BRIEF OF APPELLEE

THE TRIAL COURT DID NOT ERR IN REFUSING THE DEFENDANT'S REQUEST FOR EXPERTS' WORKING NOTES; THIS COURT HAS NEVER REQUIRED THEM TO BE TURNED OVER, AND DOES NOT SO REQUIRE NOW.

PROPOSITION V

NO ERROR OCCURRED IN REFUSING TO REMOVE JURORS, AS THEY STATED THEY COULD BE FAIR AND IMPARTIAL IN DECIDING GUILT AND PUNISHMENT.: A. Prospective Juror George
B. Prospective Juror Wilson
C. Prospective Juror Vanaken

PROPOSITION VI

EVIDENCE OF OTHER CRIMES WAS PROPERLY ADMITTED TO SHOW MOTIVE, AND TO REBUT EVIDENCE GIVEN DURING THE DEFENDANT'S CASE-IN-CHIEF.: A. The Debbe Aubrey Affair
B. Tom Bevel and Alan Eastman

PROPOSITION VII

THE TRIAL COURT PROPERLY ALLOWED QUESTIONING OF THE DEFENDANT'S FORENSIC PATHOLOGIST, AS IT TENDED TO SHOW THE WITNESS' BIAS

PROPOSITION VIII

THE AUDIO PORTION OF THE VIDEO TAPE WAS PROPERLY EXCLUDED, AS IT WAS CUMULATIVE AND CONFUSING AND THE EVIDENCE SOUGHT THROUGH IT WAS AVAILABLE THROUGH OTHER MEANS.

PROPOSITION IX

EVIDENCE, TAKEN IN THE LIGHT MOST FAVORABLE TO THE STATE, IS SUFFICIENT TO ENABLE ANY RATIONAL TRIER OF FACT THAT THE DEFENDANT IS GUILTY OF MURDER BEYOND A REASONABLE DOUBT.

Conclusion

STATEMENT OF THE CASE

Stephen Lee Allen, hereinafter referred to as the defendant, was charged by Information in Washington County cause No. CRF-89-112 with Murder in the First Degree, in violation of 21 O.S.Supp.1982, § 701.7 (O.R. 1). The State filed a bill of particulars seeking the death penalty, alleging the murder was especially heinous, atrocious or cruel (O.R. 641). A trial was held before the Hon. John G. Lanning, District Judge, at the conclusion of which the jury found the defendant guilty of first degree murder (O.R. 1215) and recommended he be sentenced to life in prison without the possibility of parole (O.R. 1266). Judgment and sentence was imposed in accordance with the jury's recommendation (O.R. 1279). It is from this judgment and sentence the defendant appeals.

STATEMENT OF FACTS

The prosecution's case.

Authorities first became aware that Sandra Allen's skull had been battered in at approximately 10 p.m. on June 11, 1990, when Bartlesville Police Department dispatcher Terri Lippert received a 911 call from the defendant, who told here his wife had been injured and he had seen a man run across his back yard. The defendant sounded under control, and she did not have to calm him. She immediately dispatched police to the area (Transcript of testimony from July 22 and 24, 1991, transcribed by Hoyt [hereinafter 7/22 Tr.] at 47-60).

Officer Darrell Grayson was the first policeman to arrive on the scene. As he got out of his car, the defendant ran towards him, saying he did not want his child in the car to see the victim. The defendant also told the officer he saw a man running across his yard as he pulled into the driveway, but he could not describe him in any fashion. The officer found no pulse on the victim, who was lying in a pool of blood in the dining area. The defendant was sweating profusely and was covered in blood. Officer Grayson heard the defendant tell Lieutenant Gus Davis he saw the suspect run out a door between the den and the patio, although he did not put that in his report (7/22 Tr. 91-101, 113).

As Lt. Davis was checking the victim's pulse, the defendant, who had been crouched down next to the victim, left bloody tracks as he stepped across the floor. There were several other tracks, but none were different, and all matched those being made by the defendant. Lt. Davis noticed the patio door was opened, but the storm door on the outside was locked. The defendant was covered with blood, and was soaking wet (7/22 Tr. 123-28).

Tanya Crossman, the unit secretary at Jane Phillips Hospital emergency room, met the defendant at the emergency room door where the victim had been taken. He acknowledged the victim was his wife, then asked Ms. Crossman if the victim was talking. Ms. Crossman remembered the question, because it was the first time someone had asked whether someone was talking instead of inquiring whether the person was conscious. The defendant answered routine questions. He appeared to be crying, yet shed no tears (Transcript in volume containing proceeding form July 17, 19 and 23, 1991 by Whatley [hereinafter 7/17 Tr.] at 220-29).

The defendant first told Lt. Davis the suspect went through the patio door. He later said he pulled into the driveway and saw someone run from the corner of his house to the north, although he could give no description of the man. The defendant displayed no emotions. Lt. Davis examined the patio and found nothing. He found a spot in the northeast corner of the yard where it appeared someone had gone over a fence, but he could not examine the other side because the adjoining yard contained a vicious dog. The dog's owners penned up the dog, and the officer found nothing unusual in the area, except some leaves broken off a plant in the defendant's yard. This puzzled him, as the leaves should have been merely flattened out where they were; these appeared to have been tossed over the fence. He searched the area, including tall grass that appeared to have been undisturbed; there was no evidence of recent passing. He rechecked the patio storm door fro the outside and could not open it ( 7/22 Tr. 127, 129-39).

Lt. Davis noticed the television screen in the family room had been broken, and there was a small dot of what appeared to be blood on a portion of the screen. Although it was sometimes possible to jerk open locked storm doors, some are more difficult to open than others. The grass at the corner of the yard where the broken plant leaves were was worn, consistent with children going back and forth. (7/22 Tr. 147-64).

Other police officers responded to the call, searching the area around the defendant's house and neighborhood. They found nothing (7/17 Tr. 237-60). Officers also checked the victim's purse, which was sitting on a counter. Inside it, they found several credit cards and some money. (7/17 Tr. 267-68). Police also searched the dirt area near the patio door; the dirt was damp, but no footprints were found (7/17 Tr. 270-72).

Authorities discovered in the attic a small ball-peen hammer and some paper towels, hidden under some other items (7/17 Tr. 275-76). The defendant told authorities he picked up the hammer and banged the counter top in frustration after seeing his wife lying there; then panicked, believing authorities would find his actions suspicious. He therefore hid the hammer in the attic before he called police. The hammer had traced of blood on the handle (7/22 Tr. 276).

Authorities also examined the glass that had been broken out of one of the patio door panes. It appeared to them the glass had been broken while the door was in the open position. They based this on the position of the broken glass fragments (7/17 Tr. 278, 281; 7/22 Tr. 226, 242). Authorities also thought it strange that the television and a nearby mirror were broken; typically, burglars take items, not vandalize them (7/22 Tr. 226, 238).

Blood was present on the walls, furniture and even the ceiling (7/22 Tr. 263). This aroused suspicions of Oklahoma State Bureau of Investigation Agent James Otte, because typically a burglar will use just enough force to fend off someone who surprises him; a burglar's goal is to escape the house after being surprised, not to inflict injury. It took pressure to move the patio door, as the carpet prevented it from swinging freely. (7/22 Tr. 264-66).

Agent Otte questioned the defendant, who related his activities that day. He bought his wife some invitations at lunch, and returned home shortly after 5 p.m. to find his wife preparing to leave for her evening job at Dillard's. He finished fixing the meal for himself and [son]; mowed part of his lawn, the cleaned himself and [son]. He then drove to Dillard's to see his wife; went to another portion of the mall; then returned to Dillard's, where he made a purchase and talked to his wife about a strange telephone call she had received that evening at work. He mentioned he would go by the Sonic and get something to drink. His wife asked him to get her something as well. He then left, stopped by the church and picked up some papers; stopped at Sonic to get the drinks; then returned to Dillard's. His wife had already left the store, so he drove home (7/22 Tr. 274-76).

As he pulled into his driveway, his lights panned across a portion of his house, and he saw a man running. He left [son] in the car, entered the house and found his wife on the floor. He held her for a second, then stepped into the other room, where he noticed the broken television and mirror and books on the floor. He wiped his hands, saw the hammer on the counter top and hit the counter top in frustration. He then realized he had placed blood on the hammer; so he took the hammer to the attic, along with some paper towels he had used to wipe off the hammer. He then called 911. He recalled seeing the clock at the church, and it was a minute or two after 9 p.m. when he was there. Dillard's closed at 9 p.m., and his wife usually left between 9:15 and 9:20. He arrived home at approximately 9:25 (7/22 Tr. 276-78).

The victim and a co-worker clocked out at 9:15. The co-worker drove along the same route as the victim part of the way home, and saw the victim turn on the road that went to her house. The co-worker looked at the clock when she arrived home and changed for bed; the clock read 9:28 p.m. (7/17 Tr. 66-67).

The defendant was seen by several neighbors that evening. Irving Coffman left for the grocery store at 9 p.m. and saw the defendant at his car in the driveway. Mr. Coffman's wife later took [son] when the defendant went the hospital (7/17 Tr. 84-89). His son Allen Coffman accompanied a friend out of the Coffman house to the driveway at approximately 9:30 p.m.. Allen then went inside the garage to search for some needed items. The garage door was open. During this time, Allen heard no unusual sounds while he was in the garage, other than some of the dogs who started barking when the emergency vehicles arrived (7/17 Tr. 101-03).

Neighbor Craig Hacker recalled telling officers he was working in his yard and saw the defendant driving by between 9 and 9:15 p.m. (7/17 Tr. 111-14). Another neighbor, Barbara Larsen, recalled glancing at her watch before leaving on an errand at 8:30 p.m.. When they returned to the house and her husband pulled her vehicle into the garage, the digital clock there read 9:38. She noticed no lights at the Allen residence at that time, although she saw the victim's car and was fairly certain the defendant's car was also in the driveway. She thought it was strange to see the cars and no lights on. After hearing of the incident, her husband and a neighbor searched the vicinity for intruders. Nothing appeared disturbed (7/17 Tr. 124-29). Her husband bought gasoline on the way home, and the card showed a time of 9:36 p.m. (7/17 Tr. 135).

Daniel Eastman returned to his house at approximately 9:30 after visiting at the Coffmans'. He saw nothing unusual at the Allen residence. His back yard partially abuts the Allen yard, separated by a fence over which neighborhood children habitually climbed. He remembered his dog became upset when officers were in the back yard (7/17 Tr. 149-56).

Kay and Robert Herring lived across the street from the Allens, and were outside for a portion of the evening. Kay went inside at approximately 9 p.m. to answer the telephone, and did not go back out until after 10 p.m.. While outside, she noticed [son] playing in the driveway at approximately 7 p.m.. The defendant and [son] drove away between 7:15 and 7:30. She saw the defendant return at approximately 8:30, go inside, then leave again shortly afterwards. She later gave the defendant a ride to the hospital. He was hot and sweaty and had blood on him. He seemed to be distressed and crying, but she saw no tears (7/17 Tr. 164-77). Robert Herring saw the defendant mow his lawn at approximately 6 p.m.. The defendant left his house perhaps as many as three times. On one occasion after Mrs. Herring went inside, the defendant drove by the house without stopping. Mr. Herring waved to the defendant, but the defendant did not acknowledge the wave, turning instead and looking the other way (7/17 Tr. 191-95).

