1987 OK CR 68
736 P.2d 161

SCOTTY LEE MOORE, APPELLANT,
v.
THE STATE OF OKLAHOMA, APPELLEE.

Case No. F-84-760.

April 15, 1987
Rehearing Denied May 15, 1987.

An appeal from the District Court of Oklahoma County, David M. Cook, District Judge

Scotty Lee Moore, appellant, was convicted in Oklahoma County District Court, Case No. CRF-84-500, of Murder in the First Degree and received a sentence of death. Judgment and sentence is AFFIRMED.

Pete Gelvin, Asst. Public Defender, Oklahoma City, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

1 Scotty Lee Moore was convicted in the District Court of Oklahoma County of Murder in the First Degree. Punishment was assessed at death as the jury recommended to the trial court.

2 Moore was found guilty of killing Alex Fernandez, a desk clerk at a motel in Oklahoma City who had fired appellant from working at the motel a month prior to the homicide. At the time of the killings, Vicki Caster, appellant's cousin and girlfriend, was in his company. She offered incriminating evidence against appellant after having been granted immunity.

3 She stated that they entered the motel where Fernandez worked in the late evening of November 17, or early morning of November 18, 1983, for the purpose of robbing it. Appellant took a loaded .22 caliber rifle into the motel which he had stolen during a burglary in Dodge City, Kansas. Caster gathered up the cash at the motel desk while appellant took Fernandez to a back room. Contrary to appellant's promise to Caster, he used the weapon against Fernandez by shooting him five times in the head as the victim lay face down on the floor. Appellant later described with intrigue the appearance of balls of blood as the shots entered Fernandez's head.

4 Fernandez's body was not discovered until 7:00 a.m. the morning of November 18, 1983. The rifle appellant used to kill Fernandez was later recovered from appellant's brother-in-law to whom Moore had given the gun for safekeeping for his nephew.

I

5 Appellant first assigns as error the introduction into evidence of two 8" x 10" photographs which depict the victim face down on the floor shot in the head with blood splatterings in the surrounding areas. He claims their prejudicial value outweighed probative content, that the points they proved could have been stipulated by the parties, and that smaller, less damaging photographs were available but not used.

6 This Court has consistently upheld the admission of photographs which depict the wounds of a homicide victim. In Thompson v. State, 711 P.2d 936 (Okl.Cr. 1985), we noted that admission of photographs lies within the trial court's discretion whose decision is to be disturbed only upon abuse of that discretion. If such evidence is gruesome and the probative value is substantially outweighed by its prejudicial effect, only then will an abuse be found. Id.

7  Corroboration of the medical examiner's testimony as to cause of death, which was supplied by the pictures herein, gives probative value to photographs. Furthermore, the pictures in the present case corroborated Caster's testimony as to how and where Fernandez was killed. The 8" x 10" photographs better presented the wounds than the 5" x 7" ones did, and their use was justified. The photographs were not unnecessarily gruesome and their admission was not an abuse of discretion.

II

8 Appellant requested prior to trial funds to hire a ballistics expert in order to cast doubt on the testimony of the State's ballistics expert. The State's expert compared the projectiles which wounded the victim with the rifle retrieved from appellant's brother-in-law's possession and testified he believed the projectiles were consistent with having been fired by this particular gun. The expert could not make a conclusive statement. Appellant contends the trial court violated 22 O.S.Supp. 1986  464 [22-464](B), in not granting his motion for the funds in order that he might be able to refute what he characterizes as "the strongest evidence tending to corroborate Caster."

9 Appellant's defense at trial was that he was not involved in the robbery/murder and that Caster may have been the perpetrator. (This was his own description of his defense as stated in Appellant's Brief). The ballistics evidence was not antagonistic to his defense, nor did appellant establish prior to trial that the "expert witness is necessary to prepare the defense." 22 O.S. Supp. 1986,  464 [22-464](B).

10 In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court required an indigent to show that his insanity defense would be a significant factor at trial before the State was required to provide funds for access to psychiatric assistance in preparing for trial. We held in Plunkett v. State, 719 P.2d 834 (Okl.Cr. 1986), that when scientific evidence is the subject of the expert's testimony, the danger of an inaccurate resolution of the evidentiary issues is not necessarily present, and funds for a second expert is not usually warranted.

