Glossip v. State

CHAPEL, Judge,

Dissenting:

4 1 I dissent from today's decision because I disagree with the majority's treatment of Proposition III and the result reached on this claim. I also write to note that although I concur in the conclusion reached on Proposition I, I believe the majority overstates the strength of the accomplice corroboration evidence in this case, by confusing the narrow *165analysis of this question with Glossip's overall sufficiency of the evidence claim.

T2 Regarding Proposition III, I find that the trial court's decision, over defense objection, to allow the State to post summaries of witness testimony throughout the courtroom and to leave these demonstrative exhibits visible to jurors and later witnesses, from the time they were first crafted until the conclusion of the first stage of Clossip's trial, was an abuse of discretion. I also find that the trial court's denial of defense counsel's clear and reasonable request to allow these exhibits to be either preserved intact or digitally photographed, for review by this Court, was likewise an abuse of discretion. The trial court's actions in this regard were totally unjustified and prejudiced Glossip's right to a fair trial and an informed consideration of his claims on appeal.

1 3 Two things occurred before the presentation of any evidence at Glossip's trial that seem noteworthy in light of his current claim. First, a jury panel venire member asked, during voir dire, if jurors would be allowed to take notes.1 The trial court responded with a lengthy explanation of the pitfalls of note-taking, particularly for those who did not do it regularly, and explained that witnesses would have to rely upon their "collective memories.2 Hence juror note-taking was not permitted.3

T4 The second noteworthy occurrence involved the rule of sequestration of witnesses. Gossip's counsel properly invoked "the rule" at the beginning of trial and also requested that Kenneth Van Treese, the brother of the victim, not be allowed to remain in the courtroom during the testimony of Donna Van Treese, the victim's wife. The trial court recognized that the rule had been invoked and even acceded to counsel's request regarding Kenneth Van Treese, over State objection, out of "an abundance of caution." 4 Unfortunately, the trial court's recognition that note-taking can sometimes be distracting and create problems during a trial, as well as the court's careful attention to respecting the rule of sequestration, did not remain consistent throughout Glossip's trial.

T5 During the testimony of the State's first witness, Donna Van Treese, the prosecutor got out an easel and started writing on *166a large paper pad placed upon it.5 Although the record does not establish exactly what was written, the prosecutor's comments indicate that she recorded certain specific picces of testimony on the pad, such as the time Gossip told Mrs. Van Treese that he had last seen her husband and when this statement was made. Defense counsel did not object.6

T6 During Mrs. Van Treese's testimony the next day, the prosecutor again began writing on the pad, summarizing certain bits of testimony.7 In particular, she recorded Mrs. Van Treese's testimony about Glossip telling her that he had seen her husband on the morning of January 7, 1997.8 Later that day, during the testimony of ossip's live-in girlfriend, D-Anna Wood, the prosecutor likewise recorded what Glossip told her after Justin Sneed woke them up during the "early morning hours" of January 7, namely, that "two drunks broke a window" and that Glos-sip told Sneed "to clean it up." 9

T7 At the end of the day, after the jury had been dismissed, defense counsel objected to the State being allowed to post, in the courtroom, the large pieces of paper containing the State's notes summarizing particular witness testimony after the testifying witness had been excused, because it placed unfair emphasis on the selected testimony.10 The State responded that it had a right to make demonstrative exhibits and suggested that it was Glossip's own fault that the exhibits were necessary.11 The trial court agreed and overruled the objection. The court did not specifically address defense counsel's objection to the posting of the exhibits or his "undue emphasis" complaint.12

Your Homor, we have a right to make a demonstrative exhibit. I have not and will not move to introduce those exhibits into evidence. This demonstrative exhibit is a running, continuing tally of the various spins that this Defendant has put on, you know, his version of the facts. It's his fault that there are so many of them, there are so many witnesses and people that he talked to.

*167T 8 During the testimony of Billye Hooper, who was the day clerk at the Oklahoma City Best Budget Inn, the prosecutor again began taking notes on the large pad of paper about numerous things Glossip said to her or in her presence: asking her to pay the hotel cable bill with her own money (so Van Treese would not find out it had been disconnected), that Van Treese got up early on the morning of January 7 and went to get breakfast and repair materials, that Barry Van Treese had rented Room 102 to a "couple of drunks," who had "busted out a window," and not to put that room on the housekeeping report, because Hossip and Sneed were going to clean it up themselves.13 When this testimony began the prosecutor addressed the court saying, "Your Honor, this may take me a minute, but I'm going to try and write all this up here." As the witness testified, the prosecutor would repeatedly summarize and restate what had just been said, in order to get the witness's agreement to the accuracy of the prosecutor's written summary of this same testimony.14

