IN THE COURT OF CRIMINAL APPEALS
STATE OF OKLAHOMA
STEPHEN LEE ALLEN,
Appellant
Case No. F-92-120
vs.
STATE OF OKLAHOMA,
Appellee.
APPELLANT’S REPLY BRIEF
Respectfully submitted by:
GARRISON, BROWN, CARLSON & BUCHANAN
Attorneys for Appellant
TABLE OF CONTENTS AND AUTHORITIES
Appellant properly preserved his objection to the Trial Court's exclusion of the audio portion of the crime scene video.
The State is unable to respond to Appellant's claim that the conviction is not supported by evidence by contending that only a conclusion must be proven and not facts supporting it.
PROPOSITION NO. 1
THE TRIAL COURT IMPARTED HIS PREJUDICE AGAINST HE DEFENDANT'S CASE BY CHOICE OF WITNESSES HE QUESTIONED AND TOPICS HE ADDRESSED.
The State in its Responsive Brief attempts to whitewash the questioning of witnesses called by the defense and the Defendant himself as nothing more than the even-handed search for the truth. As was stated in the case of Richmond v. State, 456 P.2d 897 (Okl. Cr. 1969):
"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." [Emphasis added] Id at 900.
This is a clear recognition on the part of the Court that mere words alone are not necessary to convey one's opinion. The Court's conduct as a whole consists of questioning only witnesses called by the Defendant during the Defendant's case (the Defendant himself, State Medical Examiner, and, Defendant's Forensic Expert) and addressing with those witnesses only two topics. First was the hammer, the one piece of evidence quite possibly the most damaging to Defendant but the most difficult for the State to connect up as a murder weapon. Second, was the contact lens the one indisputable piece of evidence of the presence of someone other than the Defendant at the crime scene which the State was never able to explain away. These were the only two issues which the Court incorrectly deemed necessary to "shed light on" and call the jury’s attention to, in the most error laden acute fashion, by virtue of the Court himself becoming involved as a questioner of witnesses. We as attorneys attempt to influence jurors by directing their attention to particular items of evidence or facts through the questions we ask witnesses. How the Trial Court could have believed that his questions would not have had the same effect, two-fold, is inconceivable, and beyond the bounds of propriety.
PROPOSITION NO. 2
THE APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE STATE'S FAILURE TO FOLLOW AND THE COURT'S FAILURE TO ENFORCE TESTING CUTOFF DATES.
The State contends that no relevant authority has been cited by Appellant for his proposition that reversible error occurred in the Court's failure to enforce its own testing cutoff date. It must also be noted that the State has cited no authority supporting the Trial Court's incredible acquiescence in the State's flagrant violation of the testing cutoff date. Appellant's submits that it is seldom the circumstance that a Trial Court fixes a testing cutoff date for evidence in a capital case and when presented with newly discovered evidence resulting from tests performed after the cutoff date then acquiescence in the violation of the Court's own Order. Appellant cites to the Court Article II Section VII of the Oklahoma Constitution wherein it is provided that: "No person shall be deprived of life, liberty, or property, without due process of law." The Court's and State's action in this case have in fact violated the due process rights of the Appellant. When a Defendant seeks out guidance and protection from a Trial Court in the preparation of his defense, the Court is obliged to provide such guidance and protection as the law allows. Deadlines established for the State to cease the production, creation, or discovery of evidence prior to trial is one form of protection which the Appellant had a right to seek and the Court was authorized to grant. The information provided within the time limitation is then assessed by a Defendant and limited funds are divided to meet the evidence against him. Once a Defendant's limited resources are gone, he is powerless in terms of resources to continue to meet the State's unlimited ability to continue to produce or create evidence against him preceding trial. The Defendant does not have a State crime lab to call upon. Therefore, when a Defendant has sought and received the protection of the Court in trial preparation matters, and the State willfully violates those Court Orders, and the Court refuses to enforce them, the Defendant's due process under the law has been violated.
As final insult to injury, the State, in its Brief, suggests that the ten (10) day period set by the Court in Allen v. District Court, 803 P.2d 1164 (Okl. Cr. 1990) is ample time in which to prepare to defend oneself for their life. How the State can defend its actions in delaying testing of technical evidence for a period of eleven (11) months and suggest that ten (10) or even thirty (30) days is sufficient for a Defendant to analyze and prepare to meet such evidence, even in rare cases where resources allow, is nothing more than ridiculing the Criminal Justice System, and a fundamental sense of fairness.
PROPOSITION NO. 3
THE EVIDENCE FAILS TO SUPPORT THE STATE'S CLAIM OF A LACK OF KNOWLEDGE OF APPELLANT'S PROPOSED EXPERT TESTIMONY TO JUSTIFY REBUTTAL.
