Long v. State

*179CHAPEL, Judge,

dissenting.

Late on the night of April 7, 1987, following the horrifying murders of Sheryl Graber and her young son, Andy, three law enforcement officials questioned Long about his involvement in these tragic events. Detective Sturm, who was conducting the interrogation, and Detective Lauderdale, who was present during the interrogation, testified at preliminary hearing and again at trial about what transpired. After Mr. Sturm obtained some background information from Long, he began questioning Long about the murders. At this point, in the words of Detective Sturm, Long said something to the effect of, “I don’t want to ... Why are you asking those questions?” P.Hrg.Tr. 123-24. In response to being asked whether he wanted to talk to them, Detective Lauderdale recalled Long as having said, “I really would rather not_” P.Hrg.Tr. 145. On more than two occasions, Long asked why Mr. Sturm was asking those questions, and why it was so important that he talk to the detectives.

Long testified at the August 19, 1987, hearing on his motion to suppress the statements which he had given during the April 7, 1987, interrogation. During that hearing, defense counsel asked Long why he had continued to ask the detectives questions rather than keep silent:

Q. All right. At any point during this interrogation, in response to questions by Mr. Sturm, did you reply, and I’m going to paraphrase here, ‘I really don’t want to answer this question. Why do you want to know?’
A. Yes.
Q. Why did you make that response?
A. Because I wanted to stop, and I didn’t understand why they were asking me so many questions if they was [sic] trying to help me.
Q. You were under the impression they were trying to help you?
A. Yes.
Q. Why is that?
A. I thought Mr. Sturm was an attorney for my side.
⅜ ⅝ ⅜ ⅜ ⅜ ⅝
Q. Now, you stated that, I believe you have, that you wanted to stop?
A. Yes.
Q. Why did you not tell them that you wanted to stop?
A. Because Mr. Sturm wanted me to keep going and I couldn’t figure out why he was asking so many questions.
Q. Any other reason?
A. No.
Q. When you told them that you didn’t really want to talk and you asked him, ‘Why do you want to know?’ what was Mr. Sturm’s response to that question?
A. He said, ‘Why don’t you want to answer these questions? Do you have something to hide?’
Q. Did he say anything else to you? ******
A. I believe he said he wanted to hear my side of the story.
******
Q. All right. Did you tell Mr. Sturm that you — other than the statement that we’ve already talked about, did you tell Mr. Sturm that you didn’t want to continue talking?
A. I believe I did; yes.
Q. How many times did you tell him? A. I think two.
Q. Why did you not stop talking?
A. Because Mr. Sturm wanted me to keep going, and I thought that if I stopped I might have made him angry and brought trouble on myself.

M.Tr. 31-35.

In its initial opinion, the majority reviewed this testimony and found that Long did not clearly assert and thus did not effectively invoke his Fifth Amendment privilege. On rehearing, the Court recognizes Long sufficiently invoked his right to silence, but concludes he then waived it by asking “Why do you want to know?” According to the majority, Long’s question “initiated further conversation with the police and indicated a willingness and desire for further discussion about the investigation_” Majority at 172. I agree that Long invoked his right to silence, *180but cannot conclude that his question “Why-do you want to know?” subsequently waived it. I would therefore hold that Long’s April 7,1987, statements to police were improperly admitted against him.

An accused’s own confession has a “profound impact on the jury ...” and “is probably the most probative and damaging evidence that can be admitted against him...." Arizona v. Fulminante, 499 U.S. 279, 294-96, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991). While Long’s confession was unconstitutionally obtained and thus improperly admitted against him at trial, I find that the overwhelming evidence of guilt rendered its effect on his convictions harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Compare Booker v. State, 851 P.2d 544, 547 (Okl.Cr.1993) (admission of confession obtained in violation of Fifth Amendment right to counsel held not harmless).

I cannot, however, reach the same conclusion with regard to the sentence of death Long received for the murder of Andy Gra-ber. In his statement to the police, Long told Detective Sturm that he shot Andy Gra-ber “so there would not be any witnesses.” Tr. II 607. Long’s improperly obtained statement was presented during second stage proceedings as the only supporting evidence of the aggravating circumstance that the murder was committed “to avoid lawful arrest or prosecution.” The prosecutor emphasized to the jury that this evidence came from Long’s own lips.

The fact that Long killed to avoid lawful arrest or prosecution was the only aggravating circumstance of Andy Graber’s murder which the jury found. I must conclude that Long’s jury relied solely on his inadmissible statements when determining the existence of this aggravator. Accordingly, I would reverse Long’s sentence of death for the murder of Andy Graber.