Mr. Herring later went next door to pray with the defendant and asked him what had happened. The defendant did not answer. Mr. Herring chatted briefly with the defendant immediately after the victim's funeral; the defendant told Mr. Herring he rally loved Sandra and did not know whether he had committed the acts or not, and did not know if he could prove he did not. The defendant showed no emotion at the funeral (7/17 Tr. 200-03, 210).

OSBI criminalist Lynette Lee examined the hammer and several other items. Blood on the hammer handle had antigen activity that matched the victim's blood. That blood type also was found on paper towels hidden with the hammer. In addition, sixteen head hairs were found on the towels; they were microscopically consistent with sample hairs taken from the victim (Transcript of testimony form July 24, 29 and 30, 1991, taken by Hoyt [hereinafter 7/24 Tr.] at 29-30). She found no blood typing inconsistent with the victim or the defendant (7/24 Tr. 35). Very small glass fragments were found on the hammer handle; they were consistent with samples taken from the patio door glass (Transcript of testimony from July 23, 25 and 26, 1991, recorded by Whatley [hereinafter 7/23 Tr.] at 52-54).

To show motive, the State introduced testimony of co-workers and notes taken from the electronic mail message system found in the computer system at Phillips Petroleum Company, where the defendant worked.

Debra Geruin shared office space with the defendant. In April or May 1990, the defendant told her he and his wife were having problems with their physical relationship and were not communicating well. The defendant's wife was not particularly interested in sex, and this attitude upset the defendant. He remarked Sandra had been treating him coldly; this hurt him, as he loved her very much. He bought her a new vacuum cleaner for Mother's Day (7/23 Tr. 100-07).

Debra K. Aubrey, the defendant's secretary, admitted she and the defendant had engaged in sexual intercourse approximately six time between August 1989 and January 1990 at places that included his house, her house and a Tulsa motel. She claimed the physical relationship had ended at that time, and they were now just friends. She admitted they continued to exchange notes through the office computer electronic mail system, and the defendant had said his wife was not interested in sex and seemed distant, pulling away from him if he tried to give her a hug (7/23 Tr. 115-20). He had never told Ms. Aubrey that he loved her, although he had said he loved his wife very much, and would never give up trying (7/23 Tr. 123-24). She explained the meaning of several of the notes she and the defendant had exchanged (7/23 Tr. 126-49, 154-94). She admitted that the defendant had signed one birthday note with the word "love," but did not think it was anything other than the love one friend has for another. She did not love him; they just had sex (7/23 Tr. 153).

The State also introduced a portion of a letter found in the defendant's computer hard drive. The letter was addressed to his wife, and in it he discussed their sexual problem and tried to convince her sex was a normal part of marriage. (7/23 Tr. 201f).

The medical examiner testified the victim had died as a result of blunt force injuries to the head. He saw nothing to indicate what could have caused the injuries, but said he could not exclude the hammer as a possible weapon, although he did not see an injury pattern consistent with that normally associated with a hammer. The nature of the injuries suggested she was probably unconscious when the repeated blows to the back of the head were administered (7/23 Tr. 264-65, 270, 282-90).

OSBI criminalist Douglas Perkins detected blood on the hammer handle after spraying it with luminol, a chemical that detects minute quantities of blood. He first detected what he believed to be blood in cracks in the handle. He also discovered small glass fragments in handle scratches near the hammer head; the scratches were perpendicular to the direction of the handle (parallel to the hammer head) (Separate transcript of July 26, 1991 proceedings reported by Whatley [hereinafter 7/26 Tr.] at 3-13).

Mr. Perkins also did a blood spatter analysis of the clothing worn by the defendant that evening. He did not do extensive analysis of the short, as they had lice on them. As a result of his analysis, he concluded the clothing exhibited spatters of medium velocity. This is consistent with blunt force trauma, the kind of pattern that can occur when one person beats another. Some of the blood was diffused on the shirt because of excessive moisture; when he had first opened the box containing the shirt, he notice the shirt had a perspiration smell about it, and was still moist. The shoes also exhibited a pattern of medium velocity, probably from stepping in the blood. The defendant's watch had smears, but he could see a spatter pattern associated with medium velocity spatters (7/26 Tr. 26-46). He could not make a determination of blood on the hammer head because the metal head itself could activate the luminol chemical (7/26 Tr. 48).

STATEMENT OF FACTS

The defendant's case.

The defendant presented several witnesses, many of whom were experts who did not like the way various law enforcement people had performed their jobs. Included in that group was Roger W. Shuy, a professor of linguistics at Georgetown University who testified he listened to tapes of the 911 call and the defendant's statements and came to the conclusion the defendant was upset and disturbed (7/24 Tr. 183-227).

Blair Gluba, a former federal criminal investigator, who was an expert in crime scene investigation and procedures, reviewed numerous transcripts, photographs and a videotape made by police at the scene. He offered several things investigators had done incorrectly at the time authorities arrived, including failure to take the defendant away from the scene; failure to use the front door for emergency personnel; failure to have firm management at the scene; failure to limit the number of people at the crime scene; failure to have a systematic approach in the initial examination of evidence at the scene; and failure to secure the yard as a part of the crime scene (7/24 Tr. 271-99).

Based on his observations, he concluded there probably was additional potentially valuable evidence at the crime scene that was not obtained (Transcript of testimony from July 30 and August 1, 1991, transcribed by Hoyt [hereinafter 7/30 Tr.] at 22). In his opinion, authorities focused on the defendant too early in the investigation (7/30 Tr. 42). He admitted some of the evidence could have been contaminated by the defendant before authorities arrived, and there were some things initial responders could not control. He based his opinion primarily upon reports and photographs, but had spent approximately two hours and 15 minutes at the scene over a period of two visits. Although he was able to open the locked storm door, he was not suggesting the officers lied when they said they could not do so. He could not rule out the possibility that books found on the floor were deliberately pulled off (7/30 Tr. 46-47, 55-56, 74).

Barry Rouw, a private investigator hired by the defendant, performed and videotaped glass-breaking experiments on the patio door at the defendant's house. Because a piece of carpet near the door had been removed for analysis, he laid another piece down (although without securing it) and, with the door closed, installed and broke new panes of glass to see were glass fragments would land. They landed in the same areas authorities found glass fragments the night of the murder. Also in each case, glass that had fallen closer to the closed door was brushed away when the door opened. He could not guarantee the force used to conduct his experiments was the same as that used by the person who broke the original pane of glass. He performed no experiments with the door open in the position law enforcement officials believe it was when the glass was broken (7/30 Tr. 95-117).

Roger Bruch, the victim's optometrist, performed a test to determine the strength of a soft contact lens found on the victim's body. The lens had a power of -4.50 diopters, and optic measurement different, but close to, the prescription and lenses he had given the victim in March 1990. He had prescribed the power in her right lens at -4.75 diopters; the left lens was -4.25 diopters. Tolerance on soft contact lenses is .125 diopters. The lens he tested was also consistent in size, color and marking with the ones he had given the victim. (7/30 Tr. 150-66).

However, optometrist Alvin E. Reynolds, an expert hired by the defendant, testified he had performed the same tests on the soft contact lens found on the victim's body, and had read the lens at between -5.25 and -5.75 diopters. This was not withhin tolerance of the prescription given the victim. If she was wearing this lens, she would have trouble reading, although a younger person could compensate for such an overcorrection more easily (7/30 Tr. 175-87, 201). Larry Birk, a manufacturer of hard contact lenses who sometimes reads soft ones, read the lens at -5.25 diopters, with a range of .25 diopters downward (7/30 Tr. 203-11).

The defendant also presented an expert who said there was no dew on the ground the evening of June 11, 1990 (7/30 Tr. 213-24).

Peter Barnett, a consulting criminologist, sprayed a piece of carpet taken from in front of the patio door at the defendant's house with luminol and discovered two, perhaps three, shoe impressions on the carpet between the family room and dining room where the body was found. One, perhaps two, bore suction cup design inconsistent with the shoes the defendant was wearing that night (7/30 Tr. 228-34). He also examined the defendant's shorts and T-shirt and found no glass; he would expect to find some glass if someone had worn those when breaking out a window pane. Although the shoes bore a cut on the soles made by some sharp object, he found no glass in it. He also admitted he had received the items after the OSBI had performed their tests on them, and understood the clothing had not been seized immediately after the victim was beaten (7/30 Tr. 235-42). He examined the hammer and found neither glass nor blood underneath the hammer head. He opined the hammer could not have been used because of this. He found hairs but no glass on the paper towels recovered with the hammer. A fiber found underneath one of her fingernails did not match clothing form either the victim or the defendant. Blood was found on a page of a book lying open on the floor; this suggests the book was on the floor and open when the blood spatter landed there. He found a shallow semicircular impression on the kitchen counter top that was consistent with having been struck by a hammer (7/30 Tr. 243-71). He admitted on cross-examination it was possible to break glass without getting fragments on clothing; it was also possible earlier processing of the evidence could account for the absence of glass, as would the fact that activity occurred after the glass was broken and before the clothing was taken (7/30 Tr. 283-85). The fibers under the fingernails could have come from contact with items while working in a clothing store, and could have been present for some time (Transcript of testimony taken August 1, 5 and 6, 1991, by Hoyt [hereinafter 8/1 Tr.] at 8).

Michael Baden physician and medical examiner from New York, reviewed autopsy photographs and other information in he defendant's case. He determined cuts on her hand were caused by a sharp object; injuries to the skull were caused by blunt object, but probably not by a hammer; they cause their own characteristic kind of tearing not found on the victim. The majority of blows to the skull would have caused immediate unconsciousness. Bleeding would have been slow because of the presence of small vessels; initial blood would have been soaked up by the hair. It could have been between 10 and 15 minutes before enough blood leaked out to begin accumulating on the floor; given that, it would not be surprising for a perpetrator not to leave bloody footprints (8/1 Tr. 56-70).

Clinical psychologist Allan Eugene Reynolds took background information from the defendant during which the defendant said the only problem in his marriage was the small amount of sexual activity. He also related the details of his affair with Debbe Aubrey, which his wife did not know about (8/1 Tr. 111-15). Testing on the defendant revealed no major personality disturbances; however, the defendant was undergoing lots of stress at the times of testing. It took him a long time to accept his wife's death, as evidenced by projective testing on several occasions (8/1 Tr. 118-49). The defendant had an above-average intelligence quotient (8/1 Tr. 133). His behavior in the house at the time of the murder indicated he was undergoing brief reactive psychosis, precipitated by a traumatic event such as the one that occurred that night. This would account for his rapid shifts in emotion. The condition can last from a few hours to a month afterwards; however, he did not exhibit the signs two days after the event, when the witness first saw him (8/1 Tr. at 150-64). In the witness' opinion, the defendant does not have the type of personality necessary to kill his wife (8/1 Tr. 173).