The State addresses the rebuttal evidence of witness Tom Bevel. First, the State claims that the testimony of Witness Bevel could not have been introduced in its Case in Chief as a result of the State's lack of knowledge of the testing methods of Defendant's blood spatter expert witnesses. This is a fabrication. First, it is clear that the State was aware of the testing methods of the Appellant's expert witnesses prior to trial. (See Tr. 8/7,8,10/91 Pg. 62 ln. 4-12) All of the Defendant's experts testing methods and documentation of those was provided under Allen thereby allowing the State to begin preparing their "rebuttal" expert witnesses in advance of trial. The Court's allowance of rebuttal testimony from Witness Bevel was simply an improper stamp of approval on the State's trial method of slipping in the last punch after the bell has rung, not addressing new evidence arising from the Appellant's case.
PROPOSITION NO. 4
THE STATE FAILS TO ACKNOWLEDGE ITS FLAGRANT FAILURE TO PROVIDE DEFENDANT NOTICE OF HIS OWN ALLEGED STATEMENTS
The State in its Responsive Brief barely touches on one of the most flagrant violations by the State of the discovery process existing both before and as a result of the Allen case. Witness Allen Eastman was presented as rebuttal testimony when in fact his testimony was nearly identical to that of witness Robert Herring. But most importantly, the State openly admitted that it had not provided the statement to defense counsel as ordered by the Court of the Appellant himself to witness Eastman as they only intended to call Mr. Eastman as a rebuttal witness. Even the Trial Court recognized the error of this logic, yet, allowed the testimony anyway. Appellant's statements are born out by the following:
"THE COURT: Well, that's my question was had you supplied them a copy of the statement of Mr. Eastman?
MR. CORGAN: No, I have not.
MR. BUCHANAN: And, obviously, that which we knew Mr. Eastman might say is substantially different than what he first said.
MR. CORGAN: As I understood, Your Honor' s Discovery Order did not go to rebuttal. That was specifically what the Court said.
MR. CARLSON: Covers all Defendant's statements.
THE COURT: Well it goes to all the Defendant's statements. (Tr. 8/7,8,10/91 Pg. 7 ln. 11-24) [Emphasis added]
But, again, the Court allowed the testimony to come in again condoning the State's misuse and abuse of rebuttal testimony in order to continue their "strike the last blow" trial tactic. The Court allowing the State to continue this tactic and to allow the State to violate in yet another instance, its Orders, is reversible error.
PROPOSITION NO. 5
STATUTES CONSTITUTE SUPPORTING AUTHORITY FOR CLAIMED ERROR.
The State attempts to convince this Court that in relation to the improper questioning of Dr. Michael Baden concerning his qualifications that Appellant has cited no authority. But, Appellant would direct this Court's attention to his citation of three sections of the Oklahoma Evidence Code defining and dealing with relevant evidence. If Statutes of the State of Oklahoma are not legal authority and violation of those statutes at trial is not reversible error, then Appellant is at a loss for the purpose of said statutes.
PROPOSITION NO. 6
APPELLANT PROPERLY PRESERVED HIS OBJECTION TO THE TRIAL COURT'S EXCLUSION OF THE AUDIO PORTION OF THE CRIME SCENE VIDEO.
The State claims that the Trial Court's error in excluding the audio portion of the crime scene video (Defendant's Exhibit 18) was not properly preserved for review as a result of the Appellant's failure to follow the guidelines set forth in, among others, Teegarden v. State, 563 P.2d 660 (Okl. Cr. 1977). This argument misconstrues the facts surrounding the Court's denial of Appellant's introduction of audio portions of the tape. A review of the transcript indicates that prior to the witness who sponsored the tape, Blair Gluba, an in-chambers discussion concerning the admissibility of the tape, both audio and video portions, was held. The Court, having reviewed both aspects of the tape allowed the video portion to be played but denied the audio portions admission into evidence. (Tr. 7/24,29,30/91 Pg. 259 ln. 21-25 through Pg. 264 ln. 1-18) At the end of that discussion, counsel for Appellant requested that a transcript of the audio portion of the tape be admitted as an offer of proof which was allowed. Continued discussion over the tape itself took place in-chambers and at the end of that discussion the witness through whom the tape was to be introduced took the witness stand. (Tr. 7/24,29,30/91 Pg. 270 ln. 3-17) Clearly, the argument to the Court concerning the admissibility of the audio portion of the crime scene video was as contemporaneous with the witnesses testimony at trial as was possible. The Court, at trial and contemporaneously with the Appellant's attempt to introduce such evidence made his ruling concerning said evidence and how the Appellant's witness, and others should deal with its exclusion. The State's claim that this proposition is not preserved for review is seriously misguided.
