence presented to the court indicated that an extra marital sexual relationship between the Appellant and Deborah Aubrey occurred between August of 1989 and early January 1990. At that point, according to statements taken by the Oklahoma State Bureau of Investigation from Ms. Aubrey, the physical relationship ended in January 1990. Correspondence between the two (2) continued by way of electronic mail at Phillips Petroleum Company through the time of Mrs. Allen's death. The State of Oklahoma represented to the Court that the relationship was relevant to the issue of the Appellant's motive. (Tr. 6/21/91 Pg. 48 ln. 6) It was the State's assertion, despite accepting that the physical relationship was over six (6) months before Mrs. Allen's death, that the continued correspondence and feeling expressed in that correspondence indicated the Defendant's state of mind and motive.

It should first be noted, that a review of the entire record prior to trial and during the course of the trial will show that not one shred of evidence indicated that the Deceased, Mrs. Allen, had ever discussed this relationship with her husband or was aware of its existence. Quite the contrary, the State's own evidence, in addition to its stipulation that the physical relationship had ended, showed that the Appellant was in fact committed to his marriage and to addressing any difficulties he perceived to exist. This came by way of a letter prepared by Appellant and provided to his wife. (See State's Exhibit No. 61 and Tr. 11 Pg. 201-205)

The Court, initially commented that the affair was not relevant, (Tr. 0 Pg. 56 ln. 24 and 25) but, eventually ruled that the relationship was evidence of the Appellant's state of mind and possible motive. (Tr. 7/12/91 Pg. 12 ln. 2-5) The Court's ruling was in error for number of reasons.

First, the only state of mind which would have been relevant to a charge of pre-meditated murder would be evidence of his inclination to kill his wife. The existence of a previous sexual relationship and the continued friendship between Appellant and Deborah Aubrey in no way indicated that Appellant was inclined to kill his wife. The only state of mind exhibited by the terminated physical relationship and the continued friendship was that a portion of his marital life was unsatisfactory. If evidence of dissatisfaction in the physical relationship between a husband d and wife is relevant evidence to either spouse's propensity to kill the other, then statistics will bear out that millions of American spouses, male and female, are in peril of death. Second, by the State's own admission, the physical relationship had ended by mutual agreement of Appellant and Deborah Aubrey. (Tr. 7/23,25,26/91 Pg. 118 ln. 1-5) Logic does not support the State's position that a person willing to murder his wife because of his dissatisfaction in the marriage recognized six (6) months before doing so that, for moral and religious reasons, he would not continue a physical affair. It should be noted at this point, that the State did not even argue in closing argument that the physical relationship between Appellant and Deborah Aubrey was the reason Mrs. Allen was killed. The only reference to the evidence concerning the relationship between Appellant and Deborah Aubrey were couched in sarcastic phrases concerning Appellant and Deborah Aubrey's testimony, but never argument that the relationship drove Appellant to the murder of his wife. Instead, it was simply referred to in order to inflame the jury against Appellant for having the physical relationship (Tr. 8/6,9.12/91 Pg. 143 and Pg. 144 ln. 2-11) Finally, the Court's ruling was in error for the reason that any perceived probative value said information had concerning motive was far out weighed by the obvious prejudicial value it provided to the State.

In the case of Burks v. State, 595 P.2d 771 (Okl. Cr. 1979) the Court of Criminal Appeals mad the following observations concerning the introduction of other crimes evidence:

"The general rule is that when one is put on trial, one is to be convicted - - if at all - - by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses connected with that for which one is on trial must be excluded." Id. At 722.

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"We have previously stated that 'for evidence of other offenses to be admissible, there must be a visible connection between the crimes.'" [Citations omitted] "This is but another way of stating that in order to be admissible the evidence must have probative value." Id. at 773. [Emphasis added]

It can not be reasonably argued that the State's desire to present evidence of six (6) instances or acts of adultery by the Appellant, the last of which was over five (5) months before the death of Sandra Allen, has a visible connection to the death of Sandra Allen. The ultimate question in Appellant's trial before the District Court was whether or not he was present at the time that Sandra Allen was murdered. Proof of the terminated adulterous relationship does not in any way prove whether or not the Appellant was present in his home when Sandra Allen was killed. The State provided abundant physical evidence in an effort to prove the Appellant was present at the time she was killed. Title 12 O.S. Section 2401 provides as follows:

"Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence."

It can not be emphasized enough, that the real issue was whether or not the Appellant was present. It was not incumbent upon the State of Oklahoma to provide a motive in order to convict the Appellant. Therefore, if a motive is not necessary to the State's case evidence of adultery is not necessary. Further, the evidence of the adultery itself never, in argument to the Court on the Motion in Limine or, during the course of the trial itself, indicated that the Appellant ever intended as a result of the relationship to terminate his marriage. The only evidence presented was in fact that the adulterous relationship ended. The evidence simply does not tend to make any fact of consequence in the case more probable than without it.