Blood spatter experts called by the defendant testified the blood found on the defendant's clothing was more consistent with the defendant having shaken his wife than with his having beat her (Transcript of August 6, 9 and 12, 1991, proceeding taken by Hoyt [hereinafter 8/6 Tr.] at 42). He based his conclusions on a number of tests performed and examination of the clothing (8/1 Tr. 277-301; 8/6 Tr. 5-41). He admitted he could not duplicate every aspect of what occurred the night of the murder (8/6 Tr. 64-75; transcript of testimony taken August 2, 6 and 7, 1991, by Whatley [hereinafter 8/2 Tr.] at 226).

The defendant also presented several non-expert witnesses in his behalf. Cindy Spears, a neighbor of the Allens, saw Sandra earlier on June 11, 1990, and the victim seemed excited about an upcoming anniversary trip she and the defendant were planning to take. The Allens' television was broken (7/24 Tr. 50-53).

Theresa Miller, Sandra Allen's co-worker, recalled the victim received a strange telephone call that evening at work. When the victim asked the identity of the party on the telephone, the person hung up. The victim remarked the person must have been from Dillard's, because he called her "Sandy"; everyone else knew her as Sandra. (7/24 Tr. 58-62).

The manager of the local Sonic Drive-In identified a receipt showing the purchase of three drinks at 9:13 p.m. that evening (7/24 Tr. 73-75). The store manager at Dillard's identified a time card showing the victim had checked out at 9:15 p.m. and a co-worker, Mark Spurgeon, clocked out at 9:24 p.m. (7/24 Tr. 80-83). Mr. Spurgeon said he walked directly to his car after clocking out, and it took approximately one minute to do so. (7/24 Tr. 85-88). The defendant also introduced enhanced copies of the 911 call and the audio portion of a video tape made at the scene. (7/24 Tr. 95-96). Another neighbor, David Nowotny, did not recall seeing any vehicles in the Allen driveway between 8:45 and 9:20 p.m.. He did see the defendant drive north between 8:45 p.m. and 9 p.m. (7/24 Tr. 105-07).

The defendant presented several character witnesses who said the defendant had always been honest, peaceful, non-violent, and was active in his church (8/1 Tr. 31-33; 37-39; 208-210; 215-16; 220-21).

A retired Highway Patrol captain drove between points and established distances and times for the defendant. The path the defendant took between Dillard's and the Assembly of God church was 4.6 miles and took 11 minutes and 56 seconds; the route from church to Sonic was 1.3 miles and took 4 minutes and 48 seconds; from Sonic back to Dillard's was 5.6 miles and took 12 minutes and 48 seconds; from Dillard's to the residence was 1.5 miles and took four minutes and 50 seconds (7/30 Tr. 137-42).

The medical examiner found a contact lens on the victim's body (8/2 Tr. 101). A nurse in the hospital emergency room removed two contact lenses from the victim's cheeks and handed them to an EMT; however, she was not even certain the transfer was completed, as her concern was not the contacts, but the victim's life (8/2 Tr. 258-63). The EMT recalled getting contact lenses from the nurse, but did not specifically whether he got one or two. He thought he gave them to someone at the nurses' station; however, things were hectic at the time (8/2 Tr. 264-66).

The defendant took the stand and gave a history of his relationship with the victim, his family and church (8/1 Tr. 47-56). He and the victim were planning a tenth anniversary weekend in Missouri; their two oldest boys were already with their grandparents, and they would drop their youngest off en route to their weekend destination (8/1.5 Tr. 57-58). He and the victim had problems with their sexual relationship. This difficulty prompted him to write the note to her that was found on his computer at work. Other than that, they were happy together (81/ Tr. 59-60).

On June 11, 1990, he bought some invitations for his wife at lunchtime, as well as buying a friendship card for Debbe Aubrey, the women with whom he had had sexual intercourse; she was having a bad day at work, and he wanted to cheer her up. He called his wife after lunch just to say hello. He arrived home after work at approximately 5:20 in the blue Oldsmoblile. His wife was preparing to leave for work in the green Malibu (8/1 Tr. 62-66).

He finished preparing the evening meal, and he and [son] ate. He changed clothes and mowed part of his lawn, banging his knuckles on a door while getting out the lawn mower. He finished mowing at approximately 7:30, cleaned up himself and [son] and left for the mall at approximately 8 p.m. He drove a short distance before he realized he had forgotten some keys; so he returned home and retrieved them, leaving [son] in the car. At Dillard's he and [son] visited briefly with the victim, but he left, fearful she would get into trouble if the store manager saw them. He and [son] went to another part of the mall, returned to Dillard's, where he bought some deodorant; the receipt show the purchase was made at 8:33 p.m. He went back to talk to his wife, when Theresa Miller told the defendant about a telephone call the victim had received. The victim then related that Theresa had received an obscene photograph in her car while it was parked at her residence. The defendant left, and the victim asked him to get her a cherry limeade. He left Dillard's at approximately 8:45 p.m., drove to the church and picked up some papers. The dashboard clock read approximately 9:05 p.m. He drove to Sonic and ordered the drinks, then returned to the mall. The victim's car was already gone, and he saw Mark Spurgeon walking to his car. He then drove home, taking approximately 5 minutes (8/1 Tr. 66-97).

As the defendant pulled off Jefferson Road onto a side street where his driveway was located, the defendant said his headlights panned across the yard; there, he said he saw a figure on his patio who changed directions and ran across the back yard as he pulled into the driveway. The victim's car was already there. He got out of his car, locked the doors with [son] inside and entered the house, coming through the garage side door and the utility room. As he entered the kitchen, he saw the victim lying on the floor at the end of the table in the dining room area. She was on her left side. The defendant said he rolled her over, talked to her and picked her up to try to get a response. As he held her, he noticed books lying on the floor in the living room, then noticed the broken patio door and television. He walked back to the victim and partially picked her up and shook her (8/1 Tr. 98-100). There was "blood all around her" (8/1 Tr. 101). He grabbed a towel to wipe her face and mouth and wanted to help her, but felt unable to. He then remember [son] was in the car. He walked towards the garage, then realized he should call for help. He headed for the telephone, and "evidently" nearby was the hammer (8/1 Tr. 101). He picked it up and banged the counter top in frustration. He then panicked, realizing there was blood on the hammer. He looked around for somewhere to hide it, and decided to hid it in the attic under some carpet pieces. He then remembered telephoning for help, hanging up and going outside to retrieve [son] when the officer arrived (8/1 Tr. 102-03).

He did not remember if he gave the officer a description of the man he saw running from his house. He remembered asking a neighbor to take care of [son]. Mrs. Herring took him to the hospital, and he thinks he signed some form there. An officer asked him to turn over his clothes. He went to church family's home to clean up. He gave police consent to search the house. He related the incident concerning the hammer at a later conversation. He remembered talking to people after the funeral. He said he told Mr. Herring he loved Sandra; that he did not know what happened, but he did know he did not kill the victim, adding he would have a hard time proving he did not kill her. He specifically testified he did not kill the victim (8/1 Tr. 104-115).

He was not certain what would have happened to his treasurer position at the church if he had been divorced or his affair came to light. He admitted having some problem areas in his marriage, but said they did not permeate his marriage. He wanted his wife to be affectionate, fun-loving and willing to please and be pleased (8/1 Tr. 117-25).

He acknowledged one of the computer notes to Debbe Aubrey mentioned his "problem" that would always be there; this was referring to his wife's attitude that sex was not necessary. He and the victim spent Mother's Day apart at her suggestion. He and Debbe Aubrey were close friends who confided in one another. His reference in one message that it would take him a long time, if ever, to get over something referred to his conversation with the victim concerning sex.. She had said he was oversexed; this jolted him, and he made reference to that in one of the messages. When he told Debbe he had things pent up inside him with a lot more wanting to come out, he was referring to the fact he had never before confided in anyone like he did her. He also explained notes commenting that he wished he could have talked to her over the weekend (8/1 Tr. 128-41). He did not recall if he told Agent Otte that he also picked up the friendship card for Debbe when he bought his wife's invitations; likewise, he may not have mentioned turning around to get the keys he had forgotten (8/1 Tr. 142, 146). [Son] played outside while he mowed the grass (8/1 Tr. 146). While it would have been shorter to drive by the house before he returned to Dillard's with the drink, that never crossed his mind (8/1 Tr. 150). He did not drive by the house at approximately 9:05 p.m.; if Mr. Coffman said that, he was mistaken (8/1 Tr. 153). He brought up the murder topic at the funeral with Mr. Herring because he knew he would be charged after the funeral (8/1 Tr. 185).

STATEMENT OF FACTS

Rebuttal witnesses.

The State presented rebuttal witnesses. Tanya Crossman, the unit secretary at the nurses' station when the victim was brought in, did not receive any contact lenses from anyone. No one else was manning the desk that night, although another shift did come on at 11 p.m. (Transcript of testimony taken August 7, 8 and 10, 1991 by Whatley [hereinafter 8/7 Tr.] at 10-12).

Alan Van Eastman attended the victim's funeral. He went up to the defendant afterwards and expressed sympathy. The defendant told him: "Alan, I don't know if I did it or not. I just don't remember what happened." The comment surprised Mr. Eastman, as he would expect someone to remember a detail such as that (8/7 Tr. 15-16). Three people testified that the defendant was not truthful or could become violent and lose his temper (8/7 Tr. 17-19, 23, 28). The State also presented another blood spatter expert who criticized the methodology used by defense experts (8/7 Tr. 85-111). He concluded the stains on the defendant's shirt were inconsistent with the kind of even distribution one would get if one shook a person (8/7 Tr. 112).

The defendant on surrebuttal brought back his clinical psychologist, who testified the defendant did not have the type of personality that would lend itself to temper flare-ups (8/6 Tr. 79-89).

Other facts will be presented as they become relevant to the propositions of error.

PROPOSITION I

NO ERROR OCCURRED BY THE COURT'S QUESTIONING OF WITNESSES; THE QUESTIONS WERE ASKED IN AN IMPARTIAL MANNER AND ELICITED THE TRUTH.

In his first assignment of error, the defendant complains the trial court erred in questioning the defendant, his forensic expert and the medical examiner. He acknowledges this Court has held it is not improper to question witnesses as long as it is done in an impartial manner on a material point. He claims, however, the court was not neutral in its questioning.

Aside from the clear legislative intent that a judge have the power to question a witness, see 12 O.S.1981, § 2614 (B), the power of a judge to question witnesses at trial is older than the State of Oklahoma itself. The forerunner to this Court first addressed the issue in Howard v. Territory, 15 Okl.Cr.199, 79 P. 773 (1905). The defendant's claim there was the same as it is here: error by the trial court in questioning witnesses. The Court said, after noting the defendant had waived the error:

In this connection, however, it may be well to observe that counsel sometimes misapprehend the office of a trial judge and the real purpose of a criminal trial. A trial should not be conducted in such a way as to aid the guilty to escape or to punish the innocent. Trials, in fact as well as in theory, should proceed in a manner which will elicit the truth, and thereby protect the innocent and punish the criminal. A trial court not only has the lawful right, but there are cases in which it is its absolute duty, to either direct the prosecuting officer to make inquiry as to a particular matter, or do so itself. Courts are not compelled to sit quietly by and see one wrongfully acquitted or unjustly punished, when a few questions asked by it might elicit the truth. But this power should be exercised with discretion, and in such a way as not to prejudice the rights of the territory or of the defendant. In the trial court a defendant should be accorded every reasonable opportunity to make his defense, and the court should see to it that he is surrounded by every safeguard of the law. When this is done, he should be compelled to submit to the searchlight of truth, and, by the facts which it reveals, go free or stand condemned. It is only by this standard that the citizen can be protected in his life and property; by the enforcement of this rule the law will command his admiration and respect.

