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Bland v. State5/16/2000
contest his commission of the offenses, but only his level of culpability. The record shows Mrs. Prentice was in an adjoining room in her home when she heard gunshots. She was then ordered to drive Appellant away from the scene. Accompanied by her young son, Mrs. Prentice drove Appellant through town, but was eventually pursued by police and rescued as Appellant was apprehended. Had a trial taken place on the charges, Appellant's motive would have been the same - - to discredit the witness and lessen his culpability based upon a defense of intoxication. Furthermore, if Mrs. Prentice was available to testify in Appellant's trial for the murder of Doyle Windle Rains, Appellant's motive would have been similar - - to discredit her testimony as to the shooting based upon the fact she did not witness the actual shooting and lessen his culpability to the entire incident through a defense of intoxication. The failure of counsel to more thoroughly cross-examine Mrs. Prentice on the kidnapping and ensuing police chase does not constitute a lack of opportunity to question the witness or indicate a dissimilar motive for purposes of Section 2804(B)(1).
Further, the great majority of Mrs. Prentice's testimony as to the circumstances surrounding the shooting of her husband and her kidnapping was relevant in proving the aggravating circumstances alleged. The only portion that might not have been relevant was testimony that Appellant also threatened to shoot and did shoot at her brother when he approached her home prior to her kidnapping. However, this incident came out as Mrs. Prentice was explaining the circumstances comprising the events which lead to the charges against Appellant. Accordingly, we find the "similar motive" requirement of Section 2804(B) has been met in this case and the preliminary hearing testimony of Mrs. Prentice was properly admitted.
Appellant next contends it was fundamentally unfair to allow the State to essentially retry him for twenty year old crimes for which the evidence was stale and crucial witnesses unavailable. To support his argument, Appellant relies on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). In Gardner, the Supreme Court ruled that due process was violated when the judge relied, in part, on confidential portions - - information not disclosed to the defense or his counsel - - of a pre-sentence investigation report in sentencing the defendant. 430 U.S. at 358, 97 S.Ct. at 1205. In the present case, Appellant was sentenced for the prior offenses in 1975 and remained incarcerated until approximately 1994 or 1995. Approximately four months prior to trial, the State filed a More Definite and Certain Statement of Allegations Set Forth in Bill of Particulars in Re Punishment in which the evidence to support the aggravating circumstances was set out. Specifically included was evidence as to the homicide of Raymond Prentice and the kidnapping of Brenda Prentice, including the preliminary hearing testimony of Mrs. Prentice. Here, Appellant had notice of the evidence to be used against him, unlike the situation in Gardner.
In Brewer v. State, 650 P.2d 54, 62 (Okl.Cr.1982), cert. denied, 459 U.S. 1150, 103 S.Ct. 794, 94 L.Ed.2d 999 (1983) this Court held that when the State alleges the aggravating circumstance of prior violent felony, it has the burden of presenting sufficient information concerning the prior conviction to prove its contention. If the defendant enters into a stipulation regarding the violent nature of the prior conviction, details of the prior conviction may still be presented in order to support the aggravating circumstance of "continuing threat". Smith v. State, 819 P.2d 270, 277 (Okl.Cr.1991) cert. denied, 504 U.S. 959,
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