In the case of Stowe v. State, 590 P.2d 679 (Okl. Cr. 1979) the Court of Criminal Appeals stated the following in connection with other crimes evidence:

"The five exceptions in the foregoing rule are not without limit. Once the trial court determines that the evidence of other crimes fits into an exception of the general rule the admissibility of such evidence is still conditioned upon a finding that the probative value of the evidence out weighs prejudice to the accused." Id. At 682. [Emphasis added]

This is in essence the rule found in Title 12 O.S. Section 2403. The information the Court allowed in an effort to prove a motive was, at best, tenuous for that purpose. What can not be argued, is that a man on trial for the murder of his wife will, in every instance, be highly prejudiced by the introduction of any extra marital relationship at any time, without a doubt, introduced for the sole purpose of maligning the Appellant's character before the jury. As indicated earlier, the State did not even argue that the acts of adultery were in fact the motive behind Sandra Allen's death. The State's obvious purpose for the introduction of the evidence is characterized by the following:

"Deborah Aubrey. Stephen Allen's lover. His special friend. . . . He didn't love her, he simply had sex with her." (Tr. 8/6,9,12/91 Pg. 144 ln. 2-8)

The purpose was to make the Appellant a bad man. And that purpose and the affect it has on the jury far out weighed any possible probative value which said information could provide and constituted error when the Court allowed it to be presented.

B. IMPROPER REBUTTAL EVIDENCE BY WITNESS TOM BEVEL

Following the close of Appellant's case, the Sate indicated to the Court its intention to present several rebuttal witnesses. Among those was one Captain Tom Bevel on the issue of blood spatter. (See Tr. 19 Pg. 50 ln. 22-25 and Pg. 51 ln. 1-18)

In essence, the State intended to put on another expert witness for the purpose of critiquing Appellant's expert witness and, for introducing evidence of experiments in the area of blood spatter in an effort to prove the theory of their case.

Extensive argument was held concerning this rebuttal testimony. The essence of Appellant's argument was that the State, in its Case in Chief, called its expert witness on the issue of blood spatter. O.S.B.I. agent Perkins testified at length concerning the Appellant's clothing, the hammer, his opinions based on the review of that evidence, and technically how he supported his opinions based on the evidence. The Appellant, in his defense, brought two (2) experts, Epstein and Lauber, who had also reviewed the clothing of the Appellant, crime scene, hammer, and crime scene photographs. From those observations, and from experiments which were presented to the jury by way of demonstration and photographs, they testified that the Appellant's version of what he did upon finding his wife was consistent with the blood spatter evidence. At that point in the trial, Appellant's position is that the State raised in its Case in Chief the issue of proof of the Appellant's presence at the scene at the time of her death. The state chose to rely solely upon the review of the evidence by witness Perkins and his technical explanation of blood spatter as relates to that evidence. The Appellant, instead, through his witnesses Epstein and Lauber, opted to support their conclusions in a different fashion. But, the States was not satisfied with its proof in its Case in Chief. For that reason they offered the testimony of witness Bevel to support their expert Perkins' opinion. The Court denied the admission of witness Bevel's experiments, as said experiments were not disclosed to defense in accordance with Discovery Orders made by the Court. But, the witness was allowed to "critique" the Appellant's expert witnesses' opinion. Appellant's position is that this constituted error in that no new evidence was raised by the Appellant's defense. The difference was the Appellant's way of presenting his opinion concerning the blood spatter evidence.

In Plumlee v. State, 361 P.2d 223 (Okl. Cr. 1961) the Court of Criminal Appeals indicated as follows:

"The court should not permit a rehash of a witness' testimony given in chief under the guise of rebuttal. Counsel for the State have no more right to reserve the principal testimony and introduce it under the guise of rebuttal nor to rehash testimony introduced in chief under the guise of rebuttal, then the accused would have to reintroduce his testimony after the State has closed the rebuttal." Id. At 225.

That which Plumlee does not allow was done in the instant case. Witness bevel was allowed to rehash the testimony given by witness Perkins concerning the State's theory of haw the clothing represented evidence of the Appellant having been present when the blows were struck on his wife. The only difference between witness Bevel's testimony and witness Perkins' testimony was that witness Bevel did a critique of witnesses Epstein and Lauber's method of arriving at their opinion.

Therefore, the rebuttal testimony of witness Bevel was inappropriate because it was not, in the true sense, rebuttal. Further, it would be Appellant's position that rebuttal testimony is no longer admissible in any instance in criminal cases as a result of the Court's Allen decision concerning discovery. Prior to trial, the photographs of Appellant's witnesses Epstein and Lauber, were provided to the State. Their conclusions that the Appellant's story was consistent with the evidence and their testing was known to the State before trial. Appellant's understanding of the purposes for the State's rebuttal was to rebut that which was newly injected into the evidence by Appellant's Case in Chief. But, if the State is aware of the evidence Appellant intends to produce, then they can counter act any such evidence in their Case in Chief.