11 In the present case, the expert presented the bases for his opinions and was above-board in expressing the inconclusiveness of his findings. His testimony was neutral in nature and easily understood. Due to appellant's failure to establish the necessity to his defense of the expert's assistance prior to trial, its lack of significance to his defense, and the neutral, scientific nature of the evidence, the necessity of an expert's assistance was not present.

III

12 In Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140 (1982), the United States Supreme Court held that the Eighth Amendment forbids the imposition of the death penalty against one who "aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force be used." The jury in this case had a choice of finding appellant guilty of malice aforethought, or of felony murder. They found appellant guilty of felony murder. He now contends that since the jury rejected a finding of malice aforethought murder, his culpability was not proven to be great enough to allow imposition of the death penalty under Enmund. He cites Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), in which the Supreme Court condemned jury instructions which would allow a conviction of capital murder regardless of intent, and based solely upon the defendant having aided his accomplice at some point in an assault which led to the killing.

13 Appellant's contentions fly in the face of the sentencing instructions. The jury was advised:

In this case, the State has the burden of proving beyond a reasonable doubt that the Defendant, Scotty Lee Moore, either participated in the planning of the killing of Alex Fernandez or actually fired the shots into the body of Alex Fernandez resulting in his death, before you may consider the imposition of the death penalty.

If you do not so find or should you entertain a reasonable doubt thereof, then in either of said latter events, the sentence must be imprisonment for life.

14 This instruction held the jury to an even stricter standard than Enmund requires since they were to find beyond a reasonable doubt that he planned the killing or killed before the death penalty could be considered. There was a great deal of direct and circumstantial evidence from which the jury could have found, and in fact did find, this level of culpability.

IV

15 Appellant summarily presented prior to trial a motion to quash the jury panel from which his petit jury was drawn. He asserted then and now on appeal that he was denied a jury representative of a fair cross-section of the community in violation of the Sixth and Fourteenth Amendments. His claim is that individuals seventy years of age and older are systematically excluded because 38 O.S. 1981 28 [38-28](A) provides that they may not be compelled to serve as jurors. Trial counsel did not support his motion with statistical evidence, but only suggested that people seventy years of age or older probably constituted six percent of the population. He also offered a stipulation entered into with the State that several individuals had been excused from serving on the basis of age.

16 In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Supreme Court articulated the constitutional principle that criminal defendants are entitled to juries drawn from a fair cross-section of the community. When underrepresentation of venires of distinctive groups in the community is due to their systematic exclusion, a defendant's Sixth Amendment rights are infringed. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Court delineated the elements a defendant must show to establish a prima facie violation of the fair-cross-section requirement as:

(1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to the systematic exclusion of the group in the jury selection process.

Id. at 364, 99 S.Ct. at 668, 58 L.Ed.2d at 587. Appellant fails to establish any of the elements listed above.

17 In both Taylor and Duren, the defendants established that the underrepresented group, which was women, was sufficiently numerous and distinct that if they were eliminated from jury panels, the fair-cross-section requirement could not be satisfied. This has not been demonstrated herein.

18 Appellant's trial counsel guessed that the group he said was underrepresented constituted six percent of the community. The State has presented 1980 census data showing that 10.45 percent of Oklahoma County's population consisted of individuals sixty-five years of age and older. Those who may be exempted from jury service due to age would be an even smaller percentage since the above figure would be further reduced by subtracting 1) those persons sixty-five to seventy years of age, 2) those not registered to vote, and 3) those who fall within another exemption. Thus, appellant did not make the first showing.

19 Appellant did not make the second showing that the actual representation of this group was not fair or reasonable. He did not make any showing as to percentage represented by this group. A stipulation was offered showing several people were allowed to take this exemption.

20 Therefore, appellant has not made the proper showings to establish a prima facie violation of the fair-cross-section requirement. This assignment is without merit.

V

21 Prior to trial, appellant requested of the trial court funds to enable his attorney to go to Texas and interview two inmates as potential witnesses and also requested that the court compel their presence at trial. Trial counsel traveled to Texas at his own expense and interviewed these individuals. Affidavits were filed which provided the substance of the testimony they would have offered at trial. All of their testimony concerned instances of prior unrelated violence and other unlawful conduct by Vicki Caster.

22 Appellant categorizes these witnesses' testimony as impeaching of Caster's credibility and as mitigating toward his own culpability. But we find it to be neither and that the trial court did not err in denying his motions.

