IN THE COURT OF CRIMINAL APPEALS
STATE OF OKLAHOMA

STEPHEN LEE ALLEN,
Appellant,

vs.

STATE OF OKLAHOMA,
Appellee.

Case No. F-92-120

PETITION FOR REHEARING

COMES NOW the Defendant, STEPHEN LEE ALLEN, and pursuant to Rule 3.14 of the Rules of the Oklahoma Court of Criminal Appeals petitions this Court for a rehearing following this Court's written opinion in the above entitled cause and in support of said Petition alleges and states the following:

1. In the Court's decision, at page 8, the Court acknowledges the Appellant's assignment of error concerning the Trial Court's ruling to allow the State's rebuttal witness, ALAN EASTMAN, to testify. The Court further notes that Appellant raises the issue of lack of notice provided by the State to the Appellant of their intention to call such a witness or provide the witness' statement purportedly made to Appellant prior to trial. But, this Court fails to address the issues of the State's failure to provide the name of the witness, ALAN EASTMAN, to Defendant and their failure, under Discovery Orders, to provide the statement purportedly made by Appellant to Witness EASTMAN. First, as to the Trial Court's Discovery Orders, pursuant to this Court's earlier decision in the above entitled cause, Allen v. District Court, 803 P.2d 1164 (Okl. Cr. 1990) the Appellant filed a Motion for Discovery (O.R. 486) The Trial Court granted this Motion requiring "any written or recorded statements and the substance of any oral statements made by the accused" to be provided by June 7th, 1991. (O.R. 811) The statement purportedly made by Appellant and proffered by the State through Witness ALAN EASTMAN was not provided to Appellant as admitted by counsel for the State. (Tr. 8/7, 8, 10/91 Pg. 7 ln. 11-14) This on its face clearly makes the statement inadmissible as it is contrary to and in violation of the Trial Court's own Discovery Order. (See State v. Kehner, 776 S.W.2d 396 (Mo. App. 1989), Tolbert v. State, 441 So.2d 1374 (Miss. 1983), and, Walraven v. State, 297 S.E.2d 278 (Ga. 1982)) Past decisions of this Court have circumvented this issue by allowing the State to not provide statements of an accused through discovery when such statements are made to non-law enforcement witnesses in non-interrogation circumstances. (See Hollan v. State, 676 P.2d 861 (Okl. Cr. 1984), and, Jones v. State, 660 P.2d 634 (Okl. Cr. 1983) But in all such cases this Court's justification for allowing the State to not provide accused such statements was that the witnesses had been endorsed by the State, and therefore, Defendant was placed on notice of the State's intention to call such a witness and responsibility to determine the content of that witness' testimony. In the instant case, the State's witness list did not contain the name of ALAN EASTMAN. (O.R. 1151 and 1152) Therefore, this Court's opinion in the above referenced case must address this critical issue as properly raised or, said opinion will clearly allow the Trial Court to condone violations of its own Discovery Orders and, to condone conduct in violation of this Court's own "Discovery Code" and fly in the face of prior Court decisions concerning the Defendant's right to obtain his own statements prior to trial. The law clearly mandates that this issue alone, should reverse this case and grant the Appellant a new trial. No case imaginable would allow the State to not reveal the statements of the Defendant under the sham that they are only going to be used in rebuttal. Clearly, unless the Court reverses the case, such action is what the Court is rewarding.