More importantly, in this specific instance, Appellant believes that the record shows the State's intention to bring witness Bevel as a rebuttal witness, and desire to do so in order to have the last word on the blood spatter evidence. First, on July 18th, 1991, during the course of voir dire, but out of the hearing of the jury, the following exchange took place:

"MR. CORGAN: ...Obviously the State needs to know as far as any potential or possible rebuttal witnesses. I don't know that we'll have any. We may. The State's position is that we do not have to give notice of those or do not have to endorse those, but I wanted to be clear as far as the Court's position on that prior to getting into trial...
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THE COURT: Well, for the record, show the motion to require the endorsement of rebuttal witnesses denied. It would be a contradiction in terms." (Tr. 7/18/91 Pg. 2 ln. 22-25 and Pg. 3 ln. 1-3 and ln. 14-16)

It's clear from the foregoing passage that the State had witnesses in mind for rebuttal which they sought the Court's guidance as to the need for disclosure. It is also clear from the following passage that witness Bevel was on such witness:

"MR. CORGAN : . . .Now, I'm not going to sit here and tell the Court that I haven't had discussions with Mr. Bevel because I have.
He is a rebuttal witness. We've been given guidance by the Court that we did not have to disclose that information as to rebuttal." (Tr. 8/7,8,10/91 Pg. 61 ln. 10-12 and 9-21)

No other conclusion can be drawn from the foregoing passages other than the State fully intended to have an expert witness waiting in the wings prepared to criticize any expert testimony which the Appellant put on as regards blood spatter. But, the evidence which they sought to put on, and did put on, was evidence which they could have produced in their Case in Chief. Again, it is re-emphasized that the State had the photographs depicting all of the experiments from the Appellant's witnesses well prior to trial. But, there is no question that the State was trying to split its case in chief by having the last presentation of such evidence before the jury begins its deliberations on important evidentiary issues. But neither can it be argued that that is a proper motivation for the State to save evidence that should be presented in its Case in Chief. For this reason, the Court erred in allowing the testimony of witness Bevel to be presented.

C. WITNESS ALAN EASTMAN

In addition to the testimony of witness Bevel, the State also presented Alan Eastman in rebuttal. Mr. Eastman's rebuttal testimony consisted of a statement purportedly made to him by the Appellant following the funeral for Appellant's wife. The purported statement was to the effect that Appellant didn't know whether he did it or not, he didn't remember what happened. (Tr. 8/7,8/10/91 Pg. 16 ln. 3-6) A prior State witness, Robert Herring, had testified to such a statement also being made following the funeral by Appellant. Appellant in his own testimony denied the making of such statements.

The presentation of Alan Eastman as a rebuttal witness was improper for a number of reasons. First, Appellant had not been provided with notice of this statement prior to the time that Alan Eastman was called to testify. (Tr. 8/7,8,10/91 Pg. 7 ln. 6-24) This then violated the Court's Discovery Order concerning providing Appellant with all of his own statements, whether the statements were to be brought out in rebuttal or not. Further, it is clear that the State was aware of this statement prior to the time they began putting on their Case in Chief. Witness Eastman testified before the Court, in chambers, that he had informed the District Attorney himself of the statement on July 20th or 21st. (Tr. 8/7,8,10/91 Pg. 4 ln. 16 and 17) This would have been shortly before the State began presenting evidence.

Another reason the presentation of this statement was improper was, as with witness Bevel, it was not rebuttal to put on a second witness with similar evidence in rebuttal for the purpose of making a lasting impression on the jury. The Appellant, in his Case in Chief, simply explained the circumstances and his recollection of the statement to witness Robert Herring. Again, nothing new was raised, but, the State's evidence simply met head on.

The harm suffered by Appellant in this instance was clear in that the witness, Robert Herring, had been significantly impeached during his testimony by Appellant's counsel by reason of his testimony being contradicted by a prior tape recorded statement. (Tr. 7/17,19,23/91 Pg. 213 and 214) The Appellant did not have the same opportunity to prepare for the statement of Alan Eastman as he was not notified of the State's intention to present any such testimony until the day of his appearance or that the State even had such a statement purportedly made by the Appellant to Alan Eastman all in direct violation of the Trial Court's discovery orders. For all the foregoing reasons it was error for the Court to allow the rebuttal testimony of witness Alan Eastman.

PROPOSITION NO. 7

THE COURT ERRED IN ALLOWING THE STATE TO QUALIFY EXPERT WITNESS BADEN WITH UNSUBSTANTIATED AND EXTRANEOUS MATTER.

Appellant called as his expert in the field of forensic pathology Dr. Michael Baden. In qualifying Dr. Baden, it is apparent that his credentials were unquestionable. He was for a number of years the Deputy Chief Medical Examiner for the City of New York, and for a period of time, the Chief Medical Examiner for the City of New York. Since 1985 and through the time of trial, was the Director of Forensic Sciences for the New York State Police. He was also, a Professor at two (2) universities in the area of forensic medicine and a lecturer in another one. Finally, Dr. Baden had been appointed the Forensic Pathology Panel of the United States Congress Select Committee on assassinations and was its Chairman from 1977 to 1980. This Committee reviewed the death of President John F. Kennedy and Dr. Martin Luther King. At the point that Appellant's counsel began to question the doctor concerning the death of Sandra Allen, State's counsel requested the opportunity to voir dire Dr. Baden on his credentials.