23 The testimony did not concern Caster's character for truthfulness and its admission is prohibited by 12 O.S. 1981 2608 [12-2608](B). This section of the Evidence Code provides that specific instances of conduct of a witness may not be proved by extrinsic evidence unless it concerns the individual's character for truthfulness. The affidavits of the two inmates' statements concerned violence, drugs, and prostitution.

24 Moreover, their testimony would not have been allowed in the sentencing stage as mitigating evidence. The rules of evidence continue to apply even at this stage. Though the scope of evidence which may be presented is much greater at sentencing in a first degree murder case, and evidence of mitigating factors concerning the character and record of an individual offender is essential, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), this does not include evidence of another's character and allow neglect of evidentiary rules. See also Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and Woodson v. North Carolina,

25 The "Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings," is codified at 22 O.S. 1981, 721-27 [22-721-27]. It allows out-of-state process for material witnesses. The trial judge held that the two in question were not material. There was no error.

VI

26 During the sentencing stage of trial, an assistant district attorney first gave a closing statement for the State. Appellant and his counsel then waived the opportunity to make a closing statement. The trial court advised appellant and his counsel that he had discretion to allow the State to make a second closing statement and again inquired if appellant continued in waiving closing argument. Appellant stated that he wished to follow his counsel's advice and waive closing argument. The State presented further closing argument by the district attorney. Appellant's counsel then asked to have the opportunity to make a closing statement, which the trial court denied.

27 Appellant alleges that a number of errors occurred during this scenario, but we disagree with his contentions. He first assigns as error the trial court's action of allowing the State to make a second argument after he had waived his right to do so. But as was discussed at trial in camera, this Court has held that the trial judge has discretion to allow the State to make a second argument when a defendant waives argument. Brewer v. State, 44 Okl.Cr. 361, 280 P. 473 (1929) (cited in Moore v. State, 461 P.2d 1017 (Okl.Cr. 1969)).

28 Section 831(6)[22-831(6)], Title 22 O.S. 1981 provides that a jury trial "must proceed in the following order:

. . . .

29 6. Thereupon, unless the case is submitted to the jury without argument, the counsel for the State must commence, and the defendant or his counsel shall follow, then the counsel for the state shall conclude the argument to the jury. . . ." (Emphasis added). The defendant, by waiving closing argument, cannot foreclose the State's final argument. Defendant must show an abuse of discretion and injury before relief would be warranted. Brewer, supra, at 474, 280 P. 473. Appellant has not made these showings.

30 He further urges that he should have been allowed another chance to give closing statements. Section 831(6) [22-831(6)] of Title 22 O.S. 1981, does not grant a defendant two opportunities for closing argument. He made a knowing waiver of his argument after the judge said he might allow the State to make a second argument. He offers no authority for such a trial procedure and he does not establish a reason that his waiver would be invalid. A defendant in a capital case may even waive trial and enter a plea of guilty. But he is not allowed to rescind his waiver on whim. Pierce v. State, 394 P.2d 241 (Okl.Cr. 1964). There is no error.

31 Appellant further complains that the trial court erred in allowing, over the defense's objection, improper comments as well as redundant comments by the district attorney during closing argument. However, redundancy itself is not necessarily objectionable.

32 The comment he contends is improper in spite of the wide latitude of argumentation of counsel afforded by this Court, Langdell v. State, 657 P.2d 162 (Okl.Cr. 1982), is as follows:

Citizenship in this society doesn't come free. Some of us went to World War II; some of us went to Korea; some of us went to Viet Nam

MR. RAVITZ: Objection.

THE COURT: Overruled.

(BY MR. MACY): all as a part of the price of citizenship that we have to pay to live in this great Nation.

But it goes beyond this. There come times when people like you have to sit in a jury box and face very, very distasteful and tough jobs.

But unless you do it, what's going to become of this great society of ours?

33 We do not agree that this comment is equivalent to those in other cases which we have held to be improper and prejudicial as playing on societal alarm or as inflaming the passions or prejudices of the jury. Cooper v. State, 584 P.2d 234 (Okl.Cr. 1978). This comment did neither. It focused on their duty to serve as jurors. It did not convey the message that they had to vote the death penalty or to decide the case based on emotional reaction. Tobler v. State, 688 P.2d 350 (Okl.Cr. 1984).