Id. at __, 79 P. At 774. This Court had adhered to this philosophy. Arnold v. State, 803 P.2d 1145, 1149 (Okl.Cr.1990); Richmond v. State, 456 P.2d 897, 900 (Okl.Cr.1969); Henderson v. State, 385 P.2d 930, 936 (Okl.Cr. 1963); McGowan v. State, 380 P.2d 274, 277 (Okl.Cr.1963). These cases and earlier ones show that this Court affords the trial court a wide latitude concerning its ability to question witnesses. See, e.g., Stanley v. State, 94 Okl.Cr. 122, 230 P.2d 738, 744-45 (1951); Schmitt v. State, 57 Okl.Cr. 102, 47 P.2d 199, 212 (1935); Carrick v. State, 49 Okl.Cr. 65, 292 P. 1053, 1054 (1930). It should do so in the instances the defendant complains of, which the State now specifically addresses.

A. Questioning the defendant.

The defendant's main complaint centers around the fact the trial court questioned him. As the defendant notes in his brief, the court's questions dealt with the normal place the hammer was kept, and when the defendant last saw it there. These were logical questions and tended to shed light on the location of the murder weapon. In fact, the questions were logical responses to testimony by the defendant.¹ In his version of events at the house, the defendant testified that "[w]hen I got to the phone or when I was approaching the phone there evidently was a hammer laying there on the counter. I picked it up and out of frustration or whatever I hit the counter. I pounded the hammer top (sic) with it -- struck the counter top." (8/1 Tr. 101-02) (emphasis added).

The court's questions in light of this testimony are entirely logical and impartial, as they tend to shed light on where the hammer -- a purported murder weapon -- would normally be kept, since it "evidently" was merely lying on the counter. By the same token, the defendant's testimony concerning his reflexively picking up the hammer and hitting the counter top out of frustration would logically prompt the question whether he was right- or left-handed. It might actually have helped the defendant by showing his actions and where the counter top was hit was a natural reaction and would tend to show the jury he was telling the truth.²

This Court has upheld a conviction in the past when the trial court questioned the defendant while he was on the stand. Lacy v. State, 33 Okl.Cr.161, 242 P. 296 (1926). It should do so again here.

B. Questioning the forensic expert.

The defendant has cited in his brief questions the court asked Mr. Barnett. The questions concerned themselves with the date the witness received the hammer and the book with blood in it. The State fails to see how these questions prejudiced the defendant. The defendant claims in his brief that he was forced to submit an additional photograph to rebut the court's implication the bloody book story was fabricated. However, he failed to cite to the record where he gave that reason for submitting the photograph. This Court cannot reverse on an assertion concerning the court's questioning without citation to the record. See Howard v. Territory, 15 Okl.Cr.199, 79 P. 773, 774 (1905).

There is no merit to the defendant's assertion the court asked questions solely to emphasize that his expert could not have found glass on the hammer. Evidence had already established the hammer had been examined previously by State criminalists (7/23 Tr. 52; 7/26 Tr. 10). Indeed, the defendant through his own expert witness had presented evidence that he analyzed glass found in the hammer (7/30 Tr. 261). Therefore, if there was any point to be driven home by the court's questioning, it was done by the defendant's counsel himself. This argument is without merit.

C. Questioning the medical examiner.

The defendant has quoted to this Court a portion of the medical examiner's answer to the judge's questions asking how hard the medical examiner searched for another contact lens. The medical examiner also told the court he inserts a needle into each eyeball to obtain fluid for analysis, and that if a lens were present, especially a soft contact, it would have to be lifted out of the way (8/2 Tr. 103, lines 13-18). This tends to rebut the defendant's assertion on appeal that there was an "obvious hole" for the jury to speculate whether the medical examiner missed a contact, at least in the eye region.

Nor is it clear from this questioning that the court was "on the verge of criticism" of the witness for not looking for a second lens. The first lens was found of the victim's upper body and chest area (8/2 Tr. 101). The State submits if the medical examiner were thorough enough to find that contact, he would have seen another had it been lying around on the victim's body. The court was merely trying to ascertain whether it was a habit of the medical examiner to search for contact lenses. It was not.

In any case, the court's feeling that the issue was important and material was later re-enforced by the defendant himself, who called witnesses who testified they saw two contact lenses, and related as best they could remember what happened to them (8/2 Tr. 258-68).

There is no error here.

PROPOSITION II

THE TRIAL COURT DID NOT ERR IN REFUSING A CHANGE OF VENUE FOR THE DEFENDANT'S TRIAL

The defendant next complains the trial court erred in denying his motion for change of venue. The defendant divides his argument into pretrial issues and issues at trial. The state will address them in the same order.

A. Pre-trial issues have been adjudicated.

As the defendant notes in his brief, this Court has already addressed pre-trial publicity as it relates to change of venue. If fact, the defendant already appealed to this Court the district court's denial of his motion for change of venue before trial, submitting a brief in support which contained a factual background of the case, argument and authority, an affidavit of the person who conducted the telephone survey in Washington County and the results of that survey; and the defendant's trial court motion, together with all applicable exhibits. See Allen v. District Court of Washington County, 0-91-526, filed in this Court June 11, 1991.

This Court on July 9, 1991, issued an "Order Denying Motions to Consolidate, to Stay Effectiveness of Discovery Order and Petition for Writ of Mandumus and/or Prohibition in Case No. 0-91-525 and Denying Motions to Stay Jury Trial, To Supplement the Record, for Oral Argument and to Present Testimony of Witnesses and Petition for Writ of Mandamus Directing Change of Venue in Case no. 0-91-526" (hereinafter Order). As indicated by the title of the Order, it covers many things, most of which are not applicable here. However, this Court's denial of the defendant's application for writ of mandamus directing a change of venue is dispositive of this part of the defendant's proposition:

IT IS THE FURTHER ORDER OF THIS COURT that Petitioner's petition for writ of mandamus, Case No. 0-91-526, directing the District Court of Washington County to change the venue of the currently pending First Degree Murder charge against the Petitioner is DENIED. It is well established that the granting of a change of venue is within the sound discretion of the trial court and such decision will only be reversed if that discretion is abused. Robinson v. State, 677 P.2d 1080 (Okl.Cr.1984), Hammons v. State, 560 P.2d 1024 (Okl.Cr.1977). The District Court denied Petitioner's motion for a change of venue but did so noting Petitioner's right to reurge the motion during voir dire examination. We, therefore, find no abuse of discretion. This Court had repeatedly held that an accused is not entitled to a jury who knows nothing about his case, but that he is entitled only to jurors who can fairly and impartially decide his case based on the evidence presented at trial. See Shultz v. Oklahoma, __ P.2d __, 62 OBJ 1511 (Okl.Cr. May 18, 1991). Thus, the better procedure is to proceed to voir dire and determine any prejudice of the jury panel at that time.

Order dated July 9, 1991.

From this, the State makes two observations. The first is that this Court had the option of simply refusing to exercise jurisdiction to determine whether mandamus should lie. See Coleman v. State, 693 P.2d 4, 6 (Okl.Cr.1984). It did not. The second observation is that, once this Court assumed jurisdiction and denied the writ, the question whether the trial court abused its discretion before trial in denying the defendant's motion for a change of venue became res judicata, and cannot be relitigated at this time. This Court has held that the doctrine of res judicata "usually only extends to facts and conditions as they existed at the time judgment was rendered and does not apply where there are new facts which did not exist at the time of the prior judgment." Marutzky v. State, 514 P.2d 430, 432 (Okl.Cr.1973) (citing Johnson v. Flemming, 264 F.2d 322 (10th Cir 1959). Using this definition, together with the absence of new facts presented before jury selection began, the defendant's pre-trial complaint is clearly res judicata. The defendant litigated this once, using his pollster's results and exhibits; he should not be allowed to do so again.³

B. Trial issues have no merit.

Additionally, the state submits the defendant has waived this issue for this Court's consideration by failing to state with specificity in his affidavits why he could not receive a fair trial in Washington County. Each of the affidavits the defendant attached to his motion for a change of venue contains the following language:

That there is a prejudice existing in Washington County against the said Defendant, STEPHEN LEE ALLEN, and that a fixed preconception as to the guilt of the Defendant prevails generally throughout Washington County, especially among such citizens as usually compose the juries in the District Court in Washington County. That this affiant has considerable acquaintance with the citizens of Washington County and this affiant states that the minds of the inhabitants of Washington County are so prejudiced against the accused, STEPHEN LEE ALLEN, that a fair and impartial trial of this matter which is now pending in the District Court of Washington County, cannot be had at this time in Washington County.
Further, affiant saith not.

(O.R. 424f). This Court has held that a defendant must present affidavits containing more than mere conclusions; they must set forth facts showing the trial court why the defendant cannot receive a fair trial in the count. Here, the affidavits all present the same language: that the affiants know people in the county and that these minds are so prejudiced against the defendant he cannot receive a fair trial. These are mere conclusions, unsupported by specific facts, and did not meet the threshold requirement needed before a judge can consider the motion. ⁴ Wininegar v. State, 97 Okl.Cr. 64, 257 P.2d 526, 531 (1954); Browder v. State, 16 Okl.Cr. 43, 180 P. 571, 572 (1919). It was therefore not error to deny the motion, either before trial or during trial.

The decision whether to grant a motion for change of venue lies in the discretion of the trial court, and that trial court's decision will not be overturned absent an abuse of that discretion. Price v. State, 782 P.2d 143, 146 (Okl.Cr.1989). This Court has defined "abuse of discretion" in this contest as a clearly erroneous conclusion and judgment, on that is clearly against logic and effect of fact presented in support of and against the application for change of venue. Brown v. State, 304 P.2d 361, 365 (Okl.Cr.1957).

No such erroneous conclusions exists here. The defendant has presented ample evidence to show that most people in Washington County had heard something about the Allen murder. However, that is not the standard this Court uses. The proper inquiry is whether the defendant was provided with a fair and impartial jury. McBrain v. State, 763 P.2d 121, 123-24 (Okl.Cr.1988). A defendant is not entitled to a jury completely ignorant of the facts. A prospective juror may have some kind of opinion and still be acceptable if he states he can put that opinion aside and render a fair and impartial verdict based solely on the evidence presented to him. Kiser v. State, 782 P.2d 405, 409 (Okl.Cr.1989); Wilkett v. State, 753 P.2d 383, 387 (Okl.Cr.1988).