2. This Court's opinion in the above referenced case addresses only a portion of the Appellant's Proposition number 9A concerning the reasonable doubt raised by the evidence surrounding the contact lenses found on the body of the Deceased at the time of her autopsy. While this Court's opinion finds that the jury had adequate information to discard Appellant's experts' testimony concerning the power of the contact lens found at the time of autopsy, this Court does not deal with the issue raised by the number of contact lenses found. As pointed out on pages 64 through 66 of Appellant's Brief in Chief, the testimony of hospital and ambulance personnel clearly established that the contact lenses of SANDRA ALLEN were removed from her person in the hospital emergency room. (Tr. 8/2, 6, 7/91 Pg. 259 ln. 3-6 and, ln. 18-21) Further, that the ambulance driver to whom the contact lenses were handed testified that they were removed from the emergency room and given to other personnel for storage. (Tr. 8/2, 6, 7/91 Pg. 265 in. 20-25 and, Pg. 267 in. 19-21 and, Pg. 268 in. 4-8) Therefore, totally aside from the dispute over the power of the contact lens found on the Deceased's body at the time of autopsy, the issue of the existence of at least three contact lenses was not addressed. Even viewed in the best light for the State, the evidence concerning the contact lenses conclusively shows that one whole contact and pieces of another (See Tr. 7/30, 8/1/90, Pg. 182 in. 17-25 and Pg. 183 in. 1-8) was removed from the body of the Deceased at autopsy. Further, that the nurse in the emergency room obviously attempts at trial to allow for the possibility of dropping one of the contact lenses. But, this does not provide any explanation for the ambulance driver's adamant assertion that he got a contact lens or lenses out of the emergency room area. Again, in the light most favorable to the State, the evidence shows that (1) A contact lens was removed by the ambulance driver from the emergency room (2) that a whole contact was removed from the Deceased's body at the time of autopsy, (3) that pieces of a contact lens were removed from the body of Deceased at the time of autopsy. No other conclusion can be drawn but that at least three contact lenses existed. The State's explanation for this circumstance, as indicated at page 66 of Appellant's Brief, is that the nurse and ambulance driver were simply careless enough that they only thought they got the contact lenses off the body of the Deceased. To which there is absolutely no evidence, but just speculation by the State. This evidentiary issue was one of critical importance to proving the existence of a third person aside from Appellant and the Deceased. This Court's opinion in the above entitled case allows the jury the ability to disregard the testimony of experts whose qualifications far exceed that of the State's witness. That the jury did so is clear evidence of their predisposition to convict the Appellant. But, this Court can not allow the jury in this case to overlook plain, simple, and logical conclusions dealing with physical evidence when the record is void of any reasonable conclusion about that evidence necessary for a conviction. To accept any other conclusion that evidence of three contact lenses have been produced, is to accept the jury's conclusion that a year after the murder and well into the trial of the Appellant, a nurse and ambulance driver come forward and perjure themselves concerning removal of contact lenses from the body of the Deceased, and that two experts in the field of contact lenses, persons with no regular practice of testifying in cases of any kind for hire, also perjure themselves. Again, the only explanation for the jury's disregard of the reasonable doubt raised by the incorrect power of the lens coupled with evidence of three contact lenses is a clear indication of their predisposition to convict this Appellant despite any information that may have been introduced at trial. Clearly, such evidence screams for a change of venue, to an impartial forum for a trial, before people who are not so predisposed to convict, that they will not completely ignore uncontroverted evidence.