T9 During the testimony of the next witness, William Bender, who had managed the Tulsa Best Budget Inn, the prosecutor announced that she was going to start writing down things that Glossip had said to Bender on January 8, after the victim had been found and Glossip had been interviewed. As Bender testified the prosecutor summarized his testimony and got his assent to various quotations of things Clossip had said, as she wrote them down.15 In the middle of this note-taking process, the court interrupted and called the attorneys to the bench-apparently after the prosecutor wrote down something about Glossip telling Bender that he didn't kill the victim, but that he knew who did-and suggested that the prosecutor add a particular piece of information to her notes, "in the interest of fairness." 16 The prosecutor then apparently recorded that (Gossip said he did not tell the police who killed Van Treese because Glossip "was in fear for his life" and that ossip warned Bender that he should probably leave even the Tulsa motel, because it was about to be "brought down." 17

{10 This same prosecutor continued taking notes on the paper pad during the testimony of Jacquelyn Williams,18 Kayla Pursley,19 and Michael Pursley,20 as she *168questioned each one of them. During Michael Pursley's testimony, as the prosecutor attempted to confirm the accuracy of her notes-by repeating the testimony and asking Pursley to affirm what she had written-defense counsel objected that the prosecutor was "repeating and rehashing testimony that's already before the jury." The court overruled the objection without comment.

111 Officer Timothy Brown, who assisted in the search for Barry Van Treese and who discovered his body in Room 102, was examined by the other prosecutor. It is not clear whether this prosecutor himself wrote any notes, but after questioning Brown for approximately twenty transeript pages, he asked the first prosecutor to come up and take notes for him. The transcript indicates that this first prosecutor then took notes, while the examining prosecutor continued to question Brown regarding numerous statements made by Gossip and Brown's investigation of Van Treese's disappearance. It is sometimes apparent in the record that the note-taking prosecutor is memorializing testimony-such as when the examining prosecutor asks, "Can we get that, Ms. Smother-mon?"-but it is often impossible to tell how much or what exactly is being written down.21

112 Clifford Everhart, who did security work at the hotel and who participated in the search for Mr. Van Treese and was present when his body was discovered, was examined by the "note-taking prosecutor." The tran-seript indicates some specific occasions during this testimony that the prosecutor took notes summarizing what (Glossip had said to Everhart and when it was said.22 Once again, however, it remains entirely unclear, upon even a careful review of the transcript, whether this prosecutor wrote down other notes from Everhart's testimony, without verbally noting what she was doing.

T13 After all the first-stage evidence had been presented and the jury had been excused, Hossip's counsel noted his earlier objections "to what has been labeled as demonstrative exhibits, which are basically the sheets of paper that have certain writings on them and have been taped to various places in the courtroom." 23 Defense counsel noted that he had earlier requested that these exhibits be included as part of the original record and that the trial court had asked for some authority on this issue. Counsel then *169cited Anderson v. State,24 as being one of a number of cases establishing the defendant's duty to ensure that an adequate record is provided to the Court of Criminal Appeals, for the determination of claims on appeal. He added:

If these don't go, then they will not really have an idea of what our concern was in the record. If it's too bulky to do that, we are willing to take some digital photographs of each-first of all, as these things appear in the courtroom and of each of these items to submit if that's an aid to the court reporter or to the Court or the Court of Criminal Appeals. But we do renew that request at this time.

1 14 The note-taking prosecutor responded that the record was already clear regarding "what these demonstrative aids entail," because she had "made sure that I put into the record what was being written." The prosecutor noted that "using the same size paper, the same marker, the Defense has made five demonstrative aids of their own of similar ilk, that had been displayed various lengths of time to the jury." 25 She also noted that defense counsel was free to use the demonstrative aids during closing arguments, but that they would not be sent to the jury or included with the record. The prosecutor concluded by again asserting that the record of what had been written down was already complete.26

115 The trial court noted that the actual demonstrative exhibits "would be somewhat bulky," indicated that the record was already "explicit as to what was being memorialized," and denied defense counsel's request. When defense counsel asked for "permission for our own purposes and for our own record to photograph" the challenged exhibits, in case they were later destroyed, the trial court got angry, and the following exchange occurred:

THE COURT: You know what? What you're asking me to do is for permission to make your own record outside of the Court's record. Denied. The Court's ree-ord is what's going to stand. And if you want to look them up, you can do so. It's all in the transeript. There is nothing about this that has not been memorialized, and the transcript is the way that we make a record in Oklahoma courts.
MR. WOODYARD: We think the better way to show actually how these things sit in the courtroom and exactly what's written would be to either have the documents or the digital photograph, so we're making that request and I understand the Court's denying our request.
THE COURT: Your understanding is absolutely on target.

T16 It seems to me that the preceding review of the transcript record in this case makes a few thing quite clear (though certainly not the contents of the challenged exhibits). The current record is not complete about what was written on the demonstrative exhibits; everything that was written down on these exhibits was not memorialized by being read into the record; and the transcripts alone are not adequate for a fair review of the current claim on appeal. Defense counsel's request to digitally photograph the demonstrative exhibits, as they appeared in the courtroom, and to either preserve intact or digitally photograph the individual exhibits was entirely reasonable. I conclude the trial court abused its discretion in denying defense counsel's requests in this regard.

