CRUSE v. STATE

CRUSE v. STATE
2003 OK CR 8
67 P.3d 920
Case Number: F-2001-1046
Decided: 04/09/2003
JASON LEON CRUSE, Appellant -vs- STATE OF OKLAHOMA, Appellee

OPINION

LILE, VICE PRESIDING JUDGE:

¶1 Appellant, Jason Leon Cruse, was convicted at jury trial of First Degree Malice Aforethought Murder (

¶2 Appellant, age 21, had just served as a pallbearer at his grandfather's funeral. He was upset and drinking. His girlfriend went to the apartment of a former lover, the victim. Cruse showed up, kicking the door and screaming. The victim opened the door and Cruse demanded to know where his girlfriend was. When informed that she was in the back of the apartment, Cruse stabbed the victim in the heart. Other occupants of the apartment disarmed Cruse who then ran away.

¶3 Appellant contends that the trial court erred in failing to instruct the jury on Second Degree Murder even though not requested to do so at trial. We examine for plain error only. Ashinsky v. State,

¶4 This case is remarkably similar to Williams v. State,

¶5 The facts in the case before us are more compelling for the same conclusion. Appellant took the knife and had it secreted as he asked for his girlfriend. When he confirmed where she was, he cursed the victim and drove the knife into the victim's chest. He wasn't satisfied with one fatal stab to the heart and continued trying to stab the victim until overpowered by others present.

¶6 There is no evidence to support an absence of intent to kill, and, if requested, the instruction would properly have been refused.

¶7 Appellant complains, for the first time on appeal, that Native American jurors were excused on account of their race in violation of the rule in Batson v. Kentucky,

¶8 Next, Appellant claims that the trial judge improperly injected race into the trial. The defense counsel made the following comment during voir dire:

"Mr. Cruse is a full-blood Native American citizen. Is there anyone on this panel who has a problem with that? Can you all agree that Native American citizens have the same rights as all the rest of us?"

¶9 The trial court asked the jurors to identify themselves if they were Native American citizens. It would be difficult to consider Batson issues unless this was determined. There was no objection to the Court's action at trial. On appeal, Appellant claims that the Court's action constituted error. No citation to authority accompanies the claim and, indeed, no authority exists. This proposition is denied.

¶10 Appellant complains for the first time on appeal that the prosecutor's closing argument was an appeal for sympathy for the victim. Sympathy for the victim or defendant is not a proper consideration in a criminal trial. However, a mere recital of facts in evidence is proper. Van White v. State,

¶11 Appellant claims that his trial counsel provided inadequate representation under Strickland v. Washington,

¶12 Trial counsel's argument that the victim may have fallen on his own knife has some support in the record and was not improper. The victim did have a hunting knife laying out in the apartment. Trial counsel was not ineffective for making the argument.

¶13 Investigatory statements of two witnesses established that the victim had grabbed Appellant prior to the stabbing and that Appellant was under emotional stress on the night on the incident. These matters were established at trial and defense counsel cannot be said to be ineffective for avoiding cumulative or redundant witnesses. Hammon v. State,

¶14 Appellant complains that the apartment complex where the crime occurred was a "dependant Indian community" and the State of Oklahoma had no jurisdiction. However, the property was owned by an agency of the State of Oklahoma, which fact is fatal to a claim that it was in Indian Country. Eaves v. State,

¶15 However, we do find error in the sentence entered by the trial judge. Historically, under our Constitution, parole has been a matter exclusively reserved to the Pardon and Parole Board and to the Governor. In the case of a sentence of death or "life imprisonment without parole," the power to grant a parole has never existed. Oklahoma Constitution, Article VI, § 10. The power to grant parole, or to suspend a prohibition of parole, denied to the Executive Branch certainly does not lie with the Judiciary.

¶16 The trial court's sentence in this case is not authorized by law. The trial court effectively sentenced Appellant to life imprisonment and the sentence is therefore modified to life imprisonment.

DECISION

¶17 Appellant, Jason Leon Cruse, was convicted at jury trial of First Degree Malice Aforethought Murder (

AN APPEAL FROM THE DISTRICT COURT OF MURRAY COUNTY
THE HONORABLE JOHN H. SCAGGS, DISTRICT JUDGE

ATTORNEYS AT TRIAL

ATTORNEYS ON APPEAL

OSHER BACHRACH
P.O. BOX 2442
NORMAN, OK 73070
ATTORNEY FOR DEFENDANT

THOMAS PURCELL
APPELLATE DEFENSE COUNSEL
INDIGENT DEFENSE SYSTEM
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

JOHNNY S. LOARD
ASSISTANT DISTRICT ATTORNEY
MURRAY COUNTY COURTHOUSE
SULPHUR, OK 73086
CRAIG LADD
ASSISTANT DISTRICT ATTORNEY
CARTER COUNTY COURTHOUSE
ARDMORE, OK 73401
ATTORNEYS FOR STATE

W. A. DREW EDMONDSON
ATTORNEY GENERAL
BRANT M. ELMORE
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: LILE, V.P.J.
JOHNSON, P.J.: CONCURS
LUMPKIN, J.: CONCURS
CHAPEL, J.: CONCURS IN RESULTS
STRUBHAR, J.: CONCURS

FOOTNOTES