First, he was questioned as to whether or not he had been fired after a dispute with Mayor Koch of New York City. Witness Baden characterized the situation as a political struggle between he as Chief Medical Examiner and Mayor Koch for the city. Counsel for the State then argued with the witness that it was in part as a result of the highly publicized autopsy of former New York Governor Rockefeller. Further, State's counsel brought up issues of hiring commitments Dr. Baden allegedly made while medical examiner for the City of New York. Neither of the foregoing had anything to do with Dr. Baden's qualifications as a forensic pathologist. Then, State's counsel raised an issue of the Medical Examiner's Office for New York City losing evidence in two (2) cases. The doctor explained that the evidence in one (1) case was lost prior to him assuming the Chief Medical Examiner position. The other piece of evidence the doctor maintained had been found, again occurring only about the time that he became Chief Medical Examiner. All of the foregoing occurred in the presence of the jury and had absolutely nothing to do with the qualification s of Dr. Baden as a Medical Examiner. (Tr. 8/2,6,7/1 Pg. 13-25) Appellant objected at the very outset of this line of questioning as being irrelevant to the doctor's qualifications as a forensic pathologist but was overrulled. (Tr. 8/2,6,7,/91 Pg. 14 ln. 4-8) This information which came out before the jury was elicited for no other purpose than to try and embarrass Dr. Baden over political and legal skirmishes he had had in his past as a medical examiner for New York City.

The State's attorney continued with further information outside the presence of the jury concerning a certificate of death which was changed by Dr. Baden without an autopsy, a case in which occurred in the mid-1970's. Also, State's attorney voir dired Dr. Baden upon his participation in the autopsy of Montgomery Cliff and Dr. Baden's wife, also a physician, having been present during the autopsy and supposedly disclosing details of the autopsy at a brunch. (Tr. 8/2,6,7/91 Pg. 41 ln. 15-24) Counsel for Appellant at this point demanded that information to support such allegations be provided in order to support the State's good faith presentation of such issues. The case concerning the changed certificate of death was presented to Dr. Baden by way of newspaper articles. The allegation concerning a brunch discussion about Montgomery Cliff's autopsy was never supported by any documentation. The reason for this was that the Trial Court never required the State to present any such information that indicated these allegations were made in good faith. A review of the entire voir dire, both before and out of the presence of the jury, indicates that the Trial Court clearly had no concept of what was properly brought to Dr. Baden's attention in an effort to test his credentials as a forensic pathologist. Title 12 O.S. Section 2401 defines relevant evidence as that having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. The purpose of allowing opposing counsel to voir dire an expert prior to the rendition of his opinion is to test his qualifications. In this case the qualification being put forth was that of a forensic pathologist. The information offered by the State to test this qualification was totally irrelevant, prejudicial, and confusing. Under Section 2402 and 2403 of the Evidence Code, this line of questioning should not have been admitted for any purpose The only clear conclusion counsel for Appellant can draw from the Court's ruling concerning the State's voir dire of Dr. Baden was that the Trial Court recognized the qualifications of Dr. Baden and that the State needed help in diverting some attention away from Dr. Baden's testimony. As is clear from the face of the record, all of the totally irrelevant material the State presented as voir dire of Dr. Baden occurred prior to 1977. But, 1977 was the year which Dr. Baden was appointed to the Congressional Committee, as its Head, to investigate certain assassinations including one (1) of this Country's Presidents. Certainly, if the U.S. Congress in 1977, when all this information must have been fresh, believed Dr. Baden qualified to lead such a Congressional Panel, the Trial Court should have recognized the irrelevance of the information as it pertained to Dr. Baden's qualifications as a forensic pathologist. The Court was also presented with information that Dr. Baden had been consulted by the Los Angeles District Attorney in the matters of the death of John Belushi, and a Mississippi District Attorney for the death of Medger Evers. Further, that Dr. Baden testifies all over the Country on behalf of the prosecution as a consulting forensic pathologist. (Tr. 8/2,6,7/91 Pg. 44 ln. 3/24) But, despite that, the Court allowed the State's attorney to again question Dr. Baden in the presence of the jury about the changed certificate of death. This so-called voir dire of the witness constituted nothing more than an attempt on the State's part to embarrass the doctor in front of the jury while never touching on his credentials as a forensic pathologist. And, over strenuous objections and arguments and Motions for Mis-trial from the Appellant, the Court simply gave his blessing to the line of questioning in the State's obvious attempt to prejudice the jury against the Appellant's imminent forensic expert.

PROPOSITION NO. 8

THE COURT ERRED IN EXCLUDING FROM EVIDENCE THE AUDIO PORTION OF THE POLICE DEPARTMENT'S CRIME SCENE VIDEO.