T 17 Defense counsel was more than diligent in attempting to provide this Court with an adequate record to review his Proposition III claim. Hence we certainly cannot fault *170Glossip for the inadequacy of the current record in this regard. In fact, the majority opinion acknowledges being "extremely troubled by the trial court's attitude toward defense counsel's attempt to preserve the demonstrative aides for appellate review." And I agree with the majority that "(tlhe total recalcitrance of the trial court to allow a record to be made creates error in itself." Consequently, I cannot understand the majority's summary conclusion-made without attempting to review the actual exhibits at issue-that "[aluy error in the utilization of these posters was harmless."

¶18 The State has represented to this Court that it still has the actual poster exhibits from Glossip's trial.27 In his reply brief, Glossip requests that we order the State to supplement the record with these actual exhibits. In my view, if we are going to deny Glossip's claim, we should not do so without at least reviewing the actual demonstrative exhibits, if they are still available, particularly since Glossip's counsel diligently sought to have these exhibits included in the appellate record.

¶19 The rub, of course, is that Glossip does not (and did not) challenge the accuracy of the notes taken by the prosecutor at trial, nor does he raise a prosecutorial misconduct claim in this regard. @lossip's claim in Proposition III is that the posted exhibits of the prosecutor's notes from selected witness testimony (1) placed undue emphasis on the chosen testimony, (2) violated the rule of sequestration of witnesses, and (8) amounted to a "continuous closing argument." Reviewing the actual paper exhibits could potentially help us resolve these claims, but such a review might not be decisive, particularly since this Court still would not know how the various exhibits were displayed in the courtroom. I take up lossip's claims in turn, based upon the limited record currently before the Court.

¶ 20 First, I agree that the manner in which the State was allowed to record and post selected witness testimony, in the context of Glossip's capital trial, placed undue emphasis upon this testimony. While this Court has repeatedly approved the use of demonstrative exhibits, including summaries of witness testimony, to aid the jury in its consideration of evidence, we have also recognized that demonstrative exhibits can be misleading and can be misused in the trial setting.28 In Moore v. State,29 we addressed a claim that the State's use of a written summary of an expert witness's testimony placed "undue emphasis" on the summarized evidence. We rejected the claim, based upon the fact that the jurors only had access to the summary during the time that the expert witness was actually testifying.30 We also noted that the summary assisted the trier of fact, since it helped explain "the extensive fiber evidence in the case at bar.31 The current case is distinguishable on its facts.

¶ 21 Glossip's jury was able to review the State's hand-written summaries of witness testimony long after the testifying witnesses left the stand, throughout the first stage of his trial. Furthermore, despite the State's desire to catalog and display its favorite testimony, such recording can hardly be de-seribed as "necessary" for the jury's understanding in this case. Although the trial was long and many witnesses testified, the evi*171dence summarized did not relate to complex expert testimony or to concepts that were not readily accessible to average citizens. And even if the actual demonstrative exhibits are uncontroversial-and Glossip has never challenged the State's right to create them-there was absolutely no justification for allowing them to remain in the courtroom throughout the taking of first-stage evidence in Glossip's trial.32 I conclude that the trial court's decision to allow the continuous posting of these exhibits, without any limitation and over defense objection, was an abuse of discretion, because it placed undue and unfair emphasis on the summarized testimony.

T22 I also conclude that the posting of these hand-written summaries during the testimony of later witnesses violated the rule of sequestration of witnesses. This rule is codified at 12 00.98.2001, § 2615, and was properly invoked by defense counsel at trial.33 The purpose of this rule is fairly obvious and is well established: "It exercises a restraint on witnesses tailoring their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid." 34 The State's argument that the posted exhibits did not violate the rule of sequestration because the later witnesses couldn't actually "hear" the testimony of earlier witnesses-they would have to read it-is ridie-ulous in my view. It would certainly violate the rule of sequestration to provide a later witness with a transcript of an earlier wit-nesg's trial testimony, and what occurred in Hossip's trial was a limited version of this same phenomenon.

¶ 23 Furthermore, the possibility of a later witness learning about the testimony of earlier witnesses through these lingering exhibits was more than a theoretical danger in this case. The testimony of Kenneth Van Treese made quite clear that he was reading and responding to the posted testimony of the witnesses who preceded him.35 Hence the posting of the demonstrative exhibits violated the rule of sequestration of witnesses as well.

¶ 24 I also agree that the overall effect of the posted summaries of the State's favorite testimony was akin to allowing the State to post its theory of the case and to make its closing argument throughout the first stage of Glossip's trials.36 Hence I conclude that the trial court abused its discretion in allowing the State, over defense objection, to display the prosecutor's written summaries of selected witness testimony throughout the *172courtroom-and apparently visible to both jurors and testifying witnesses-without any limitation and throughout the evidentiary portion of the guilt stage of Clossip's trial. And I find merit in each of Glossip's three challenges to this decision. Although it is difficult to confidently evaluate the prejudice from this trial court error, I strongly dissent from the majority opinion's summary finding that any error in this regard was "harmless," particularly when we do not even seek to review the actual demonstrative exhibits at issue.