34 Appellant charges as well that the district attorney was improperly trying to invoke the sympathy of the jurors by mentioning that the victim was the father of two children. However, this was a matter of evidence. The right to discuss the evidence and any inferences arising from it is clearly within the freedom of speech afforded counsel in closing statements. Wacoche v. State, 644 P.2d 568 (Okl.Cr. 1982).

35 Finally, in this regard, appellant contends that the trial court denied him effective assistance of counsel. He claims that this was the result when the trial court did not allow his attorney to give argument after the State argued for the second time.

36 However, we note that appellant was represented at trial by one of the most experienced capital defense lawyers in the State. Though he had two attornies at trial, it was Mr. Ravitz who waived closing arguments, and whose advice appellant told the court he wanted to follow after being informed of his rights.

37 Indeed, the assistance of counsel was anything but ineffective. It was well planned and considered; it was purely a matter of trial strategy which we decline to second guess. E.g., Coleman v. State, 693 P.2d 4 (Okl.Cr. 1984). There is no error.

VII

38 Pursuant to 21 O.S.Supp. 1986 701.13 [21-701.13](C), we have reviewed the record and verdict herein and have determined that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor. We also find that the evidence supports the jury's finding of the four following aggravating circumstances:

1) The Defendant was previously convicted of a felony involving the use or threat of violence to the person;

2) The murder was especially heinous, atrocious or cruel;

3) The murder was committed for the purpose of avoiding a lawful arrest or prosecution; and,

4) The existence of the probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society.

39 There being no error warranting reversal or modification, judgment and sentence is AFFIRMED.

BRETT, P.J., concurs.

PARKS, J., specially concurs.

*****

PARKS, Judge, specially concurring:

1 Although I concur in the affirmance of the judgment and sentence of the appellant, I write separately to point out that I have conducted a proportionality review in accordance with my view that the application of 21 O.S.Supp. 1985 � 701.13 [21-701.13](C) to cases pending on appeal at the time the statute was passed renders the enactment an ex post facto law. See Green v. State, 713 P.2d 1032, 1041 n. 4 (Okl.Cr. 1985). I have compared the sentence imposed herein with those previous cases either affirmed or modified by this Court, see Johnson v. State, 731 P.2d 993 (Okl.Cr. 1987), and cases cited in Brecheen v. State.

  

1991 OK CR 43
809 P.2d 63

SCOTTY LEE MOORE, APPELLANT,
v.
STATE OF OKLAHOMA, APPELLEE.

Case No. PC-88-533.

April 9, 1991

An Appeal from the District Court of Oklahoma County; David Cook, District Judge.

Scotty Lee Moore, Appellant, was convicted in the District Court of Oklahoma County, Case No. CRF-84-500, of First Degree Felony Murder, and sentenced to death. Appellant filed an application for Post-Conviction Relief which was denied. From this denial of Post-Conviction Relief, appellant appeals. The Judgments and Sentences of the District Court are AFFIRMED.

David Autry, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PER CURIAM:

1 SCOTTY LEE MOORE, appellant, was convicted by a jury of First Degree Felony Murder in the District Court of Oklahoma County, Case No. CRF-84-500. Finding the existence of four aggravating circumstances, the jury sentenced appellant to death. On direct appeal, this Court affirmed appellant's conviction and sentence. Moore v. State, 736 P.2d 161 (Okl.Cr. 1987). Appellant's petition for Rehearing was also denied by this Court. Appellant filed a petition for Writ of Certiorari in the United States Supreme Court, which was denied. Moore v. Oklahoma, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987). Appellant then filed an application for Post-Conviction Relief in Oklahoma County District Court, which was denied on June 9, 1988. From this denial of Post-Conviction Relief, appellant appeals to this Court.

2 Initially, appellant asserts that the testimony of the accomplice, Vickie Caster, was not adequately corroborated by independent evidence and the remaining evidence was insufficient to sustain the conviction. However, appellant has waived review of this issue by his failure to assert it upon direct appeal. Coleman v. State, 693 P.2d 4, 5 (Okl.Cr. 1984). The doctrine of res judicata bars consideration in post-conviction proceedings of issues which have been or which could have been raised on direct appeal. Id. See also Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr. 1985).

3 Appellant next asserts that the trial court erred by admitting prejudicial, hearsay testimony of Margie Van Winkle and Sam Hermani. This issue has also been waived due to failure to raise it upon direct appeal. Coleman, supra.