Sometime in the two (2) hours following Appellant's call to 911, a member of the Bartlesville Police Department brought to the crime scene a video camera. The video camera was used to film certain portions of the house and driveway attached to the house. The Appellant sought the introduction of this video tape for one reason. The tape indicated the large number of police detectives, officers and the District Attorney himself, present in the house before it was processed as a crime scene. (See Appellant's Exhibit No. 18) But, the Court did not allow the Appellant's witness, Blair Gluba, during his testimony when the tape was played, to have the audio portion of the tape heard by the jury. (Tr. 7/24,29,30/91 Pg. 263 ln. 22-25, and Pg. 264 ln 1-5) The audio portion of the tape contains numerous statements mad by police officers indicating, at least three (3) things. First, the Bartlesville Police Chief, Tom Holland, question s Detective, Eddie Mason, as to whether or not it is his crime scene. The Detective responds on the tape audio that there are too many people walking around the crime scene. This is one of the Appellant's contentions against the law enforcement's handling of the crime scene and the loss of evidence clearing the Appellant as a result. Second, it clearly indicates that the Police Chief and Detective Eddie Mason do not believe the theory of a burglar from their quick perusal of the crime scene. Third and finally, it indicates that the police officers are already convinced that the Appellant is the person they are looking for and are extremely concerned about getting consent from Appellant to search his house and vehicles. These are the very things that Appellant's witness Blair Gluba pointed out to the jury as being problems with the police investigation of Sandra Allen's murder. Obviously it's a problem when numerous officers, whose presence are unnecessary on the scene, tramp all through and around the area where important trace evidence could exist before the crime scene is processed for such information. Also, Appellant complained extensively that the police department's early decision that Appellant was the prime suspect led them to proceed in a fashion not to collect all the evidence available but, to only conduct an investigation sufficient to convict the Appellant.

The fact that the audio portion of the video tape is, at points, unclear, is not sufficient to exclude it from the jury's consideration. In the case of Oklahoma Bar Association v. James, 463 P.2d 972 (Okl. 1969). The Oklahoma Supreme Court made the following observation concerning tape recordings which are in part, inaudible:

"The tapes were played and while we may be inclined to agree that in certain parts the tapes are rather indistinct, in other portions the tapes are adequate to at least corroborate the oral testimony of Ivy as the nature of the conversations. We hold that the tape recordings were properly admitted in evidence." Id. At 975 and 976

That each voice or statement made is not totally audible is not important. The important thing from the Appellant's standpoint was, that it would impeach the testimony of some of the police officers assertions that the Appellant was not initially zeroed in as a suspect for some time and that the case was treated as one in which the police were looking for a killer-at-large. I also impeached their testimony when law enforcement's own statements are on the audio stating that there are too many people trampling over the crime scene. Further, the fact that some voices are unidentifiable as to the speaker's identity is unimportant because it is clear that the police department is at that time totally in control of the crime scene, and that someone authorized to be there by the police department has made the statement. Therefore, the Court committed error in not allowing the Appellant to present the audio portion of the crime scene video tape to the jury.

PROPOSITION NO. 9

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A GUILTY VERDICT.

The evidence presented by the State and Appellant did not provide the jury with sufficient evidence to support their verdict of guilty. The State's theory of the case was unclear on some issues, and , on those issues which are clear, they did not support it with sufficient evidence. Basically, the State's case was that Appellant had planned the murder of his wife and, one (1) point always unclear, was that Appellant prestaged a break-in and struggle in the residence and killed his wife when she arrived home from work or, that she was killed and a break-in and struggle was then staged. Further, that the weapon used by Appellant, a ball peen hammer, was then taken to the attic and hidden by him prior to contacting 911. Further, that the motive for this entire situation was that he was unhappy with his marital physical relationship and was having an affair with another woman.