This case is similar in many respects to Frye v. State, 606 P.2d 599, 602-03 (Okl.Cr.1980), where a minister and one of his parishioners were tried for arraigning the death of the parishioner's husband. The two claimed the trial court improperly denied a motion for change of venue, citing a "circus-like" atmosphere in the proceedings. This Court found no merit in the contention, stating that each juror on the record had said he could render a verdict based solely on the evidence at trial. Likewise, this Court was not impressed with studies conducted showing general knowledge of the crime in the small town of Beaver, a town in which 400 residents had signed a petition stating they wanted to live in a town that was safe for its children. Wooldridge v. State, 659 P.2d 943, 945-46 (Okl.Cr.1983).

Here, as in the above cited cases, the trial court conducted and allowed extensive questioning of the prospective jurors, going in camera when necessary. This Court should hold that, under the totality of the circumstances, Rojem V. State, 753 P.2d 359, 265 (Okl.Cr.1988), cert. denied, 488 U.S. 900 (1988), the trial court did not abuse its discretion in denying the motion, either before or during the trial.

The defendant cites as an example a concern by the jurors that someone might burglarized their homes while they were sequestered, as their picture had been on the front page of the local newspaper. He reasons that the jurors must have looked at the newspaper to know their picture was on it. He offers no testimony other than the bailiff, who would have no knowledge of how the jurors determined their picture was on the front page of the paper. In essence, he would have this Court overturn his conviction based on the sheerest speculation that the jurors would have to have actually seen and read the newspaper -- as opposed to hearing about it in casual conversation -- in order to know about the picture. There is a rebuttable presumption that a defendant can obtain a fair and impartial panel his own county, and the defendant must rebut that presumption by clear and convincing evidence. Shultz v. State, 811 P.2d 1322, 1329-30 (Okl.Cr.1991). He did not present any testimony by the jurors -- either before or after trial -- to rebut this presumption of a fair trial and regularity in the proceedings. See Moore v. State, 788 P.2d 387, 393 (Okl.Cr.1990), cert. denied, __ U.S. __, 111 S.Ct. 277, 112 L.Ed.2d 182 (1990); Rojem, 753 P.2d at 365; Robinson v. State, 677 P.2d 1080, 1083-84 (Okl.Cr.1984), cert. denied, 467 U.S. 1246 (1984); Hammons v. State, 560 P.2d 1024, 1029 (Okl.Cr.1977). ⁵

The State notes in passing the defendant's specific examples of prospective jurors who had heard opinions expressed outside the courthouse. Of those, all but Mrs. Wallace were excused from the jury. Mrs. Wallace was passed for cause by the defendant's attorneys (Transcript of voir dire conducted on July 19 and 22, 1991, at 70). The defendant concludes his proposition with essentially this argument: at least some of the 37 people questioned during voir dire must have had an opinion based on publicity. However, as noted above, this is not the test this Court uses. See Kiser, 782 P.2d at 409; Wilkett, 753 P.2d at 387.

This proposition is without merit.

PROPOSITION III

THE DEFENDANT WAS NOT PREJUDICED BY THE TESTING OF WHICH HE COMPLAINS, AND HAS WAIVED THIS PROPOSITION OF ERROR ON APPEAL.

The defendant here claims the trial court erred in failing to cut off testing by the State on certain items of physical evidence. However, the defendant has cited no relevant authority to support this proposition of error. This Court has held that failure to provide relevant authority in a proposition of error waives consideration of that error on appeal. Wolfenbarger v. State, 710 P.2d 114, 116, (Okl.Cr.1985), cert. denied, 476 U.S. 1183 (1986); Conway v. State, 483 P.2d 350, 352 (Okl.Cr.1971). It should adhere to that holding in this instance.

However, should this Court deem the proposition not waived, there is still no action warranting reversal. By the defendant's own dates, he received the technical report concerning the finding of glass in the hammer handle on June 18, 1991. Voir dire started on July 15, and testimony did not begin until July 22, 1991. Thus even assuming the defendant did not know of the discovery before he received a copy of the criminalist's report on June 18, he had over a month before the start of trial to prepare for the evidence that the hammer handle contained glass. This is well within the 10-day period set by this Court. Allen v. District Court, 803 P.2d 1164, 1167 (Okl.Cr.1990).

It is the State's position that a month is more than enough time to prepare for the use of such evidence, and there is no error. However, should this Court disagree, it must hold that the defendant must have not only error, but injury that affects a substantial right before reversal will be had. 20 O.S.1991, § 3001.1; Newsted v. State, 720 P.2d 734, 739 (Okl.Cr.1986), cert. denied, 479 U.S. 995 (1986); Harrall v. State, 674 P.2d 581, 583 (Okl.Cr.1984); Riggle v. State, 585 P.2d 1382, 1388 (Okl.Cr.1978); Powell v. State, 478 P.2d 923, 925 (Okl.Cr.1970). The defendant has failed to show injury here, other than the tendency of the evidence to link the hammer with the breaking of the glass in the patio door. The defendant would have this Court exclude the evidence because it was damaging to him. The State submits any relevant evidence is going to be damaging to the defendant, as it will tend to show that the defendant committed the act for which he was on trial. See 12 O.S.1981, §§ 2401, 2402.

This proposition is waived for this Court's consideration on appeal, and is without merit.

PROPOSITION IV

THE TRIAL COURT DID NOT ERR IN REFUSING THE DEFENDANT'S REQUEST FOR EXPERTS' WORKING NOTES; THIS COURT HAS NEVER REQUIRED THEM TO BE TURNED OVER, AND DOES NOT SO REQUIRE NOW.

The defendant complains in this proposition that the trial court erred in refusing to give him working or contemporaneous notes of the State's experts. This Court has never required such notes to be turned over to defendants, and should not start now.

The defendant cites as his sole authority Allen v. District Court, 803 P.2d 1164 (Okl.Cr.1990). That case does not avail him. Allen requires the prosecution to turn over

any reports or statements made by expert in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons.

Id. at 1168 (emphasis added). By its plain language, Allen requires the prosecutor to turn over "reports or statements," including "results" of tests.

In interpreting a similarly worded provision in the federal discovery code, ⁶a federal appeals court in United States v. Iglesias, 881 F.2d 1519 (9th Cir. 1989), cert. denied, 493 U.S. 1088 (1990) focused on the words "results" and "reports." It defined "report" as "an official or formal statement of facts or proceedings." Id. At 1523 (quoting Black's Law Dictionary 1464 (4th ed. 1968)) or "an account ... that is prepared, presented or delivered, usually in formal or organized form." Id. (Quoting American Heritage Dictionary 1103 (6th ed. 1976)). It defined "result" as "the conclusion or end to which any course or condition of thing leads." Id. (Quoting Blacks at 1478). Using these definitions, the Ninth Circuit held the trial court acted properly in refusing to force the prosecution to turn over notes of testing performed by prosecution experts. Id. See also United State v. Dennison, 937 F.2d 559, 565-66 (10th Cir. 1991) (interpreting a similar provision in the federal rules requiring the defendant to turn over reports of its own experts, holding the trial court erred in allowing the prosecution access to notes taken by the defendant's psychiatrist). The State urges this Court to adopt this reasoning.

This Court has never required prosecution witnesses to turn over what are essentially working or field notes to a defendant. See Wing v. Sate, 490 P.2d 1376, 1382 (Okl.Cr.1971), cert. denied, 406 U.S. 919; Smith v. State, 462 P.2d 328, 330 (Okl.Cr.1969). Allen did not change that, and this Court should not change it now.

PROPOSITION V

NO ERROR OCCURRED IN REFUSING TO REMOVE JURORS, AS THEY STATED THEY COULD BE FAIR AND IMPARTIAL IN DECIDING GUILT AND PUNISHMENT.

The defendant here alleges the trial court erred in refusing to sustain three challenges for cause. A more thorough reading of voir dire should convince this Court otherwise.

The defendant has selected excerpts from voir dire of the prospective jurors to show their bias. The State will respond in the same fashion; recognizing, however, that this Court will be better informed if it reads the entire voir dire segments of the jurors complained of. It is not isolated responses, but the juror's attitude, reflected in his answers as a whole, that determine whether he can be fair and impartial.

A. Prospective Juror George.

As an example, the defendant quotes one question and answer on page 29 of the July 15, 1991 voir dire transcript (hereinafter 7/15 VD). The State submits that a better understanding can be gained from reviewing questions and answers put to Mr. George both before and afterwards:

MR. CARLSON: Do you feel like, Mr. George, that I would need to put on more proof on behalf of Steve in this particular case because of the newspaper or because of what people have said to you than I would if we didn't have the newspaper saying those things, or we didn't have people saying things? Would I need to put on more proof because they said that?
JUROR GEORGE: I don't think so.
MR. CARLSON: Why do you say that?
JUROR GEORGE: Well, if you can prove it's not true -- I don't think the paper has no [sic] influence on what I would believe. I don't think what's told in the paper, gossip or anything else, would affect my thinking.
MR. CARLSON: Okay. But you still, I take it, would require me to prove something to you to show that what -- that the paper's off base or that these people's opinions are off base. Is that a fair statement?
JUROR GEORGE: I would think so, yes.
MR. CARLSON: That's all we have at this point, Your Honor. Thank you.
THE COURT: I can't leave it up in the air, Mr. George. Let me just close it by saying that Mr. Carlson said they have no obligation to prove anything. Do you understand that? Can you accept that?
JUROR GEORGE: Right.
THE COURT: The burden in this case will be the State of Oklahoma.
JUROR GEORGE: Right.
THE COURT: To prove his guilt, if they can, beyond a reasonable doubt. Will you follow that as a law?
JUROR GEORGE: I sure would.
THE COURT: And of course the purpose we're in here is to make sure that gossip or news articles don't impact your decision. Is that your position?
JUROR GEORGE: Would not impact it?
THE COURT: That's correct.
JUROR GEORGE: No, it wouldn't.
THE COURT: Thank you. You can return back to the jury room.

(7/15 VD 29-30). In fact, Mr. George was more adamant in his earlier assessment of the opinions of others and news articles. He started by saying that he knew about the case he had read from the newspapers, "and that was very little" (7/14 VD 8). When asked whether it would be proper for him to consider the opinions of others in making a determination in the case, he responded, "no way." (7/15 VD 11). He further stated he had no opinion the case (7/15 VD 11-12), and did not talk much with others about the defendant's guilt (7/15 VD 19). He said he did not think the opinions of others would much affect him, "because I don't think they actually knew more about it than I did." (7/15 VD 20). He had never expressed an opinion about the case because "I always just assumed that I really didn't know the facts because there were different opinions, and how the hell would I know because I didn't know the people and haven't' met the people in my life" (7/15 VD 21). While Mr. George expressed a preference for evidence from the defendant, he added, "[b]ut I'd also require it the other way. It would have to be shown to me that he did it. Both ways." He understood the defendant did not have to prove anything, stating "Well, I suppose you could say that I've got to be convinced, right," agreeing with defense attorney that he would have to be convinced beyond a reasonable doubt (7/15 VD 23). and that the defendant was innocent until proven guilty (7/15 VD 23-24). When asked how he would vote if the prosecution had merely erected "a big wall of suspicion" against the defendant, Mr. George replied, "I think they'd have to prove it to me before I'd vote him guilty." (7/15 VD 25).

