Concur in Part/Dissent in Part
{1 I concur in affirming the first degree murder convictions in Counts I and II and in the reversal and modification of the death sentence to life without the possibility of parole in Count I. However, I dissent to the reversal of the death sentence and remand for resentencing in Count IL.
*10082 In Proposition II, the claim of error is stated as the trial court abused its discretion by "refusing to give defense counsel any opportunity to question or attempt to rehabilitate prospective jurors who gave equivocal, confusing or inconsistent answers regarding their willingness and ability to consider the death penalty." The opinion resolves this claim by stating:
This Court concludes that the trial court abused its discretion by refusing to allow defense counsel any opportunity to question or attempt to rehabilitate Jurors A.A., B.S., RL., LD., SS., S.G., and J.V. because these prospective jurors gave equivocal, confusing and inconsistent responses regarding their ability and willingness to consider the death penalty. Furthermore, defense counsel was denied this opportunity regarding Jurors S.S., S.G., and J.V., even though the State was allowed to question these jurors. This Court finds that this violated due process and Miller's 8th Amendment right to a reliable sentencing. Hence Miller is entitled to sentencing relief on his Proposition II claim.
13 No legal authority is cited supporting this conclusion, because there is none. There is no constitutional or statutory mandate that defense counsel be given the opportunity to attempt to rehabilitate jurors excused for their inability to impose the death penalty.
T4 While paying lip service to our well established appellate review of jury selection issues, this opinion deliberately fails to apply that law. Prior to this opinion, this Court has consistently held that the manner and extent of voir dire are within the trial court's discretion. Coddington v. State, 2011 OK CR 17, ¶5, 254 P.3d 684, 694. See also Postelle v. State, 2011 OK CR 30, ¶ 43, 267 P.3d 114, 134; Grant v. State, 2009 OK CR 11, ¶24, 205 P.3d 1, 13; Patton v. State, 1998 OK CR 66, 19, 973 P.2d 270, 280. The trial court's decision to disqualify a prospective juror for cause will not be overturned unless an abuse of discretion is shown. Mitchell v. State, 2010 OK CR 14, ¶19, 235 P.3d 640, 647-648; Bernay v. State, 1999 OK CR 37, ¶10, 989 P.2d 998, 1005.
1 5 "Where the trial court has appropriately questioned prospective jurors regarding their eligibility to serve on a capital jury, it is not error to deny defense counsel a chance to rehabilitate jurors excused for inability to impose the death penalty." Coddington, 2011 OK CR 17, ¶10, 254 P.3d at 695; Liftlejohn v. State, 2004 OK CR 6, ¶49, 85 P.3d 287, 301-02. See also Postelle, 2011 OK CR 30, ¶51, 267 P.3d at 135-136; Mitchell, 2010 OK CR 14, ¶31, 285 P.3d at 649. It has been this Court's opinion that "[blecause the trial court is in a position to assess each juror's response to questions, including non-verbal responses which may not appear in a cold transcript, we defer to the trial court's personal observations." Coddington, 2011 OK CR 17, ¶5, 254 P.3d at 694 citing Harmon v. State, 2011 OK CR 6, ¶14, 248 P.3d 918, 929. Because we might find the record confusing is not grounds for finding an abuse of disceretion. "Despite the lack of clarity in the written record, there are situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Jones v. State, 2009 OK CR 1, ¶14, 201 P.3d 869, 877. "This Court will look to the entirety of the juror's voir dire examination to determine if the trial court properly excused the juror for cause. As the trial court personally observes the jurors and their responses, this Court will not disturb its decision absent an abuse of discretion." Id. See also DeRosa v. State, 2004 OK CR 19, ¶40 n. 82, 89 P.3d 1124, 1141 n. 82 ("[the Wainwright Court recognized the difficulty of assessing jurors like Stanfill, noting that 'many veniremen simply cannot be asked enough questions to reach the point where their bias has been made 'unmistakeably clear" 469 U.S. at 424-25, 105 S.Ct. at 852. The Court explained that this is the reason 'why deference must be paid to the trial judge who sees and hears the juror' Id. at 426, 105 S.Ct. at 858"). "Because of the obvious difficulty in reviewing juror candidness, we must rely and place great weight upon the trial court's opinion of the jurors." Mitchell, 2010 OK CR 14, ¶13, 235 P.3d at 647-648.
T6 In the present case, the trial court conducted a very thorough voir dire, asking *1009numerous appropriate questions of prospective jurors regarding their eligibility to serve on a capital jury. The trial judge, who directly observed and evaluated these potential jurors and their responses, dismissed certain jurors for cause despite denying the defense further attempts at rehabilitation. I find no abuse of the trial court's discretion.
I7 Even if I were to find error, it would be subject to a harmless error analysis. In Robinson v. State, 2011 OK CR 15, ¶4, 255 P.3d 425. 428 this Court recognized "[t}here is a strong presumption that errors which occur during trial are subject to harmless error analysis, as long as a defendant is represented by counsel and is tried by an impartial judge. Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 LEd.2d 35 (1999); Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986)." We further stated:
The United States Supreme Court has restricted use of structural error, with its requirement of automatic reversal, to "a limited class of cases." Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 1549-50, 187 L.Ed.2d 718 (1997). These errors appear to have in common the violation of a right granted by the Constitution, rather than a violation of due process by failure to afford a right granted by state statute. Among these are a faulty jury instruction on reasonable doubt, Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 2083, 124 LEd.2d 182 (1998); intentional racial discrimination in selection of grand jurors, Vasquez v. Hillery, 474 U.S. 254, 2683-64, 106 S.Ct. 617, 623, 88 L.Ed.2d 598 (1986); denial of the right to a public trial, Waller v. Georgia, 467 U.S. 39, 49, 104 S.Ct. 2210, 2217, 81 L.Ed.2d 31 (1984); denial of the right to self-representation, McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984); improper exelusion of qualified capital jurors, Davis v. Georgiq, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 889 (1976) (per curiam ); exposure to improper publicity which wholly denies the defendant an impartial jury, Sheppard v. Maxwell, 884 U.S. 333, 351-852, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966); failure to afford a defendant the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 797, 9 L.Ed.2d 799 (1968); and the lack of an impartial trial judge, Tumey v. Oho, 278 U.S. 510, 535, 47 S.Ct. 487, 445, 71 L.Ed. 749(1927). >