A. APPELLANT PROVED THE EXISTENCE OF A CONTACT LENS AT THE SCENE NOT BELONGING TO APPELLANT OR HIS DECEASED WIFE.

As was briefly discussed before in relation to the Court's questioning of the State Medical Examiner, a contact lens was found on the body of the Deceased at the time the autopsy procedure was begun. Appellant produced testimony that Dr. Hemphill, the State Medical Examiner, removed the contact lens from the Deceased's body himself. (Tr. 8/2,6,7/91 Pg. 101 ln. 6-14) Next Appellant produced testimony from the medical examiner's assistant, Dan Dooley. Mr. Dooley testified the Dr. Hemphill then handed the contact lens to Mr. Dooley wherein it was logged on the evidence sheet and packaged. Appellant then produced the testimony of Dr. A. E. Reynolds, whose qualifications in the area of contact lenses was phenomenal. (Tr. 7/30,8/1/91 Pg. 176-181) Dr. Reynolds observed the contact lens and determined the power of that contact lens which was different from that of the prescription for Sandra Allen. (Tr. 7/30,8/1/91 Pg. 185 ln. 22 and, Pg. 188 ln. 1-7) (The power of her lens was established through her optometrist by his testimony as summarized in Appellant's Exhibit No. 26) Next, the Appellant presented the testimony of Larry Burk, who was a Branch Manager of a firm producing glasses and contact lenses. Mr. Burk, unknown to Appellant and at the request of Dr. Reynolds, also independently read the power of the contact lens removed from Sandra Allen's body and also determined it to not be her prescription. (Tr. 7/30,8/1/91 Pg. 207 ln. 7-10) Mr. Burk indicated to the jury that his experience in determining the power of contact lenses included formerly reading from one hundred (100) to one hundred and sixty (160) lenses each day. (Tr. 7/30,8/1/91 Pg. 206 ln. 7-8) At that point in the trial, and almost some fourteen (14) months following the death of Sandra Allen, that is where the evidence stood. But, near the last stages of the trial, the State indicated a witness from the Bartlesville area hospital emergency room had come forward with information about the contact lenses. At that point, the Appellant produced the testimony of witness Diane Horseman who testified that she took two (2) lenses off of Sandra Allen's cheeks and to the best of her knowledge handed both lenses to the ambulance driver next to her. (Tr. 8/2,6,7/91 Pg. 259 ln. 3-6 and, ln. 18-21) Next, Appellant presented testimony from the ambulance driver, Ed Conley, wherein he indicated that he, to the best of his knowledge, received both lenses from witness Horseman and gave those to someone at the front desk in the emergency room for storage. (Tr. 8/2,6,7/91 Pg. 265 ln. 20-25 and, Pg. 267 ln. 19-21, and, Pg. 268 ln. 4-8)

What this information provides is that one (1), a contact lens not belonging to Sandra Allen was found on her body at the time of the autopsy. Second, that the nurse and ambulance driver, to the best of their knowledge and abilities, removed Mrs. Allen's contact lenses from her person when she was in the emergency room. The State's theory on this evidence is that one (1), the contact lens power wasn't off so much and someone could have made a mistake in giving her the wrong power, and, that a trained and qualified nurse and ambulance driver were not careful enough to avoid dropping a contact lens onto a patient with open wounds. Further, it was not contested that the Appellant never has owned or never worn contact lenses.

What this evidence indicates, beyond reasonable doubt, is that some person, not the Appellant, had their contact lens fall onto Sandra Allen's body at or near the time of her death.

B. NO MOTIVE.

The State, in its Burks notice provided what it contended was the motive for the murder of Sandra Allen, that being the Appellant's relationship with Deborah Aubrey. ( 6/21/91 Pg. 48 ln. 4-6) But, as previously set forth, the State's own evidence was that the physical relationship between Appellant and Mrs. Aubrey had ended in January, almost six (6) months prior to the death of Mrs. Allen, Further, the State introduced evidence not of a man determined to end his martial relationship, but, totally opposite, a man determined to make his marriage work. In this regard the State presented its Exhibit No. 61, page 26, which was read to the jury by the Court's bailiff. (Tr. 7/23,25,26/91 Pg. 201 ln. 24 and 25, Pg. 202, 203, 204 and, 205) And further, as addressed above, the Sate, even in its closing argument, did not argue that the motive for the killing of Sandra Allen was this relationship between Appellant and Deborah Aubrey. Only sarcasm and thinly veiled labels of adulterer were the result of all the evidence presented to the jury on this topic.

C. SANDRA ALLEN'S UNUSUAL PHONE CALL AT WORK SHORTLY BEFORE HER DEATH.

Evidence was presented to the jury that within an hour and half of her death, while at work, Sandra Allen received a telephone call. The telephone call was originally answered by a co-worker and referred to her. In essence, the caller was looking for the Appellant and indicated that he was an old classmate of Appellant's. But, Sandra Allen having gone to school with Appellant would have know all of his acquaintances, and when confronted with this information, the caller hung up. Neither did Sandra Allen recognize the name given to her by the caller. The caller also addressed Mrs. Allen as "Sandy", a name only used by persons at her place of employment, otherwise, all other persons called her by Sandra. All of this information was imparted to the co-worker and to Appellant when he visited his wife at work that evening prior to her death. (Tr. 7/24,29,30/91 Pg. 58-60) This call can not be labeled as mere coincidence. It clearly indicates the involvement of some who knew Sandra Allen, but not her true name of Sandra, and who knew of Appellant. But, it also indicates that the person did not know their background well enough that they had gone to school together practically all their lives. Finally, Sandra Allen did not identify the voice as that of the Appellant's. The co-worker, though stating she thought it was the Appellant admitted both at trial and at Preliminary Hearing that she could not identify the voice. (Tr. 3/25,26,27/91 II Pg. 67 ln. 11 and 12, and, ln. 23-25; Tr. 14 Pg. 64 ln. 13-15) This call remains unexplained by the State and likely will always remain unexplained.

