FITZGERALD v. STATE

FITZGERALD v. STATE
2002 OK CR 31
61 P.3d 901
Case Number: D-2000-1502
Decided: 08/21/2002
JAMES J. FITZGERALD, Appellant -vs- STATE OF OKLAHOMA, Appellee

CHAPEL, JUDGE:

¶1 James Fitzgerald was tried by jury and convicted of Count I: Robbery with a Firearm in violation of

¶2 Fitzgerald appealed his Judgments and Sentences to this Court. We affirmed his convictions and sentences for Counts I, II and IV, but vacated his death sentence for Count III because of "pervasive error in the second stage of trial."

¶3 The facts of this case are recounted in Fitzgerald v. State,

¶4 In Propositions I and II, Fitzgerald claims that the trial court erred by excluding evidence that was admissible either as mitigation or to rebut the "continuing threat" aggravating circumstance. Specifically, Fitzgerald contends that the jury should have been allowed to: (1) see him in his wheelchair; (2) view the entire videotape of his leg being broken; and (3) hear Dr. Cunningham's testimony regarding risk assessment in prison society. "It is settled that a defendant may present in mitigation any aspect of his record or character, and any circumstances of the crime" that could possibly convince a jury that he is entitled to a sentence less than death.

A.

¶5 After his original trial but before resentencing, Fitzgerald's leg was severely broken in an incident with Tulsa County Deputies. Fitzgerald was left with limited mobility and must now use a wheelchair or other device to ambulate. He is, however, able to sit in a chair and walk short distances without aid. Based upon this evidence, the trial court ordered that Fitzgerald be seated in a normal chair during trial, and prohibited him from sitting in his wheelchair, because it was "not medically necessary." Fitzgerald argues that this was error because it prohibited him from introducing evidence regarding his limited mobility, which was relevant in mitigation and to rebut the "continuing threat" aggravating circumstance. However, the trial court's ruling did not prohibit the jury from hearing evidence offered by Fitzgerald regarding his medical condition and diminished ability to move about.

¶6 The jury viewed the videotape of the leg fracture, received evidence that Fitzgerald could not bear weight on it and need-[61 P.3d 903] ed an assistive device for ambulation, was instructed that Fitzgerald had limited mobility as a result of his broken leg, and was well informed of those limitations. The trial court did not prohibit any evidence regarding any of his medical conditions from being presented to the jury. Thus, we cannot say that the trial court's order prohibiting Fitzgerald from sitting in the wheelchair in the courtroom was error. This argument is denied.

B. The Videotape

¶7 Fitzgerald's leg was broken in an incident at Tulsa County Jail. Fitzgerald had been taken by jailors to receive a court-ordered insulin injection for his diabetes, prior to which his blood had to be drawn to determine its sugar level. Fitzgerald refused to have his blood drawn. His leg was severely broken when several Tulsa County Deputies attempted to restrain him for the procedure.

¶8 This incident, captured on videotape, was introduced to the jury in edited form. That version shows the leg breaking and Fitzgerald lying on the floor compliantly for a short while, whereas the unedited videotape shows Fitzgerald lying on the floor for extended time. Fitzgerald now asserts that showing the jury the edited videotape was error. However, Fitzgerald informed the court at trial that he would be willing to stop the videotape after two minutes and ten seconds. This concession waived any error in the videotape's admission to rebut the continuing threat aggravating circumstance.

C. Dr. Mark Cunningham

¶9 At the State's request, the trial court prohibited Fitzgerald from calling Dr. Cunningham to testify. Fitzgerald had filed an Offer of Proof of the Proposed Testimony of Dr. Mark Cunningham,

¶10 This Court had originally reversed and remanded Fitzgerald's sentence for resentencing-in part, because he was prohibited from presenting expert testimony to rebut the "continuing threat" aggravating circumstance and discuss his future dangerousness.

¶11 In Proposition III, Fitzgerald asserts that it was error to admit the first stage evidence from his May 1996 jury trial to his capital resentencing. The second stage admissibility of such previously admitted evidence is governed by

¶12 Relying on Howell v. State,

¶13 Fitzgerald claims that a litany of evidence was improperly admitted at his resentencing trial.

¶14 In Proposition IV, Fitzgerald asserts that victim impact evidence serves as an unconstitutional "super" aggravating circumstance that has no place in Oklahoma's capital sentencing scheme. This argument has been roundly rejected by this Court and Fitzgerald does not persuade us to reconsider that ruling.

¶15 In Proposition V, Fitzgerald contends that the "continuing threat" aggravating cir-[61 P.3d 905] cumstance is unconstitutional on its face and as applied. This Court and the Tenth Circuit have upheld the constitutionality of this aggravating circumstance

¶16 In Proposition VI, Fitzgerald claims that his constitutional rights were violated because the State was allowed to use his former violent felony convictions to support both the "prior violent felony" and "continuing threat" aggravating circumstances. This claim has previously been addressed and rejected by this Court because the evidence of prior convictions to support these two aggravating circumstances does not "show the same aspect of appellant or his crime."

¶17 Fitzgerald claims in Proposition VIII that the Eighth and Fourteenth Amendments to United States Constitution were violated because the permissive language of the mitigating circumstance instructions did not require the jury to consider his mitigating evidence. The jury was given Oklahoma Uniform Jury Instructions 4-78 and 4-79 on mitigating evidence

¶18 In Proposition IX, Fitzgerald asserts that the accumulation of error in his resentencing trial mandates relief. Having found no individual error there can be no accumulation of error.

MANDATORY SENTENCE REVIEW

¶19 In Proposition VII, Fitzgerald argues that his death sentence was imposed as a result of passion, prejudice and arbitrary factors. He bases his argument on the errors raised and rejected in this appeal. However, we must review this claim to determine: (1) whether the death sentence was imposed under the influence of passion, prejudice or other arbitrary factor, and (2) whether the aggravating circumstances were supported by the evidence.

¶20 In regard to the second inquiry, the jury was instructed on three aggravating circumstances and found the existence of two: (1) that Fitzgerald had been previously convicted of a felony involving the threat or use of violence to the person and (2) the existence of a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. We find that both aggravating circumstances were supported by sufficient evidence.

¶21 Additionally, the jury was instructed on eleven (11) specific mitigating circumstances

ATTORNEYS AT TRIAL

SILAS LYMAN
G. LYNN BURCH, III
KATHY LAFORTUNE
OKLAHOMA INDIGENT DEFENSE SYSTEM
CAPITAL TRIAL DIVISION
610 S. HIAWATHA
SAPULPA, OK 74066
ATTORNEYS FOR DEFENDANT

TIM HARRIS
DISTRICT ATTORNEY
DOUG DRUMMOND
FIRST ASSISTANT DISTRICT ATTORNEY
500 S. DENVER
TULSA, OK 74103
ATTORNEYS FOR THE STATE

ATTORNEYS ON APPEAL

G. LYNN BURCH, III
CAPITAL TRIAL DIVISION - TULSA
OKLAHOMA INDIGENT DEFENSE SYSTEM
1660 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
NANCY E. CONNALLY
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: CHAPEL, J.

 
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