125 Regarding Proposition I, I strongly disagree with the majority opinion's treatment of CGlossip's challenge to the accomplice corroboration evidence in this case. In Pink v. State,37 a case that the majority opinion barely acknowledges, this Court recently summarized and clarified Oklahoma's corroboration requirement for cases involving accomplice testimony, found at 22 Okla.Stat. 2001, § 742.38 As we noted in Pink, in cases where the State relies upon accomplice testimony, the defendant can only be convicted where the State also presents evidence that "standing alone, tends to link the defendant with the commission of the offense charged." 39 Hence the State must present "at least one material fact of independent evidence that tends to connect the defendant with the commission of the erime," which is entirely separate from the accomplice testimony, but which corroborates some material aspect of that testimony.40 We noted in Pink that this Court has in the past found the following independent evidence to be adequately corroborating: "evidence of stolen goods found in the defendant's possession, the testimony of non-accomplice associates of the defendant, [and] admissions by the defendant." 41 This Court has never found that evidence that a defendant had a motive to commit a particular crime or that he helped conceal a crime committed by another is enough, standing alone, to link that defendant with the actual commission of the crime at issue. Yet this is the "corroboration" evidence focused upon in today's majority opinion.42

T 26 The Court's opinion initially notes that "Itlhe State concedes that motive alone is not sufficient to corroborate an accomplice's testimony." Yet the opinion then attempts to demonstrate, by relying on cases from Texas, California, and Georgia, that evidence of a defendant's motive, as well as evidence about concealing the commission of a crime and attempted flight, can be adequate as corroborating evidence. These cases are entirely irrelevant to interpreting Oklahoma's very specific, accomplice corroboration statute.43 And the majority opinion does not cite any Oklahoma authority for (or make a persuasive argument for) its assumption that non-accomplice evidence suggesting that a defendant had a motive to commit a crime, assisted the perpetrator in concealing a crime, or planned to leave the area afterward can qualify as adequate corroborating evidence linking a defendant to the actual commission of the erime under 22 0.8.2001, § 742.44

*173T 27 In fact, this Court has specifically held that evidence implicating a defendant as an "accessory after the fact"-through his actions of helping dispose of the victim's body, lying to the police, and attempting to conceal a murder that he had directed others to commit-is not adequate to "independently connect him to the actual commission of [the] murder," under Oklahoma's accommodation requirement.45 The facts of Cummings are quite similar to the current case. Cummings apparently directed both of his wives to kill his sister by shooting her, but was not present when the murder was committed by his second wife. When he returned home, he assisted in the disposal of his sister's body and lied to the police about it.46 Despite the strong evidence of Cummings's guilt, including the testimony of both of his (accomplice) wives, this Court reversed his conviction for murdering his sister based upon the accomplice corroboration rule.47

¶ 28 This Court's 2001 opinion in this case, in which we reversed Glossip's conviction based upon ineffective assistance of counsel,48 emphasized the minimal nature of the corroborating evidence in this case. We stated: "The evidence at trial tending to corroborate Sneed's testimony was extremely weak." 49 We also characterized certain inadmissible double hearsay testimony as "arguably the only evidence presented at trial that tended to independently corroborate any portion of Justin Sneed's testimony implicating Appellant in the crime and establishing a motive." 50 We declined to reach the question of the adequacy of corroboration, however, choosing instead to reverse on CHossip's ineffective assistance claim.51

¶ 29 The current opinion, after recognizing the corroboration requirement, takes a very different tone: "In this case, the State presented a compelling case which showed that Justin Sneed place himself in a position where he was totally dependent on Glossip." Of course that has nothing to do with independent evidence linking Glossip to the actual commission of the murder of Barry Van Treese. The opinion then discusses Sneed's accomplice testimony and the State's case as a whole. I believe that we must first focus upon the very narrow question of whether the State presented separate evidence, independent of the testimony of Sneed, that connects Gossip to the actual murder and that materially corroborates some aspect of Sneed's accomplice testimony.

¶ 30 Although the question is very close, I agree with the majority that "the most compelling corroborative evidence ... is the discovery of the money in Glossip's possession." Unfortunately, this single, conclusory sentence represents the entirety of the Court's analysis on this critical issue. I offer the following as an alternative, more narrow resolution of this issue.