D. BLOOD SPATTER EVIDENCE WAS CONSISTENT WITH APPELLANT'S STATED ACTIONS.

The State's primary witness concerning blood spatter evidence was Douglas Perkins. Mr. Perkins based his analysis on a review of the shirt Appellant was wearing and the shoes Appellant was wearing. These conclusions were drawn without having viewed the scene of the murder and without having viewed the shorts which Appellant was wearing at the time in any significant way. Appellant's blood spatter testimony came from witness Bart Epstein and Terry Lauber. Mr. Epstein has been with the Minnesota Forensic Laboratory since 1966. This laboratory provides Minnesota with their forensic laboratory work. Since 1981 he has been the Assistant Laboratory Director with special responsibilities for the largest laboratory which utilizes fifty-five (55) scientists. He had worked on approximately fifteen hundred (1,500) cases in twenty-five (25) years and testified between one hundred and fifty (150) and one hundred and seventy-five (175) times. Further, he and Mr. Lauber had conducted fourteen (14) three (3) to five (5) day work shops teaching law enforcement both inside the United States and outside the United States blood spatter evaluation techniques. Mr. Lauber also employed in the Minnesota Forensic Science Laboratory, he for twenty-two (22) years, and is now the Supervisor of the Biology Unit of that laboratory supervising sixteen (16) other scientists. He also continues to actively process crime scenes. The credentials of Mr. Epstein and Lauber cover extensive portion of the transcript and no other conclusion can be drawn other than they are highly respected in the field of blood spatter interpretation and are, with rare exception, experts for the prosecution.

Following a detailed analysis of the statements from the witnesses, the crime scene photographs, the Appellant's statement, the alleged murder weapon, and, the crime scene itself still in the condition as left by the Bartlesville Police Department, Mr. Lauber's opinion was that all of the stains contained on Appellant's clothing were consistent with the actions be detailed to the police the night of the murder. Further, based upon the crime scene investigation and the location of certain tissues in blood spatter at the scene, and the total lack of such tissues on the Appellant's clothing, his opinion was that it was not possible for Appellant to fabricate a story containing all the variables necessary to create the blood stain patterns on his clothing and to have killed Sandra Allen and avoided any contact with tissue as was present at the scene. (Tr. 8/6,9,12/91 Pg. 40 ln. 3-25, and, Pg. 41 ln. 1-17) It should further be noted that witnesses Epstein and Lauber performed their evaluation by first each evaluating the evidence totally and separately apart from each other and then review each other's conclusions to form one (1) report which they both agree upon, and report the findings to the client, favorable or unfavorable. (Tr. 8/7,8,10/91 Pg. 274 ln. 1-21) The State's witness Perkins, had no explanation for the lack of tissue found on the Appellant's clothing as was found at the crime scene. Further, he also failed to evaluate the Appellant's shirt as said shirt would have been worn, but instead, evaluated the spatter evidence with the shirt laying flat, thereby causing himself to be unable to determine a true front and back of the shirt. (Tr. 8/1,5,6/91 Pg. 278 ln. 5-12) it it clear that the expert witnesses for the Appellant, in terms of training, recognition in the field, and over all experience provided the jury with, at a minimum, total and absolute doubt as to whether or not the Appellant's clothing indicated his presence at the time of Sandra Allen's death,. Further, based on their background as scientists for the State of Minnesota and almost exclusively prosecution witnesses, it could not even remotely be argued, as the State did, that these two (2) men were "hired guns" interested in seeing a guilty man set free for a fee.

E. THE ALLEGED MURDER WEAPON COULD NOT HAVE BEEN THE SOURCE OF SANDRA ALLEN'S WOUNDS.

The absolutely most damaging piece of evidence against the Appellant was the fact that he hid a ball peen hammer in the attic following the discovery of his wife's body. As noted in earlier discussion, this was the fact most remembered by every person having been exposed to the media surrounding this case. It became critical for both the State and the Appellant to determine whether or not the ball peen hammer was in fact he weapon used to inflict injuries upon Sandra Allen.

The State's best statement, concerning the possibility of the hammer being used to inflict Sandra Allen's injuries came from Dr. Robert Hemphill, the State Medical Examiner. The following quotations are from Dr. Hemphill's testimony concerning the hammer as a weapon, the responses being prompted by questions from both the State and Appellant's counsel:

"A. Well, it means that I just don't know what the object was; and I don't see anything here that gives a very clear indication of what it was." (Tr. 7/23,25,26/91 Pg. 265 ln. 16-18)
A. My opinion is, yes, it could have.
Q. Can you exclude that as being used to cause those injuries?
A. No, I can not." (Tr. 7/23,25,26/91 Pg. 265 ln. 17-20)
"Q. Doctor, as you've viewed the particular injury pattern in regard to this particular case, you would agree with me, would you not, that you saw nothing that was particularly characteristic of the injury pattern of a ball-peen hammer; isn't that correct?
A. That's correct." (Tr. 7/23,25,26/91 Pg. 282 ln. 10-15)
"So I'm not suggesting that a hammer was or was not used here. I don't know."
All I'm saying is that I do not believe that I can logically and scientifically exclude this instrument. I think it could have caused these injuries." (Tr. 7/23,25,26/91 Pg. 289 ln. 14-18)