3. The Court's opinion deals with each of the five individual points which Appellant raises to prove that insufficient evidence existed to support a guilty verdict. In each of those propositions, the Court's opinion has taken each proposition, individually, and found information contained in the record that contradicts the evidence presented by the Defendant to prove to the jury that he was not present at the time the Deceased, SANDRA ALLEN, was murdered. But this Court has failed to view all five points raised by Defendant as a whole, and in doing so, failed to recognize the tremendous propensity to convict the Appellant that existed in the minds of the jurors enabling them to overcome all the clear and logical information contradictory to his guilt. As Appellant has pointed out in paragraph 2 above, the jury has overlooked irrefutable evidence of three contact lenses or has presumed ineptitude on the part of emergency room personnel and ignored testimony of highly qualified professionals to determine that the contact lens belonged to SANDRA ALLEN. The Court's opinion finds the information concerning the Appellant's affair a "sound basis for his motive to murder his wife" even though the State of Oklahoma did not argue that point in closing arguments. (Tr. 8/6/9/12/91 Pd. 143 and Pg. 144 ln. 2-11) Despite the fact that common sense and experience tells us that marriages typically experience sexual dissatisfaction on the part of one spouse or the other and that affairs occur without murders following, and that divorce is the normal route taken by society's disillusioned spouses, the jury is granted the ability to determine motive exists on the information presented in this case about the affair. Absent that information no other motive appears in the record. Thirdly, the jury was again allowed by the Court's opinion to ignore a highly unusual phone call received by the Deceased within an hour of her death. Fourth, the jury is again enabled by this Court's opinion to ignore qualifications, experience, and reputations in order to disregard the testimony of Appellant's expert witnesses concerning blood splatter. Aside from all issues of reputation, the jury ignored the fact that no one can explain how the Appellant did not have portions of tissue from the Deceased on any of his clothing or person when the walls and floor of the crime scene contained such tissue pieces in all directions from the point of the attack. And, finally, this Court's opinion allows the jury to ignore the fact that the hammer was not the murder weapon. The Court clearly searched the record and found the State Medical Examiner's position that it could not be excluded as the murder weapon and the Defendant's expert Forensic Pathologist's testimony that the manner in which the hammer struck the Deceased could affect the pattern of injury exhibited on her. But this Court, as apparently the jury did, ignored the fact that after this tremendously bloody assault upon the Deceased, that the hammer, proffered by the State as the murder weapon, had no blood on the head of the hammer or the cracks and crevices around the head of the hammer. Further, there was no indication that the hammer had been washed clean, which, according to the testimony of witnesses, would have caused seepage of blood into all the areas around the head of the hammer. It must be more than abundantly clear to this Court when considering the facts presented by the Defendant, both physical information, not purely opinion, and logical conclusions drawn from the information presented, that the jury was prepared despite any evidence to convict the Appellant of the crime with which he was charged. To take all five of the foregoing circumstances presented by Defendant and allow the jury to disregard them is to go beyond a simple determination of whether or not evidence exists that supports the Jury's verdict. It requires this Court to allow facts to be ignored and fiction to be the basis for the conviction of Appellant for the murder of his wife. Only twelve minds predisposed to convict the Appellant could have possibly overlooked all the information detailed above and this Court's search of the record for some, if any, support for the conviction is not a true Appellate review of the facts and circumstances presented to the jury in this case. If this Court does not also look at the believability of the information upon which the conviction rests. then any jury can convict any person of any crime so long as the record contains someone's statement that a Defendant is guilty. In this case, this Court was presented with, and acknowledged, a scenario of great public interest and predisposition to believe the Defendant's guilt. This Court has accepted at face value each jurors expression that they were able to set aside all preconceived opinions and follow the Court's instructions in this case. But also, as pointed out on page 17 of Appellant's Brief in Chief, at least three potential jurors lied under their oath and were excused for that reason. The Appellant therefore urges this Court, in light of the record as a whole, and not as an exercise in finding support in the record for a jury's verdict, that the opinion on Appeal address the jury's ability to disregard fact and logic while at the same time acting as a fair and impartial panel in judgment of Appellant.

IN FURTHER SUPPORT OF APPELLANT'S PETITION FOR REHEARING, THE APPELLANT WOULD SHOW TO THE COURT AS FOLLOWS:

1. That the instant Petition for Rehearing comes before this Court, timely filed, in response to an Opinion rendered by the Court of Criminal Appeals in and for the State of Oklahoma, heretofore handed down in this matter.

2. That a timely Appeal of this cause was perfected following the Appellant's conviction in Case No. CRF-90-239, of the crime of Murder in the First Degree, said conviction arising out of the District Court in and for Washington County, State of Oklahoma, the Honorable John G. Lanning presiding. Judgment and sentence was subsequently entered in the case on the 21st day of August, 1991, ordering the Appellant to be confined to the State Department of Corrections for life, without the possibility of parole

3. That on the 28th day of October, 1993, this Court's decision and opinion in the instant matter was filed.

4. That in accordance with the Rules of the Oklahoma Court of Criminal Appeals, Rule 3.14, the Appellant has filed his Petition within twenty days of the date of the above referenced opinion seeking rehearing of the above styled and captioned cause.

WHEREFORE, premises considered1 the Appellant prays that this Court grant his Petition for Rehearing on the merits of the issues hereinbefore cited, and for such further and proper relief as the Court deems just and equitable.

GARRISON, BROWN, CARLSON & BUCHANAN

Attorneys for Appellant

By:
Kevin D. Buchanan

By:
Alan R. Carlson

lh 2000