This Court has long held that a juror is not disqualified simply because he may have formed an opinion as a result of conversations with others. Such a juror can still qualify for service if he does not have an opinion that would require evidence to remove it. Wilkett v. State, 753 P.2d 383, 387 (Okl.Cr.1988); Porter v. State, 361 P.2d 695, 700 (Okl.Cr.1961). The question is not whether a juror has preconceived opinions, but whether he has expressed a willingness to set aside those opinions and render a verdict based on the evidence. Wooldridge v. State, 659 P.2d 943, 945-46 (Okl.Cr.1983). If a juror is prejudiced against the defendant for some reason, he should be removed;

Upon the other hand, when no personal class, or race bias or prejudice appears to exist in the mind of the juror against the defendant, but it does appear that from rumor, or reading the public press, or from notoriety, the juror has an opinion, as to the guilt of the defendant, but that such opinion will not combat the testimony or resist its force, and the court is satisfied that the juror can and will lay this opinion aside, and base his verdict alone upon the testimony of the witnesses and the instructions of the court, then the juror is competent.

Scribner v. State, 3 Okl.Cr. 601, 108 P. 422, 424 (1910). Here, Mr. George did not even have a strong opinion to combat the testimony or resist its force; rather, he said the prosecution would have to prove its case before he would vote for the defendant's guilt. Based upon all the questioning, the State submits Mr. George would hold the defendant to no special standard or require him to come forward with proof.

B. Prospective Juror Wilson.

The defendant complains about Mr. Wilson because Mr. Wilson said he would lie if he were guilty of a crime. He cites instances in the transcript. However, he also gave Mr. Wilson an opportunity to elaborate on his answer, and Mr. Wilson cleared up any misunderstanding. After Mr. Wilson said he would not expect other witness to lie, the following transpired:

MR. CARLSON: If I understand what you're telling me then, Mr. Wilson, you really are holding the defendant, the person on trial, to a different standard?
JUROR RODNEY WILSON: No, I'm not holding him to a standard. I'm believing his standard is being held differently by himself. The way I picture this is the lawyer has a job to perform and he's going to perform that job. Everybody on the witness stand is under oath. If they are a law enforcement officer or a private citizen, they are under oath and have a duty to answer the questions to the best of their knowledge the way that they saw it. They have nothing to gain or lose by lying or anything else. So there're, you know, expected to tell the truth, to tell what they know, or to answer the questions that are asked of them. They may not be allowed to expand on that and clarify like I'm clarifying here. If you asked me a question and I have to say yes or no, I'd say no, but then I'd clarify it. A guilty defendant, if he is on the stand, as far as I'm concerned he's going to squirm and he's going to say whatever can to get off, whatever he feels is necessary. I don't know if he's guilty or not, so I don't know if he's lying. I don't know if he's telling the truth. I'm going to assume that he's going to tell the truth regardless of what the evidence against him shows, and it's the evidence itself that's going to point to the guilt, not the testimony of the defendant.
MR. CARLSON: Could you give Steve's testimony the same weight that you could a police officer?
JUROR RODNEY WILSON: Sure. I think you're going to have to.
MR. CARLSON: Could you do that in light of the fact that Steve's charged with murder in the first degree?
JUROR RODNEY WILSON: Sure. I don't know that he's guilty or innocent. The only thing I can see that's going to -- that we have to go on is the facts presented from both sides.

(Voir dire transcript of July 18, 1991 [hereinafter 7/18 VD] at 58-59) (emphasis added). From this statement alone, it is obvious Mr. Wilson's earlier evaluations as to the truthfulness of a defendant-witness were based on his subjective beliefs, qualified by the statement that he would lie if he had committed the act. (See 7/18 VD 41, 55). However, he also agreed with the presumption of innocence, stating that his job as a juror would be to listen to the facts, trying not to be influenced by the demeanor of one witness over another (7/18 VD 23-24, 40). He also stated that if the prosecution presented only enough evidence to cast suspicion on the defendant, he would find the defendant not guilty, because "[s]uspicion is not guilt." (7/18 VD 50). He had heard opinions that the defendant was guilty, but had responded that the defendant was innocent until proven guilty (7/18 VD 53).

Under these circumstances, the court was correct in refusing to excuse Mr. Wilson for cause.

Concerning his remarks about the death penalty, it is obvious Mr. Wilson was understandably reluctant to form an opinion concerning punishment based on a hypothetical situation presented before he had even heard any evidence. When pressed, however, he did say that he "thought" he would automatically give the death penalty based on the hypothetical the defendant's attorney gave him. However, he had stated earlier that he could consider the punishment options of life and life without parole (7/18 VD 32). He also said he would follow the instructions the court gave him concerning punishment, stating "you give me the rules and that's what I'm going to do is follow them." (7/18 VD 33). This Court has held that it is not improper to refuse to excuse a juror, even if that juror had indicated he would give the death penalty under certain situations, if that juror also said he would follow the law given him by the trial court. Boltz v. State, 806 P.2d 1117, 1122 (Okl.Cr.1991), cert. denied, __ U.S. __, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991). That is precisely what Mr. Wilson said he would do.

C. Prospective Juror Vanaken.

Likewise, Mr. Vanaken's remarks, when taken in context, show he had no predisposition toward the death penalty. After making the remark that the defendant first cites, the trial court informed Mr. Vanaken there were three possible punishments for murder, then asked him if he could consider all three. He answered he could (Transcript of July 19, 1991 voir dire [hereinafter 7/19 VD] at 60-61). Then,

THE COURT: And would your opinion about the death penalty be automatic in a case as opposed to considering the three choices that are available if it's your task?
JUROR VANAKEN: No, I don't think so.

(7/19 VD 61). From this alone, Mr. Vanaken indicated his willingness to follow the law that was presented to him. He repeated this willingness when being questioned by the prosecutor, when he said he would listen to the law, the evidence and then make a decision regarding the appropriateness of punishment (7/19 VD 67). In fact, the most the defendant's attorney's got out of Mr. Vanaken was that it was "possible" some factors might make him "lean more towards the death penalty than [he] would toward life imprisonment." (7/19 VD 71). ⁷

There is no error in refusing to excuse for cause this prospective juror. Boltz, 806 P.2d at 1122. This assignment of error is without merit.

PROPOSITION VI

EVIDENCE OF OTHER CRIMES WAS PROPERLY ADMITTED TO SHOW MOTIVE, AND TO REBUT EVIDENCE GIVEN DURING THE DEFENDANT'S CASE-IN-CHIEF.

The defendant complains in this proposition of the trial court's allowing evidence of the defendant's sexual relationship with co-worker Debbe Aubrey; and alleges rebuttal evidence by two witnesses was improper. The State will address the complaints in the same order.

A. The Debbe Aubrey affair.

He claims here the evidence he had a relationship with Deborah Aubrey was not relevant to show he murdered his wife. The defendant was charged with premeditated murder (O.R. 1). A part of that proof was the defendant had formed some premeditated design to effect Sandra Allen's death. The evidence concerning his relationship with Ms. Aubrey was necessary to prove motive. See O.R. 1105.

The defendant focuses on the fact that the physical relationship between the two was over. However, as the dozens of notes taken out of the electronic mail system show, the two were still very close, discussing personal problems; at one point, the defendant even sent her a birthday note and signed it with the word "love." (7/23 Tr. 153). This relationship, combined with evidence that the defendant was still not satisfied with his sexual relationship with his wife (7/23 Tr. 102-03, 201f) provide strong evidence of motive. These past acts are relevant to show that motive. 12 O.S.1981, § 2404(B); Cook v. State, 704 P.2d 86, 88 (Okl.Cr.1985). See also Koonce v. State, 696 P.2d 501, 507 (Okl.Cr.1985), overruled on other grounds, Landtroop v. State, 753 P.2d 1371 (Okl.Cr.1988) (which was itself overruled in Jones v. State, 772 P.2d 922 (Okl.Cr.1989) and Drew v. State, 771 P.2d 224 (Okl.Cr.1989)); Bristow v. State, 644 P.2d 118, 120 (Okl.Cr.1982).

It must be stressed here that it is not simply the sexual relationship with Ms. Aubrey that is relevant; it is also the fact that the defendant's sexual relationship with his own wife had not improved, and the defendant was obviously taking great pains to cultivate and perpetuate his relationship with Ms. Aubrey. The defendant also stresses that evidence showed the physical relationship was over. However, this evidence came from the defendant and Ms. Aubrey themselves, and the jury was entitled to give that portion of the testimony whatever weight they felt it deserved. Intent need not be proved by showing the defendant planned and plotted to kill his wife for [w]eeks or months. It could also be proved by showing that this man, who had a violent temper and who had been known to strike out in anger (8/7 Tr. 17-19, 21-23, 26-28), lived in what he admitted was a less than perfect relationship with his wife; had engaged in a sexual relationship with another woman; and continued to remain close to that same other woman, going so far as to sign one note with "love."

There is no question the defendant was at the house for some period of time before he call police. He claims the main focus of the trial was whether he was present at the time his wife was murdered. The evidence of which he complains, taken together with other information concerning his relationships, provided a strong motive for him to be present when she was murdered. In this manner, it was essential to the prosecution's case, and there was no error in allowing it. 12 O.S.1981, § 2403; Cook, 704 P.2d at 88.

B. Tom Bevel and Alan Eastman.

The defendant complains that both Alan Eastman and Tom Bevel were allowed to testify. He claims that both could have testified during the State's case-in-chief, and served to do nothing more than re-hash evidence presented during the prosecution's case-in-chief. The State disagrees with this assessment, and with the defendant's law.

He cites Plumlee v. State, 361 P.2d 223, 225 (Okl.Cr.1961) as sole support for this subproposition. In Plumlee, the State called as rebuttal a neighbor who repeated almost word for word what she had testified to during the case-in-chief. This Court criticized that practice, adding the facts of that particular case.

Should be distinguished from cases where the evidence in chief is not introduced initially and is presented for rebuttal, subject to the discretion of the trial court. In the case at bar, the so-called rebuttal was identical, almost to the word, of the testimony of the same witness in her previous testimony.

Id. at 225. That was not the case here. The State may have known in general terms what defense experts were going to say concerning blood spatter; however, they had no way of knowing the specifics of the experts' testing, etc., used to reach their conclusions. Once they heard those specifics, it was proper to call Mr. Bevel to analyze the methodology used by defense experts.

Likewise, the defendant when he took the stand specifically referred to Robert Herring's recollection of what was said after Sandra Allen's funeral, saying Mr. Herring was mistaken in his recollection. It is not improper to bring forth another witness who would refute the defendant by recalling the defendant said the same thing to him. The defendant testified that Mr. Herring misunderstood him. Mr. Eastman's testimony tended to refute those allegations.

This Court has held rebuttal evidence can be properly introduced, regardless of whether it might have been introduced during the prosecution's case-in-chief or whether is somewhat cumulative. Kinsey v. State, 798 P.2d 630, 633-34 (Okl.Cr.1990); Spencer v. State, 795 P.2d 1075, 1077 (Okl.Cr.1990); Salyers v. State, 755 P.2d 97, 102 (Okl.Cr.1988). Here, the evidence could not have been introduced during the case-in-chief, because the State had no way of knowing in advance the precise testing method used by the defendant's experts. Even more to the point, the State could have no way of knowing the defendant would refute Mr. Herring's testimony of what was said after Sandra Allen's funeral: an argument can be made that information concerning the defendant's testimony need not be turned over to prosecutors. See Allen, 803 P.2d at 1168.