At Preliminary Hearing, the doctor's testimony on this topic included the following:

"But, again, it is not absolutely typical; and I don't feel that medically I could say that there's any indication here that a hammer definitely was used." (Tr. 3/25,26,27/91 II Pg. 22 ln. 25, and, pg. 23 ln. 1 and 2)

On the other hand, Dr. Michael Baden, the Appellant's forensic pathologist, testified that a hammer causes very characteristic and specific type tearing leaving impression on the skin and causing tears of a crescent shape nature. Further, due to the centralized weight of the hammer, bone beneath the skin will typically be fractured in semi-circular shapes. Based on the total lack of this type of injury to Sandra Allen, and based on the fact that the injures are linear and clearly longer than the hammer itself, that his opinion was the ball peen hammer could not have cause the injuries to Sandra Allen. (Tr. 8/2,6,7/91 Pg. 62, 63, and 64)

Next, concerning the hammer, was evidence on the hammer itself. The State's first witness to look at the hammer found a stain of human blood with antigen 'H' activity on the handle of the hammer. (Tr. 7/24,29,30/91 Pg. 30 ln. 4-6) No blood was found on the head of the hammer by either this witness, Lynette Lee, or the State's other witness who looked at the hammer, Douglas Perkins.

In a much more thorough examination, the Appellant's witnesses who viewed the hammer, Peter Barnett and Terry Lauber tested further in their efforts to determine whether or not the hammer had in fact been used to inflict the injuries on Mrs. Allen. In doing so, each of these witnesses, independent of the other, pulled the nails in the top of the hammer holding it to the handle and took scrappings from the crevices in the top of the handle, under the nail, and pulled the head for samples from there. Both men testified that no blood residue was found. The only blood found was that consistent with Appellant's story, that the handle of the hammer where he had touched it was wiped off leaving blood wiped on the handle. The obvious purpose for checking all the cracks and crevices of the hammer was, in an effort to determine whether the head, which exhibited no residue of blood, had been washed along with the rest of the hammer. (Tr. 7/30,8/1/91 Pg. 244, 245, and 246; and Tr. 16 Pg. 21 ln. 17-25, and , Pg. 22 ln. 1; Tr. 18 Pg. 27 ln. 11-25, and , Pg. 28 and Pg. 29 ln. 1-16)

Based on the foregoing information, the Appellant would urge and plead with the Court to examine State's Exhibit No. 62, the hammer herein question. Observations of the top of the hammer will clearly indicated the cracks and crevices on that hammer in which blood would necessarily be trapped if used in the fashion as alleged by the State. Further, view State's Exhibits 64 through 83, which are the medical examiner's photographs of the injuries to Sandra Allen. Finally, in conjunction with those exhibits, view States' Exhibits 12 through 37, which are photographs from the crime scene itself. Only one (1) conclusion can logically be drawn by any person when viewing those exhibits together. If the ball peen hammer was the murder weapon as alleged by the State blood must have been trapped in the cracks and crevices in the top of the hammer, in the handle of the hammer, and on the head of the hammer itself. It was not refuted by the State's case that this hammer was not washed clean or evidence of blood seeped into the cracks on the top and under the head of the hammer or onto the shaft itself should have been present. When taken together with the non-committal opinion of the State's forensic pathologist and the adamant opinion of Appellant's forensic pathologist, the Appellant not only cast a doubt as to the use of the hammer as a murder weapon, but, Appellant proved beyond doubt that the hammer was not the murder weapon as alleged. This leaves the following unanswerable questions concerning Appellant's guilt in this case:

Why is Appellant's testimony concerning the finding of his wife's body unbelievable when his testimony concerning the hammer not being the murder weapon and hidden anyway is true?
Why were police unable to find the murder weapon?
How could Appellant hide the real murder weapon successfully, a non-murder weapon unsuccessfully, and yet fail to ever take the time to change and hide clothes to prevent suspicion from the blood stained appearance they presented?

This information taken with all the other evidence presented in the case including the fact that even in his own home, not one (1) hair from the Appellant was found on the body of Sandra Allen (Tr. 7/24,29,30/91 Pg. 39 ln. 19-23), that there was not one (1) shred of evidence presented as to prior physical altercations between Mr. and Mrs. Allen, and, that the Appellant had never even had so much as a traffic ticket all point to one (1) thing, and that is that of all possible persons, the Appellant was the least likely persons to have killed Sandra Allen. For this reason, the jury had totally insufficient evidence presented to it by the State of Oklahoma to sustain their verdict of guilty to Murder in the First Degree.

GARRISON, BROWN, CARLSON & BUCHANAN

Attorneys for Appellant

By: Kevin D. Buchanan
By: Alan R. Carlson

LH 2000