31 According to the record in this case, when Gossip was questioned and then arrested on January 9, 1997, he was carrying $1,757 in cash, approximately $1,200 of which could not be accounted for by Glossip.52 *174Such unaccounted-for cash, when not uniquely identified by serial number or some other marking, is not nearly as strongly corroborating as the presence of identifiable stolen goods that are found in the defendant's possession. Nevertheless, considering this case as a whole, including the State's evidence that Glossip was a person of very limited means, who was low on cash at the time, and the timing of his arrest, I agree that this evidence materially corroborated Sneed's testimony.53 The evidence regarding Glossip's paycheck, sales, and purchases, which could not explain where he obtained approximately $1200 of the cash in his possession at the time of his arrest, materially corroborated Sneed's testimony that Glossip offered him money to kill Van Treese and then paid Sneed for accomplishing the murder, using half of the cash stolen from Van Treese's car, and then kept the remaining stolen money for himself.54 As noted in Pink, this Court has "not required that the quantity of the independent evidence connecting the defendant to the crime be great, though we have insisted that the evidence raise more than a mere suspicion." 55 I conclude that the amount of unaccounted-for cash found in (Glossip's possession two days after the murder does tend to directly link him to this murder-for-hire killing and adequately corroborates the testimony of his accomplice, Justin Sneed.

132 Although the issue is close, I conclude that the facts of this case are distinguishable from Pink, wherein we reversed the defendant's conviction for robbery with a dangerous weapon because the State did not present adequate independent evidence connecting Pink to the armed robbery at issue.56 I also find the Pink case distinguishable because the prosecutor in that case argued to the jury, contrary to well-established Oklahoma law, that the jury was mot required to find the existence of evidence, separate from the testimony of any accomplices, that tended to connect the defendant with the commission of the offense.57 This argument prompted us to revise the language of OUJI-CR(2d) 9-32, upon which the prosecutor in Pink had based her argument.58 Although Glossip's trial was conducted using the pre-Pink version of this instruction, the prosecutor in his case specifically acknowledged, during closing argument, that Glossip's jury was required to find adequate corroborating evi*175dence in order to convict him of murder. Hence Glossip's jury was not misled in this regard.

1 33 It is important to distinguish the adequate corroboration requirement found in 22 Okla. Stat.2001, § 742, which applies only to cases involving accomplice testimony, from the general sufficiency of the evidence standard, which can be applied to any conviction. After the independent corroboration standard has been met for any accomplice testimony, this Court can and will consider all the evidence presented at trial, including accomplice testimony, to determine whether sufficient evidence was presented to convict the defendant.59 In this regard, I agree with the majority that the State presented a strong circumstantial case against Glossip, which when combined with the testimony of Sneed directly implicating (ilossip, was more than adequate to sustain his conviction for the first-degree murder of Barry Van Treese.

M34 Nevertheless, I dissent from today's decision based upon my analysis of Glossip's Proposition III claim.

. This Court addressed the practice of jurors taking notes in Cohee v. State, 1997 OK CR 30, 942 P.2d 211 (per curiam). We held that it was not error to allow jurors who took notes during a trial to take their notes into the jury room with them during deliberations. Id. at 15, 942 P.2d at 213. Although Cohkee did not require trial judges to allow jurors to take notes, it recognized that note-taking has substantial potential benefits during a trial:

Use of notes may aid the jury during their deliberations. We find that jurors may benefit from notes in several ways: (1) jurors may follow the proceedings more closely and pay more attention as they take notes for later use; (2) jurors' memories may be more easily and reliably refreshed during deliberations; (3) jurors may make fewer requests to have portions of a trial transcript read back during deliberations; and (4) the ability to use their notes may result in increased juror morale and satisfaction.

Id. at ¶ 4, 942 P.2d at 212. I would hope that trial courts considering whether to allow jurors to take notes would weigh these potential benefits against the potential risks from this practice.

. The court stated: "You know, note taking is a skill. If you're in a job or a student where you take notes every day, you get pretty proficient at it and you have a pretty good skill level at it. If it's been years since you've taken notes, you're pretty lousy at it." The court then explained that jurors would not be able to interrupt witnesses and ask them to repeat testimony, in order to ensure the accuracy of their notes, and described a scenario where a juror's written notes conflicted with that juror's memory of what was said: "And then you're confused[,] is what I wrote down right or is it the way I remember it right."

. The trial judge noted that she would provide jurors with a log of what happened each day, which "really helps" jurors remember what they heard. The record contains a court exhibit with a log of witnesses who testified, with a general description of who they were, such as "girlfriend of defendant," which was given to Glossip's jury. Yet this log contains no summary or other substantive information regarding the actual testimony of the witnesses.

. The trial court ruled that since there was going to be some overlap between the testimony of these two persons, both of whom were immediate family members of the victim, the victim's brother would be asked to leave the courtroom during the testimony of the victim's wife. (Although the record reveals that Mrs. Van Treese remarried and changed her name in 2003, she is referred to herein, as she was at trial, as Donna Van Treese.)

. As addressed further infra, the record in this case does not contain either the actual paper exhibits at issue or any photographs of them. The parties seem to agree, however, that the paper pad, which was used to create the various demonstrative exhibits at issue herein, was approximately 2 feet by 3 feet in size.