PROPOSITION NO. 7
THE STATE IS UNABLE TO RESPOND TO APPELLANT'S CLAIM THAT THE CONVICTION IS NOT SUPPORTED BY EVIDENCE BY CONTENDING THAT ONLY A CONCLUSION MUST BE PROVEN AND NOT FACTS SUPPORTING IT.
The State again claims that an issue raised by Appellant is not supported by citation of authority and therefore waived. This argument is directed at Appellant's contention that the evidence presented against him does not support the conviction. It is fundamental that the State must support any conviction by proof of the allegations against the Appellant at trial. (See Randolph V. State, 223 P. 723 (Okl. Cr. 1924) It is also obvious that this allegation of error relates solely to the facts and circumstances of this case and citations of authority, other than the most general of legal propositions, as set forth above, are inapplicable.
As to the State's response to the evidentiary items raised by Appellant, their arguments fall as short as did the State's proof at trial. Appellant, in his initial Brief, documented in the trial proceedings his proof that the contact lenses retrieved by the medical examiner were not that of the Deceased. The State claims that this is merely a choice made by the jury as to which witness to believe concerning the prescription of the contact lens. But, other proof concerning the contact lens during the course of the case proves beyond a reasonable doubt that the contact lens provides evidence of a third party at the scene of the murder of Deceased, and not the Appellant.
The following is the Appellant's proof of the existence of at least three contact lenses taken from the Deceased.
Contact Lens Number 1: Ed Conley, the ambulance driver, testified that when the Deceased was in the emergency room that one or two contact lenses were handed to him and he removed those from the emergency room and gave them to someone at the nurse's station. Mr. Conley qualified his testimony by indicating that he was not certain whether one or two contact lenses were given to him, but without doubt, and in response to both counsel for the Appellant and the State, he adamantly contended that at least one contact lens was given to someone at the nurse's station. (Tr. 8/2,6,7/91 Pg. 266 ln. 1-12; Pg. 267 ln. 1-21) This contact lens was never packaged for evidence, and never was retrieved from the nursing station at the hospital.
Contact Lens Number 2 and 3: Dan Dooley, investigator for the Chief Medical Examiner's office, testified that he was present when the Medical Examiner removed a contact lens from the Deceased and gave it to him for packaging. Further, that no other contact lenses came along with the body of the Deceased and no other contact lenses aside from the one removed by the Medical Examiner were noted on his evidence sheet. (See Defendant's Exhibit 27 and Tr. 7/30 8/1/91 Pg. 171 through 173) Next, Dr. Alvin E. Reynolds testified that he opened the package provided to him and marked as Defendant's Exhibit 28 and found one completely intact contact lens and pieces of another. (Tr. 7/30 8/1/91 Pg. 183 ln. 1-4) It was the intact contact lens which was the subject of the prescription strength testimony from witnesses Dr. Reynolds, Larry Burke and Dr. Roger Birch.
The State can not explain the existence of three contact lenses taken from the body of the Deceased as established by the testimony of the ambulance driver, Ed Conley, and the evidence removed by the State Medical Examiner. Even aside from the prescription strength and any attempt by the State to explain the variance, the existence of three contact lenses has not been explained but has irrefutably been proven.
Finally, the State, in discussion of the evidence concerning the hammer as the murder weapon. The State of Oklahoma totally fails to address the State's inability to prove the hammer as the murder weapon. No part of the record is noted by the State as contradictory to the total absence of blood in the top of the hammer, under the head of the hammer, or any information explaining why no expert for the State of Oklahoma could point to a single injury linking the hammer to the Deceased. The State instead simply states that it was not incumbent upon the State to prove beyond a reasonable doubt that the hammer was used as a murder weapon. The single most damaging item of evidence against the Defendant, if truly guilty of the crime, is the hiding of the hammer in the attic of his home. But, the single most convincing item of evidence supporting the Defendant's version of the events of the night of his wife's death as true is the fact that the hammer is not the murder weapon, but hidden anyway by the Appellant. If the State of Oklahoma can not prove that the hammer is the murder weapon, then reasonable doubt is cast on everyone assumption made by the jury in determining that the circumstantial evidence supported a conviction of Murder in the First Degree. Without the proof of the facts, the State can not prove that the Appellant committed murder. The State's assertion that only the ultimate conclusion must be proven without support in the facts is in and of itself an indication of reasonable doubt. For this and the foregoing reasons, and the other facts ignored by both the State and the jury, the Appellant's conviction for Murder in the First Degree is clearly not supported by competent evidence.
Respectfully submitted,
GARRISON, BROWN, CARLSON & BUCHANAN
Kevin D. Buchanan,
Alan R. Carlson,
LH
2000