The defendant also comments that, because of the new discovery rules set forth in Allen, rebuttal testimony is no longer necessary. The State strongly disagrees. There is a huge difference between the unsworn, unverified summary of testimony presented by a defense attorney pursuant to a court's discovery order, and the testimony of a witness who testifies under oath and is subject to cross examination, as this Court well knows. Additionally, for this Court to hold as the defendant would have it hold would be to contravene the dictates of the Legislature concerning the order in which a trial must be held and the right of parties to present evidence. See 12 O.S.1981, § 577.

PROPOSITION VII

THE TRIAL COURT PROPERLY ALLOWED QUESTIONING OF THE DEFENDANT'S FORENSIC PATHOLOGIST, AS IT TENDED TO SHOW THE WITNESS' BIAS.

The defendant here alleges the trial court acted improperly in allowing the prosecutor to voir dire Dr. Baden with evidence of past disputes with various authorities. The State first response the defendant has waived this proposition on appeal by failing to cite relevant authority. Wolfenbarger v. State, 710 P.2d 114, 116, (Okl.Cr.1985), cert. denied, 476 U.S. 1182 (1986); Conway v. State, 483 P.2d 350, 352 (Okl.Cr.1971).

However, should this Court deem the proposition not waived, the State responds that the questioning concerning the pathologist's past dealings was properly admitted to show bias. Here, the prosecution offered evidence in front of the jury ⁸ to show the witness was fired from his position as chief medical examiner in New York City; that he made an improper reference to the autopsy of Nelson Rockefeller; that he lost evidence in two out of approximately 30,000 homicide cases; that he had run-ins with the district attorney because he would not testify the way the prosecutor wanted him to; and the he changed the cause of death in a death certificate after a body had been disposed of.

The State submits these go to credibility of the witness, as they could tend to show the witness was biased against prosecutors as a result of his past run-ins, even though he also worked with them on occasions. As this Court observed:

We agree with appellant that the prohibition against extrinsic evidence of specific instances of conduct found in section 2608(B) is inapplicable to impeachment evidence which tends to show a witness's bias. Foster v. United States, 282 F.2d 222 (10th Cir. 1960). The general rule is that evidence of bias is never collateral and may be proved extrinsically because it is "always relevant as discrediting the witness and affecting the weight of his testimony." Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). See also Rhodes v. State, 695 P.2d 861 (Okl.Cr.1985).

Fisher v. State, 761 P.2d 900, 901 (Okl.Cr.1988). Therefore, even should this Court deem the proposition not waived, it is without merit.

PROPOSITION VIII

THE AUDIO PORTION OF THE VIDEO TAPE WAS PROPERLY EXCLUDED, AS IT WAS CUMULATIVE AND CONFUSING AND THE EVIDENCE SOUGHT THROUGH IT WAS AVAILABLE THROUGH OTHER MEANS.

The defendant here asserts the trial court erred in not allowing him to play for the jury the audio portion of the video tape shot at the crime scene the night Sandra Allen was murdered. Initially, it should be noted that this proposition of error is not properly before this Court for determination. The trial court ordered the audio portion to be excluded in an in camera hearing before the defense witness took the stand (7/24 Tr. 263-64); as such, it was a motion in limine. A ruling on a motion in limine is purely advisory and is not conclusive; to properly preserve an objection, it must be lodged at the time the evidence is sought to be introduced to give the trial court an opportunity to change his or her mind. Bristow v. State, 644 P.2d 118, 120 (Okl.Cr.1982); Teegarden v. State, 563 P.2d 660, 662 (Okl.Cr.1977); See also Rushing v. State, 676 P.2d 842, 850 n.7 (Okl.Cr. 1984). The defendant failed at the time the tape was offered to challenge the ruling (7/24 Tr. 277), and had thus failed to preserve any error that may have occurred, and this Court should not consider it.

However, should this Court believe the issue was not waived, the State directs its attention to the following:

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise.

12 O.S.1981, § 2403. It is the State's contention that, even if the evidence were relevant, it would mislead the jury by attempting to judge the entire investigation by a segment approximately five minutes long; and would tend to confuse the issue by focusing the jury's attention on a collateral issue. See Cooper v. State, 671 P.2d 1168, 1173 (Okl.Cr.1983) (trial court acted properly in excluding evidence of a prior information charging a third person in the defendant's case; the evidence would confuse the issue by looking at the reasons the prosecutor charged the defendant).

Additionally, the defendant was able to get before the jury by other means the points he wanted to make through the audio portion of the tape. Eddie Mason testified that the defendant became a suspect after an initial walk-through, at approximately 10:30 p.m., but he was not necessarily the prime suspect (7/22 Tr. 241). OSBI Agent James Otte also testified the defendant became a suspect quickly, because the scene didn't fit what he normally considered a burglary scene (7/22 Tr. 262-66). The initial officer on the scene admitted there were several people running around in the house, and they disturbed some of the evidence (7/22 Tr. 110). And, as the defendant admits in his brief, "[t]hese 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." Brief of defendant at 62. Consequently, the audio portion of the tape would have been cumulative at best, as the defendant was able to get his evidence before the jury by other means. Sellers v. State, 809 P.2d 676, 683 (Okl.Cr.1991), cert. denied, __ U.S. __, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991); Fox v. State, 779 P.2d 562, 572 (Okl.Cr.1989), cert. denied, 494 U.S. 1060 (1990).

Consequently, this proposition is without merit.

PROPOSITION IX

EVIDENCE, TAKEN IN THE LIGHT MOST FAVORABLE TO THE STATE, IS SUFFICIENT TO ENABLE ANY RATIONAL TRIER OF FACT THAT THE DEFENDANT IS GUILTY OF MURDER BEYOND A REASONABLE DOUBT.

The gist of the defendant's last proposition is that this Court should reverse and dismiss this judgment because the jury believed the prosecution's witnesses instead of his. That has never been the standard of review used by this Court.

In the entire 12 pages of argument in support of his last proposition, the defendant did not once cite to this court a single statue or case in support of his argument. Consequently, he has waived this proposition on appeal, and the State urges this Court to treat it as waived. Wolfenbarger v. State, 710 P.2d 114, 116 (Okl.Cr.1985), cert. denied, 476 U.S. 1182 (1986); Conway v. State, 483 P.2d 350, 352 (Okl.Cr.1971). Should this Court disagree, however, the State will address the points the defendant raised.

The standard of review used by this Court is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). This standard was adopted by this Court in Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985).

Essentially, the defendant complains that the jury believed the prosecution and not him. This Court has held that when there is conflicting evidence, it is for the jury to resolve those conflicts, determining for themselves the weight and credibility of the witness. Johnson v. State, 761 P.2d 484, 491 (Okl.Cr.1988); Washington v. State, 525 P.2d 1378, 1380 (Okl.Cr.1974).

The defendant first believes his conviction should be dismissed because the prosecution did not prove a contact lens found on the victim's cheek was hers. Later, he complains the prosecution did not prove Sandra Allen did not receive an unusual telephone call at work; that the hammer he hid in the attic was not the murder weapon; and that blood spatter on his clothing did not match blood spatter produced in tests. The State was not required to prove any of those things.

The information charging the defendant with murder alleged:

the said defendant, STEVE LEE ALLEN, in the County and State aforesaid, did unlawfully, willfully, and feloniously, without authority of law, and with malice aforethought, effect the death of one Sandra Jo Allen, a human being, and did then and there kill one Sandra Jo Allen, by means of beating her about the head, causing mortal wounds in the body of the said Sandra Jo Allen did languish and die, and did, then and there, commit the crime of MURDER IN THE FIRST DEGREE ....

(O.R. 1). Nowhere is there alleged that he beat her with the hammer, causing a contact lens to fall on her cheek and producing blood spatter in a manner consistent with the blood found on his clothing. These are all pieces of evidence the prosecution used to reach the final result; not methods of committing the crime the prosecution was required to prove beyond a reasonable doubt.

Despite this, the State will address each one. The defendant first contends he proved the contact lens found on the victim's cheek was not hers. Yet the victim's own optometrist, Roger Burch, testified he performed tests on the contact lens, and found it to be consistent both in form and strength with one he had prescribed to the victim a few months earlier. He also testified the lens had been dried out, was brittle and appeared to have been saturated with blood (7/30 Tr. 150-61). These things could help explain the different readings made by other people who read the lens. Here, the jury was presented with conflicting evidence. They obviously chose to believe the victim's own optometrist instead of other people. Additionally, nurse Diane Horsman testified that, although she retrieved two contact lenses and thought she handed them to someone nearby, she was not certain the transfer was completed. This is not a sign of incompetence, as the defendant would imply, but rather a truthful assessment of a situation where her main concern was Sandra Allen's life, not her contact lenses (8/2 Tr. 259-63). Likewise, although Edward Conley thought he carried two lenses to another location, he could not be certain (8/2 Tr. 265).

Concerning the strange telephone call at work, the defendant asserts on appeal she thought the call strange because the caller referred to her as "Sandy," the name used only by her co-workers, instead of "Sandra." Yet the defendant admitted on the stand that he himself had call her that, probably asking for her by that name on occasion when he telephoned her at work (8/1 Tr. 155-56). This phone call proves -- and disproves -- nothing.

The blood spatter testimony falls in the same category as the discrepancy between witnesses concerning the strength of the contact lens. The defendant contends here the jury was mistaken because they believed the prosecution's experts instead of his. That is not the standard used in the past, and the defendant has given this Court no reason to adopt it now.

Taken in the light most favorable to the State, evidence shows the hammer was used. Although it did not leave the pattern normally associated with such an instrument, the State's expert testified he could not eliminate the hammer as the murder weapon (7/23 Tr. 264-65, 285-86). Even his own expert admitted how the hammer was used could be a factor in the kind of marks it would leave. (8/2 Tr. 92). In any case, as discussed above and as the information alleges, the prosecution did not have to prove beyond a reasonable doubt that particular hammer was used to kill Sandra Jo Allen; it did have to prove beyond a reasonable doubt the defendant committed the crime. In the light most favorable to the State, it did.

The defendant's allegations concerning the lack of a motive do not take into consideration all the evidence surrounding this point. The defendant focuses on the fact that the physical relationship between the two was over. Even believing it was, their "mental affair" was far from over, as the dozens of notes taken out of the electronic mail system show; the defendant even sent her a birthday note and signed it with the word "love." (7/23 Tr. 153). This relationship, combined with the defendant's dissatisfaction with the sexual relationship in his marriage (7/23 Tr. 102-03, 201f), provide strong evidence of motive. These past acts are relevant to show that motive. 12 O.S.1981, § 2404(B); See Cook v. State, 704 P.2d 86, 88 (Okl.Cr.1985).

It is not simply the sexual relationship with Ms. Aubrey that is relevant in establishing motive. It is also the defendant's sexual relationship -- or lack thereof -- with his own wife. He may have ceased for the time being his physical relationship with Debbe Aubrey; but he was obviously taking great pains to keep in touch with her by other means, commenting how he wished he could talk to her over the weekend or go into the store and see her when he saw her car outside. Additionally, the State points out evidence that the physical relationship was over came form the defendant and Ms. Aubrey themselves, and the jury was entitled to give that portion of the testimony whatever weight they felt it deserved.