. The transcript in this trial sometimes reveals what was written down, because the prosecutor makes the statement "I have written ..." and then (presumably) states exactly what was written. At other times the examining prosecutor indicates that he/she is recording certain testimony, but then fails to state what exactly he/she has recorded. And it is entirely possible that on some occasions statements were written down without the examining attorney mentioning it at all. Hence the transcript serves as a limited and fundamentally incomplete record of what was written on the large paper demonstrative exhibits at Glossip's trial. I strongly disagree with the majority opinion's suggestion that a careful review of the transcript is "the only way to determine what was on the posters, in Toto [sic]." The only way to determine the complete contents of the posters is to review the actual posters.

. For example, the prosecutor recorded that the hotel bookkeeping (during the second half of 2006) was "not up to par" and also apparently wrote "lifestyle decision not to fire Glossip during family turmoil" and "year-end totals and losses demand change." Although none of these remarks were actual quotes from the witness, these and similar statements that were apparently written down were reasonable summaries of witness testimony and were not challenged, in terms of content, either at trial or on appeal.

. The prosecutor apparently wrote, "Last time I saw Barry it was on the 7th in the morning between 7 and 7:30. He was leaving to go to the store and buy some supplies."

. The record suggests that at some point during the cross examination of Wood, defense counsel wrote on the paper pad as well, since he refers to "1-7," for January 7th, and explains to Wood that "BVT" stands for Barry Van Treese. Yet the transcript is totally unclear what else, if anything, defense counsel wrote down.

. Defense counsel stated:

We want to make an objection for the record to the posting of demonstrative exhibits that are basically an accumulation of notes written by the prosecutors to remain throughout the course of the variety of witnesses.
I understand the need sometimes for a demonstrative exhibit with a particular witness and then you bringing a demonstrative exhibit out with others, but basically all this does is emphasize the testimony of-it's only part of the testimony. And as a result of that we do object.

. The prosecutor asserted:

. The State asserts on appeal that this Court should review Glossip's claim regarding the posting of the demonstrative exhibits only for "plain error," since Glossip's counsel did not re-raise his objection every time the prosecutor posted a *167new exhibit. Yet on-the-record comments made at the end of the first stage of Glossip's trial indicate that the issue of posting and also of preserving these exhibits may have been further addressed, off the record, at trial. Furthermore, the record indicates that the trial court was fully aware of Glossip's "undue emphasis" objection and had no intention of sustaining it. Hence I find that this claim was adequately preserved at trial.

. The prosecutor also attempted to record the approximate time at which each of these statements was made by Glossip.

. In the later part of Hooper's direct testimony, it becomes impossible to tell exactly what, if anything, is being written down, though the favorable nature of Hooper's testimony and the prosecutor's initial remark about wanting to write "all this up here" suggests that the prosecutor may have continued to summarize portions of Hooper's testimony on the paper pad.

. For example, she wrote down that Glossip described the victim, who had been found the previous evening, as "deader than a doornail," "cold as ice," and "beat to a bloody pulp." The prosecutor also apparently recorded some version of Glossip's remark to Bender that if the police hadn't told him to "stick around," he "would have already been gone."

. The exchange at the bench was as follows:

THE COURT: There's one other matter that I think in fairness should be listed up there, which is that he [Glossip] told them [sic] [Bender] that he was in fear for his life.
MS. SMOTHERMON: Okay. Iwill.
THE COURT: And in the interest of fairness, I want to make sure that-if you'll just fix that, please.
MS. SMOTHERMON: I will.

. Once again, however, the record does not reveal precisely what was written down.

. Jacquelyn Williams was a housekeeper who lived in the Best Budget Inn rent-free, but who was not otherwise paid for her services. The transcript only clearly indicates one portion of her testimony that the prosecutor wrote down, namely, that Glossip told her to stay in her room when the owner came around. Yet the prosecutor's style of questioning, repeatedly clarifying particular pieces of information, suggests that she may have been taking notes on other testimony as well.

. Kayla Pursley worked the night shift at a gas station across from the Best Budget Inn. The transcript makes clear that the prosecutor wrote down that around 8:30 a.m., on January 7, Glos-*168sip told Pursley that "there was a fight between two drunks and they had thrown a footstool through the window," and that "one of the drunks was the strange guy that [Pursley] had seen earlier," and that Glossip and Sneed "threw the drunks out." The prosecutor later indicated that she was writing down other testimony "before I forget," which apparently included Glossip's statements to Pursley about the broken window in Room 102, i.e., that he and Sneed "already cleaned that up" and that one of them "got cut." It is unclear whether the prosecutor wrote down other testimony from Kayla Pursley.

. Michael Pursley had been married to Kayla Pursley and was living with her and their children at the Best Budget Inn at the time. The transcript indicates that the prosecutor wrote down his testimony that around 8:30 a.m., on January 7, Glossip told him that he "knew the window [in Room 102] had been broken," that Glossip and Sneed had "been in the room," and that they knew "who had broken the window" and were "going to bill them for it."