2011 OK CR 15, 1 4, 255 P.3d at 428.
T8 The wrongful exclusion of an eligible juror in a capital case, based solely upon that juror's opposition to the death penalty, otherwise known as a Witherspoon error, was added to the above list by Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2057, 95 L.Ed.2d 622 (1987). In DeRosa, 2004 OK CR 19, 136 n. 78, 89 P.3d at 1140 n. 78 this Court recognized that a Witherspoon error is not subject to a harmless error analysis.
T9 In the present case, the opinion relies on Witherspoon but does not find an actual Witherspoon error. Therefore, any error in the manner in which the trial court conducted voir dire and exeused potential jurors for cause is subject to a harmless error analysis. Under a harmless error analysis, a reviewing court must determine whether the error was harmless beyond a reasonable doubt. Bartell v. State, 1994 OK CR 59, ¶¶13-14, 881 P.2d 92, 97 citing Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967).
T 10 Here, the trial court's failure to allow defense counsel the opportunity to attempt to rehabilitate potential jurors was harmless beyond a reasonable doubt. The trial court treated the State and the defense even hand-edly, denying both parties an opportunity for additional questioning of potential jurors who were firm in their responses to the trial court about their ability to consider all three punishment options. The prospective jurors excused for cause were ultimately unequivocal in their stated ability to consider all three punishment options. There has been no allegation that the jury that actually decided Appellant's punishment was not impartial. As the opportunity to attempt to rehabilitate potential jurors is not a constitutional issue, any claim of jury partiality must focus on the jurors who ultimately sat. See Rojem v. State, 2006 OK CR 7, ¶36, 130 P.3d 287, 295 (since the loss of peremptory challenges is "not of constitutional dimension", "[alny *1010claim of jury partiality must focus on the jurors who ultimately sat"). Nothing in the record suggests that Appellant's jury was anything less than impartial The trial court's failure to allow attempts at rehabilitation of prospective jurors was harmless beyond a reasonable doubt.
{11 In Proposition XVIII, the opinion strikes down the great risk of death aggravator. As to Count I, the issue is moot as the sentence in that count has been modified to life without parole. As to Count II, the opinion finds the evidence insufficient to support the aggravator, stating that the shooting of Mr. Thurman at the dirt pit, with Ms. Bowles alive and present, did not put Bowles in danger of being injured or killed. As I stated in my separate writing to Hanson, objecting to the invalidation of the aggravator in that case:
The opinion uses the methodology of parsing the events into a time and space justification for invalidating the aggravator. This parsing disregards our case law that victims killed in the same manner, at the same place, and essentially the same time, presents "a classic example of the 'great risk of death' aggravating cireumstance." Dodd v. State, 2004 OK CR 31, ¶¶106-107, 100 P.3d 1017, 1047-48. See also, Eizember v. State, 2007 OK CR 29, ¶123, 164 P.3d 208, 239.
The argument made by Appellant in this case could be made by any defendant charged with multiple homicides, ie. no one was at risk when he killed the second, third or more victims because the first victim or subsequent victims were already dead. This is a factual decision to be made by the trier of fact. The jury in this case was properly instructed and there are facts in evidence to support their verdict. Therefore, we should honor that principle of law and their application of it in their decision and affirm the great risk of death aggravator.
2009 OK CR 13, TT 2-3, 206 P.3d 1020, 1086 (Lumpkin, J. concur in part/dissent in part).
112 In the present case, I find the evidence supported the aggravator as Appellant's act of shooting Thurman put Bowles at a great risk of death. Thus there is factual evidence to support the jury's verdict and under our case law we should uphold that decision. I find the aggravator valid and would remove the issue from any cumulative error discussion.
1 13 In Proposition XI, the opinion reviews the prosecutor's "freebie argument" for plain error but fails to set forth and follow the established standard of review. See Hogan v. State, 2006 OK CR 19, ¶38, 139 P.3d 907, 923. Applying a plain error analysis, I find no error in the prosecutor's comment. The argument was merely a request for the separate punishment of death, based upon the facts in this case, even taking into account Appellant's federal sentence. There was nothing misleading about the argument. That the argument may have been "emotionally powerful" is no reason for finding it improper. Further, the defense first raised the issue of the prior sentences and the State had a right to respond in an appropriate manner, which it did. The opinion's determination that the comment was error is based upon unsupported assumptions. I find no error in the argument and no reason for it to be considered in a cumulative error claim.
14 Similarly, I disagree with the conclusion in Proposition XXIII, that defense counsel's failure to object to the "freebie argument" was deficient performance. The comment was based on the evidence and any objection would have been overruled. Trial counsel will not be found ineffective for failing to raise objections which would have been overruled. Eizember v. State, 2007 OK CR 29, ¶155, 164 P.3d 208, 244.
T 15 Finally, I recede from participation in the numerous comments in this opinion which are mere dicta, speculation or assumptions not necessary to the adjudication of the issues presented in Appellant's claims of error.