Intent need not be proved by showing he defendant planned and plotted to kill his wife for [w]eeks or months. It could also be proved by showing that this man, who had a violent temper and who had been known to strike out in anger (8/7 Tr. 17-19, 21-23, 26-28), lived in what he admitted was a less than perfect relationship with his wife; had sex with another woman; and remained close to the other woman, buying her "friendship" cards at lunch and signing a note with "love." ⁹

There is no question the defendant was at the house for some period of time before he called police. The evidence, taken together with other information about his relationships, provided a strong motive for him to be present when she was murdered.

The defendant's final proposition has no merit.

CONCLUSION

The defendant's contentions have been answered by both argument and citations of authority. The State contends that no error occurred that would require reversal or modification and, therefore, respectfully requests that the Judgment and Sentence be affirmed.

Respectfully submitted,

SUSAN BRIMER LOVING
ATTORNEY GENERAL OF OKLAHOMA

DAN CONNALLY
ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR APPELLEE

¹The defendant cites comments by the court in an in-camera hearing to show the court was biased. These are of no significance, since they could not possibly have had an effect on the jury, the reason this court has said a judge should use caution so as not to show bias. back

²Indeed, the question concerning the defendant's right-handedness actually bolstered his case. As it tended to support Mr. Laber's testimony that, when the defendant stood in the same position and struck the counter top, the hammer landed only a few inches from the original mark (8/6 Tr. 22). back

³The defendant in his brief cites examples of people who expressed opinions that the defendant is guilty. That proves nothing. The State can cite several examples of responses where people believed he did not do it. See e.g., response #35 on p.3 of "verbatim comments" in Exhibit "B" to the defendants brief in 0-91-526 ("What everybody else has heard. I kind of think he didn't do it. It's going to court. I don't think it's any of your business"); #104 ("Everything I've read or heard sound like they've already pronounced him guilty. I can't give any specifics at this time. I know him and I don't think it's fair that they've already pronounced him guilty before trial. That's all I have to say."); #121 ("I've heard that they, well, all I can say is they think he did it. All I can say is he's innocent until proven guilty. That's for the judge and jury to find out."). back

⁴ Nor are the newspaper articles attached to the motion of any use to him. To begin with, the affiants did not base their conclusions concerning the defendant's ability to get a fair trial on the newspaper articles; not one of the affiants makes reference to adverse pre-trial publicity in his or her affidavit, and each affiant specifically says at the conclusion of his affidavit, "Further, affiant saith not." Therefore, nothing connects the affidavits to the newspaper articles as basis for his motion. Therefore, the trial court was within his rights to deny the motion. See Shultz v. State, 811 P.2d 1322, 1329 (Okl.Cr.1991) (testimony of newspaper editor without required affidavits does not meet the threshold requirement for a change of venue). back

⁵The defendant leaps to three assumptions as a result of this newspaper picture. As mentioned above, he has shown this Court nothing other than the testimony of a bailiff that the jurors ignored the court's admonitions about publicity, completely ignoring other explanations such as a casual mention by a friend of family member about the existence of the picture. It does not show the media was so aggressive that it was adversarial. He cites the picture in the paper taken through the courtroom door in which the defendant demonstrated to the jury how he shook his wife. As the picture clearly shows the jury watching this very same event, the State absolutely does not know how it could be any clearer that this in and of itself did not expose the jury to something it should not have see. Third, he has presented absolutely no evidence to show that jurors were concerned for their safety. As the testimony of the bailiff makes clear, jurors were not concerned for their own safety so much as the safety of their possessions, left unprotected while they were sequestered. The best he could get out of the bailiff concerning safety for family members was "I think there was some, a little bit" (8/12 Tr. 44 line 7). back

⁶See Fed.R.Crim.P. (16(a) (1) (D) : "upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the government ..., and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial." back

⁷The defendant in his brief notes that Mr. Vanaken, at age 79, was eligible for exemption but did not take it. He "can only infer" from this "that Juror Vanaken wanted on to [sic] the jury for the purpose of seeing the Appellant given the death penalty." Brief of defendant at 43. With all due respect, the State finds no basis for this wild assumption. The defendant admits in his brief that Mr. Vanaken had been a businessman and civic leader in Bartlesville for several years; yet it escapes him that Mr. Vanaken might want on the jury not because he wanted to see the defendant put to death, but because old habits die hard and he wanted to continue in some small measure his service to the community. At any rate, Mr. Vanaken's reasons for not refusing to serve are his own, and the defendant has provided nothing in the record to support his fanciful claims. back

^⁸ The Prosecutor offered other things, but these offers were made outside the presence of the jury, and thus could have no effect on the jury. See 8/2 Tr. 30-49. back

⁹The note "signed with love" is included in State's Exhibit 60, the electronic mail letters retrieved from the company computer, at page 74, a note dated 6-7-90 (the page numbers are not in order). Note also the language above the "signed with love" closing: "Here's hoping that today is a special day for you and that it will be the first of many more special days. I hope to do my part. Happy Birthday." As always, the State trusts the Court will examine all the evidence, not just the evidence pointed out by the State or the defendant; still the State wishes to point out a few other notes showing the relationship was not over, including page 76, a note dated 6-7 which proposes a lunch plan that includes "a beautiful Chineese [sic] dinner overlooking a peaceful lake under sunny clouds. 6. We take a hour nap. 7. We head back to town. (Well, we may have to reverse the order of #6 and #7)"; note from Debbe dated 6-11 on page 193, and the defendant's response, also dated 6-11 on page 80; note of 5-1 on page 42 ("I going [sic] to try hard to do what you feel needs to be done but I am going to need your help. ... A happy Debbe will make Steve feel lots better."); note dated 5-1 at page 43; note dated 5-3 at page 44; note dated 6-4 at page 71 ("Yesterday she worked and I finally broke down and cried and cried. I tried to call but you were out."). back

Cases Cited

Allen v. District Court, 803 P.2d 1164 (Okl.Cr.1990)
Arnold v. State , 803 P.2d 1145 (Okl.Cr.1990)
Boltz v. State, 806 P.2d 1117 (Okl.Cr.1991), cert. denied, __ U.S.__, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991)
Bristow v. State, 644 P.2d 118 (Okl.Cr.1982)
Browder v. State, 16 Okl.Cr. 43, 180 P. 571 (1919)
Brown v. State, 304 P.2d 361 (Okl.Cr.1957)
Carrick v. State, 49 Okl.Cr. 65, 292 P. 1053 (1930)
Coleman v. State, 693 P.2d 4 (Okl.Cr.1984)
Conway v. State, 483 P.2d 350 (Okl.Cr.1971)
Cook v. State, 704 P.2d 86 (Okl.Cr.1985)
Cooper v. State, 671 P2d. 1168 (Okl.Cr.1983)
Fisher v. State, 761 P.2d 900 (Okl.Cr.1988)
Fox v. State, 779 P2d. 562 (Okl.Cr.1989), cert. denied, 494 U.S. 1060 (1990)
Frye v. State, 606 P.2d 599 (Okl.Cr.1980)
Hammons v. State, 560 P.2d 1024 (Okl.Cr.1977)
Harrall v. State, 674 P.2d 581 (Okl.Cr.1984)
Henderson v. State, 385 P.2d 930 (Okl.Cr.1963)
Howard v. Territory, 15 Okl.Cr.199, 79 P. 773 (1905)
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
Johnson v. State, 761 P.2d 484 (Okl.Cr.1988)
Kinsey V. State, 798 P.2d 630 (Okl.Cr.1990)
Kiser v. State, 782 P.2d 405 (Okl.Cr.1989)
Koonce v. State, 696 P.2d 501 (Okl.Cr.1985)
Lacy v. State, 33 Okl.Cr.161, 242 P. 296 (1926)
Marutzky v. State, 514 P.2d 430 (Okl.Cr.1973)
McBrain v. State, 763 P.2d 121 (Okl.Cr. 1988)
McGowan v. State, 380 P.2d 274 (Okl.Cr.1963)
Moore v. State, 788 P.2d 387 (Okl.Cr.1990), cert. denied, __U.S.__, 111 S.Ct. 227, 112 L.Ed.2d 182 (1990)
Newsted v. State, 720 P.2d 734 (Okl.Cr.1986), cert. denied, 479 U.S. 995 (1986)
Plumlee v. State, 361 P.2d 223 (Okl.Cr.1961)
Porter v. State, 361 P.2d 695 (Okl.Cr.1961)
Powell v. State, 478 P.2d 923 (Okl.Cr.1970)
Price v. State, 782 P.2d 143 (Okl.Cr.1989)
Richmond v. State, 456 P.2d 897 (Okl.Cr.1969)
Riggle v. State, 585 P.2d 1382 (Okl.Cr.1978)
Robinson v. State, 677 P.2d 1080 (Okl.Cr.1984), cert. denied, 467 U.S. 1246 (1984)
Rojem v. State, 753 P.2d 359 (Okl.Cr.1988), cert. denied, 488 U.S. 900 (1988)
Rushing v. State, 676 P.2d 842 (Okl.Cr.1984)
Salyers v. State, 755 P.2d 97 (Okl.Cr.1988)
Schmitt v. State, 57 Okl.Cr.102, 47 P.2d 199 (1935)
Scribner v. State, 3 Okl.Cr. 601, 108 P. 422 (1910)
Sellers v. State, 809 P.2d 676 (Okl.Cr.1991), cert. denied, __U.S.__, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991)
Shultz v. State, 811 P.2d 1322 (Okl.Cr.1991)
Smith v. State, 462 P.2d 328 (Okl.Cr.1969)
Spencer v. State, 795 P.2d 1075 (Okl.Cr.1990)
Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985)
Stanley v. State, 94 Okl.Cr. 122, 203 P.2d 738 (1951)
Teegarden v. State, 563 P.2d 660 (Okl.Cr.1977)
United States v. Dennison, 937 F.2d 559 (10th Cir. 1991)
United States v. Iglesias, 881 F.2d 1519 (9th Cir. 1989), cert. denied, 493 U.S. 1088 (1990)
Washington v. State, 525 P.2d 1378 (Okl.Cr.1974)
Wilkett v. State, 753 P.2d 383 (Okl.Cr.1988)
Wing v. State, 490 P.2d 1376 (Okl.Cr.1971), cert. denied, 406 U.S. 919
Wininegar v. State, 97 Okl.Cr. 64 257 P.2d 526 (1954)
Wolfenbarger v. State, 710 P.2d 114 (Okl.Cr.1985), cert. denied, 476 U.S. 1182 (1986)
Wooldridge v. State, 659 P.2d 943 (Okl.Cr.1983)

Statutes Cited

12 O.S.1981, § 577
12 O.S.1981, § 2401
12 O.S.1981, § 2402
12 O.S.1981 § 2403
12 O.S.1981 § 2404 (B)
12 O.S.1991 § 3001.1
12 O.S.Supp. 1982, § 701.7 back

LH 2000