. Sometimes the record is quite clear about what is being written, such as when the prosecutor quotes Glossip as saying to Brown, "Things keep getting turned around, I didn't say I saw Barry at 7:00 a.m." After getting confirmation of this quote from Brown, the examining prosecutor asks, "Now, did we get that, Ms. Smother-mon?", and she responds, "Yes, sir." Yet on other occasions the examining prosecutor asks Brown to confirm "what Ms. Smothermon is writing" and that she "has it right," but fails to review what has been written.

. The transcript indicates that she wrote down Glossip's statements about Van Treese returning from Tulsa around 2:30 or 3:00 a.m. on the morning of January 7, that Glossip had last seen Van Treese around 7:00 a.m. that same morning, and that Glossip said he had rented Room 102 to "a couple of drunk cowboys," who had gotten into a fight and broken the window.

. The prosecutor did not challenge defense counsel's description of the paper demonstrative exhibits being "taped to various places in the courtroom." Glossip's appellate brief asserts that according to his trial counsel, "there were at least twelve of the State's posters plastered up across the front of the prosecutor's table, the trial bench, and any other available space in the couriroom." The current record, however, is inadequate to evaluate this specific claim.

. See Anderson v. State, 1985 OK CR 94, ¶ 4, 704 P.2d 499, 501 ("It is well established that counsel for a defendant has a duty to insure [sic] that a sufficient record is provided to this Court, so that we may determine the issues.") (citation omitted).

. In particular, the prosecutor described an exhibit recording a statement in which Sueed denied he had killed Van Treese, which was displayed during Sneed's testimony and that of others. Defense counsel did not dispute the prosecutor's assertion that he had created five demonstrative aids comparable to those made by the State.

. "I worked very hard to put everything that was written into the record and to make sure that all of their demonstrative aids were read into the record. And I believe the record to be complete."

. Appellate counsel for Glossip, however, apparently does not possess the poster exhibits that were made by defense counsel at Glossip's trial.

. See, eg., Dunkle v. State, 2006 OK CR 29, ¶ 64, 139 P.3d 228, 249 (finding that State's use of demonstrative exhibits, in the form of computer-generated animations or "reenactments," was "inappropriate and highly misleading"). This Court recognized in Dunkle that even though demonstrative exhibits "should not be made available for the jury during deliberations, as they have 'no independent evidentiary value,'" such demonstrative aids must nevertheless be authenticated and evaluated to determine whether they are relevant and whether their probative value is outweighed by the danger of unfair prejudice or by other trial considerations (confusion of the issues, undue delay, cumulative evidence, etc.). Id. at ¶¶ 53-54, 139 P.3d at 246-47 (citation omitted). Demonstrative exhibits that summarize witness testimony can be authenticated by demonstrating that the summary provided/created is consistent with the witness's testimony.

. 1990 OK CR 5, 788 P.2d 387.

. Id. at T 44, 788 P.2d at 398.

. Id.

. In Lanning v. Brown, 377 S.W.2d 590 (Ky.1964), Kentucky's highest state court noted that although it was proper to display a chart summarizing an injured victim's testimony about her damages during that wilness's testimony, "it is quite another thing to allow a particular segment of testimony to be advertised, bill-board fashion, after the living witness has vacated the stand," particularly if the exhibit "is not being used in connection with the subsequent testimony of other witnesses." Id. at 594. The Lanning court concluded that the trial court erred in allowing the damages demonstrative exhibit to remain visible in the courtroom, over objection, throughout the remainder of the trial. Id. Because the amount of damages was not in dispute, however, the court found that the error did not prejudice the defendants in that case and granted no relief. Id.

. See 12 0.$.2001, § 2615 ("At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses."). This rule is also known as "the rule of exclusion" and is typically invoked at trial by referring simply to "the rule." While there are exceptions to this rule, both statutory and by common law, nome are relevant in this case.

. Clark v. Continental Tank Co., 1987 OK 93, ¶ 6, 744 P.2d 949, 951 (quoting Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1335, 47 L.Ed.2d 592). The Clark opinion notes that the practice of sequestering witnesses, in order to seek the truth, goes "as far back as the days of Daniel and the story of Susanna." Id. at ¶ 5, 744 P.2d at 950-51.

, When Kenneth Van Treese was asked what Glossip said to him on January 8, 1997, regarding the disappearance of Barry Van Treese, he responded: "He [Glossip] told me the same thing that these notes up here are about. About having seen Barry at 7:00, you know, blah, blah, and so forth." In other words, he told me the same lame story that he told the other witnesses, as we all can see from these posted summaries of their testimony.

. See, eg., Vanlandingham v. Gartman, 236 Ark. 504, 367 S.W.2d 111, 114 (1963) ("[Allthough an attorney might use a chart or blackboard to illustrate his argument, it would not be fair to place the illustration where it could be seen by the jury at times when the attorney was not using it in making his argument. If the jury could see it all day[,] it would be the same as arguing the case all day.").

. 2004 OK CR 37, 104 P.3d 584.

. 22 0.$.2001, § 742 ("A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.").

. 2004 OK CR 37, ¶ 15, 104 P.3d at 590 (quoting Cummings v. State, 1998 OK CR 45, ¶ 20, 968 P.2d 821, 830).