For different reasons, I would also reverse Long’s sentence of death for the murder of Sheryl Graber. In my opinion, the jury could have been under the influence of passion and prejudice when it imposed the death sentence for her murder. See 21 O.S.Supp. 1985, § 701.13(C)(1) and (2). Specifically, I find that Long’s improperly admitted responses to a pretrial psychological examination, coupled with the first stage introduction of human flesh and the prosecutor’s reference to the Bible during second stage closing argument, could have formed the basis for the jury’s determination that the aggravating circumstances outweighed the mitigating evidence.

During the first stage of the trial, Mr. Stephen Lee testified at length concerning Long’s written responses to questions posed during a psychological examination conducted to determine Long’s competency to stand trial. Particularly damaging was the following exchange, during the first stage of trial, between the prosecution and Mr. Lee:

Q. On question 71, Mr. Lee, T think a great many people exaggerate their misfortunes in order to gain the sympathy and help of others.’ Question, 71, how did Mr. Long answer that question?
A. Number 71 was answered true.
Q. Number 93, T think most people would he to get ahead.’ How did Mr. Long answer 93?
A. True.
Q. Question 97, ‘At times I have the strong urge to do something harmful or shocking.’ How did Mr. Long answer that question?
A. True.
Q. Question 277, ‘At times I’ve been so entertained by the cleverness of a crook that I hoped that he would get by with it.’ Did Mr. Long answer that question true or false?
A. True.
Q. Question 298, ‘If several people find themselves in trouble the best thing for them to do is to agree upon a story and stick to it.’ Did Mr. Long answer that question true of false?
A. True.
Q. Question 316, ‘I think nearly anyone would tell a lie to keep out of trouble.’
A. He answered true.

Tr. II 779-80.

This is precisely the type of testimony that 22 O.S.Supp.1985, § 1175.4(D) was designed *181to prevent. Absolutely disregarding the clear language of Section 1175.4(D), the prosecutor used Long’s own statements, made without benefit of counsel, to portray him as a fundamentally bad person and a liar during both phases of trial. While defense counsel did in fact cross-examine Mr. Lee, I do not agree with the majority that doing so somehow waived Long’s Fifth and Sixth Amendment rights. See Majority at 174. In my opinion, Long’s own words, as presented through Mr. Lee’s testimony, could have formed the basis for the jury’s finding that the mitigating evidence presented during second stage proceedings was outweighed by the “heinous, atrocious and cruel” and “great risk of death to more than one person” aggravating circumstances found to support Sheryl Graber’s murder.

During oral argument, the State agreed that the mitigation evidence presented in this case was overwhelming. In fact, the jury refused to find the existence of the “continuing threat” aggravator for either murder. Although Long’s clearly inadmissible answers to the pretrial psychological examination were neither reiterated nor specifically reintroduced during the sentencing phase, I believe that, having come from Long’s own lips, those answers had a lasting and “profound impact on the jury....” Fulminante, supra, 499 U.S. at 296, 111 S.Ct. at 1257.

Further, the pieces of human flesh which were admitted over defense counsel’s objection during first stage proceedings were not only grotesque and inflammatory, but were completely unnecessary to prove the prosecution’s case. Finally, the prosecutor’s quotation from the Bible, prejudicial in and of itself, was all the more influential because it was the last message the jury heard before retiring to deliberate over Long’s sentence. I simply cannot conclude that these errors, coupled with Stephen Lee’s testimony, did not influence the jury’s decision to impose the death sentence for Sheryl Graber’s murder.

There was never an issue in this ease as to whether Long committed murder. The gravely important question was whether he should be sentenced to death for having done so. After seeing pieces of flesh that had been gouged from Sheryl Graber’s body, hearing testimony which included clearly inadmissible and highly prejudicial statements that came from Long’s own lips, and being read to from the Bible, the jury in this case concluded that he should. While the jury might have reached this conclusion even without the improperly admitted evidence and prosecutorial comment, it is impossible to say so beyond a reasonable doubt. Id. at 300-04, 111 S.Ct. at 1260-61. Accordingly, I would reverse Long’s sentences of death, impose a life sentence for the murder of Andy Graber, and remand the conviction for Sheryl Graber’s murder to the trial court with instructions to resentence without consideration of the improperly admitted evidence. See 21 O.S.Supp.1985, § 701.13(E)(2).