. Id. at ¶ 16, 104 P.3d at 590 (internal citations omitted). The State's brief quotes paragraphs 15 and 16 of Pink in their entirety.

. Id. at ¶ 20, 104 P.3d at 592 (citing cases).

. The opinion initially refers to "four ... aspects of Glossip's involvement, ... which point to his guilt: motive, concealment of the crime, intended flight, and ... his control over Sneed." Yet after reviewing the evidence on these four issues, the opinion concludes that this evidence, "taken together," is not merely indicative of guilt under a traditional sufficiency-of-the-evidence analysis, it is adequate to "corroborate Sneed's story about Glossip's involvement in the murder" and "sufficiently ties Glossip to the commission of the offense."

. The State notes in its brief, correctly, that "Defendant's challenge to the accomplice testimony in this case rests on pure state law grounds."

. The opinion does not cite any authority for (or even fully develop) its contention that evidence of a defendant's "control" over the perpetrator can be adequate corroboration.

. See Cummings v. State, 1998 OK CR 45, ¶ 21, 968 P.2d 821, 830.

. Id. at ¶¶ 2-11, 968 P.2d at 827-28.

. Id. at ¶ 21, 968 P.2d at 830 ("As Appellant contends, outside of the testimony of Juanita and Sherry, the evidence only supports a finding that Appellant assisted his wives in lying to the police and in covering up the crime. It does not independently connect him to the actual commission of Judy Mayo's murder."). This Court upheld Cummings's conviction for the murder of his niece, however, because his second wife was not an accomplice to this separate murder; hence her testimony provided adequate independent evidence corroborating the testimony of Cummings's first wife (who was an accomplice) regarding the murder of their niece. Id. at ¶¶ 22-23, 968 P.2d at 830-31.

. See Glossip v. State, 2001 OK CR 21, 29 P.3d 597.

. Id. at ¶ 8, 29 P.3d at 599. We also noted that "the only 'direct evidence' connecting Appellant to the murder was Sneed's trial testimony," and that "[nlo forensic evidence linked Appellant to [the] murder and no compelling evidence corroborated Sneed's testimony that Appellant was the mastermind behind the murder." Id. at ¶ 7, 29 P.3d at 599.

. Id. at ¶ 21, 29 P.3d at 602.

. Id. at ¶ 8, 29 P.3d at 599.

. On the evening of January 6, 1997, Van Treese paid Glossip for his work in December of 1996 with a check for $429.33. According to Glossip's girlfriend, she and Glossip paid a 10% *174fee to cash the check on January 7, which would have left them with $386.40. They then went shopping and spent $172 for a pair of glasses, $107.73 for an engagement ring for her, and $45 more at Wal-Mart. These purchases would have left Glossip with only $61.67 from his paycheck. It can be reasonably inferred from the evidence that Glossip was very low on cash before being paid, because earlier in the day on January 6, he took a $20 advance from the hotel against the paycheck he was about to receive, to get through the day. In addition, Glossip's girlfriend told an investigator that they lived paycheck to paycheck and that she did not think Glossip was able to save any money.

Glossip later stated, during an interview in June of 1998, that just before he was arrested in this case, he sold his TV and futon for $190, sold his vending machines for $200, and sold an aquarium for $100, for a total of $490. If Glos-sip still had all of this cash, plus the money leftover from his paycheck at the time of his arrest, he would have had approximately $552 in cash.

. The finding of "stolen goods" in the defendant's possession is one of the examples of independent corroborating evidence noted in Pink. 2004 OK CR 37, ¶ 20, 104 P.3d at 592.

. The State presented evidence at trial that Barry Van Treese would have had $3500 to $4000 in cash in his possession, based on hotel receipts. Justin Sneed testified that the envelope he found under the front seat of Van Treese's car, where Glossip told him to look, contained approximately $4,000 in cash, which Glossip split evenly between Sneed and himself. When Sneed, who had no regular source of income, was apprehended one week later, he told investigators that he still had some of the money that he had been paid and where it could be found. When investigators searched the apartment to which Sneed directed them, they found a Crown Royal Bag containing $1,680 in cash in a drawer that Sneed was using while he stayed in the apartment.

. 2004 OK CR 37, ¶ 16, 104 P.3d at 590 (emphasis in original). We also noted in Pink that "circumstantial evidence can be adequate to corroborate an accomplice's testimony." Id. at ¶ 16, 104 P.3d at 590-91.

. See Pink, 2004 OK CR 37, ¶¶ 17-20, 104 P.3d at 591-92.

. Id. at 122, 104 P.3d at 592.

. Id. at 123, 104 P.3d at 593.

. Hence although I reject the majority opinion's suggestion that Glossip's failure to immediately disclose his knowledge of Van Treese's murder and his misleading of the investigation can serve as adequate corroborating evidence under § 742, I agree that this evidence can be considered as going to consciousness of guilt within our overall sufficiency of the evidence analysis, after adequate corroboration is established.