4 Appellant next contends that prosecutorial misconduct during both stages of trial deprived him of his right to a fair trial. However, this issue was addressed by this Court on direct appeal, and further consideration is barred by res judicata. Coleman, supra.

5 Appellant also alleges that the trial court committed reversible error by admitting irrelevant evidence of other crimes and bad acts. This issue has been waived for failure to raise it on direct appeal. Coleman, supra.

6 Appellant next contends that the trial court erred in giving a flight Instruction, erred in giving an erroneous and misleading other crimes Instruction, and failed to give a cautionary Instruction on the status of Vickie Caster as an informant. Once again, however, these issues are waived for review by appellant's failure to raise them on direct appeal. Coleman, supra.

7 Appellant asserts that his sentence of death must be modified to life because the jury was allowed to consider evidence of a dismissed criminal charge in determining whether the aggravating circumstance "continuing threat" existed. This issue is also waived for failure to raise it on direct appeal. Coleman, supra.

8 Appellant argues that the prosecutor diminished the jury's sense of primary responsibility in making a life and death sentence in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Again, this issue is waived by failure to raise it on direct appeal. Coleman, supra.

9 Appellant claims that his sentence must be modified because the evidence was insufficient to prove the aggravating circumstances of "continuing threat" and "the murder was committed for the purpose of avoiding lawful arrest or prosecution." However, these issues were specifically addressed by this Court on direct appeal and further consideration is barred. Coleman, supra.

10 Appellant further contends that this Court has applied and construed the "continuing threat" aggravating circumstance in an arbitrary manner. This issue may not be reviewed because it could have been addressed on direct appeal. Coleman, supra.

11 Appellant next asserts that the trial court erred in failing to instruct the jury on the mitigating factor of "residual doubt", erred in failing to instruct the jury that it had the option of returning a life sentence regardless of its findings respecting aggravating and mitigating circumstances, and its instructions regarding the manner in which the jury was to weigh aggravating and mitigating evidence set forth an improper burden of proof. Insomuch as appellant failed to raise these issues on direct appeal, they are waived. Coleman, supra.

12 Predictably, appellant contends that the trial court erred in finding that he had been afforded effective assistance of counsel on direct appeal. Appellant claims that numerous meritorious errors, some of which are listed above, would have made a difference in the outcome of his appeal. Our review of the performance of appellate counsel, as with trial counsel, is guided by the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The proper standard of performance is that of reasonably effective assistance. This assistance is measured by an objective standard of reasonableness. Id., 466 U.S. at 688, 104 S.Ct. at 2064.

13 Initially, we note that appellate counsel is not required to brief every non-frivolous issue raised in a case. Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr. 1985). As the trial court below noted in the post-conviction appeal, appellate strategy varies from counsel to counsel. What ultimately must be decided is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063. Applying these standards to the present case, we find the performance of appellant's counsel reasonable under prevailing professional norms.

14 Finally, appellant contends that the evidence was insufficient to support the jury's finding that the murder was "especially heinous, atrocious or cruel." We agree. In Stouffer v. State, 742 P.2d 562, 564 (Okl.Cr. 1987), this Court limited this aggravating circumstance to those murders which were preceded by torture or serious physical abuse. Since the record in this case is void of any torture or serious physical abuse suffered by Mr. Fernandez prior to his death, this aggravating circumstance cannot stand. Insomuch as we have found this aggravating circumstance to be invalid, we find appellant's fifteenth and nineteenth propositions of error to be moot.

SENTENCE REVIEW

15 Pursuant to 21 O.S.Supp. 1987 701.13 [21-701.13](C), this Court must conduct a mandatory sentence review. As noted above, we have stricken the aggravating circumstance of heinous, atrocious, or cruel due to insufficient instructions and evidence. In Stouffer v. State, 742 P.2d 562, 564 (Okl.Cr. 1987), this Court held that an independent reweighing of aggravating and mitigating circumstances is implicit to our statutory duty to determine the factual substantiation of the verdict and the validity of the death sentence. See also Castro v. State, 749 P.2d 1146 (Okl.Cr. 1988).

16 We have already found the evidence sufficient to support the jury's finding of the aggravating circumstances that the appellant would constitute a continuing threat to society, that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution and that the defendant was previously convicted of a felony involving the use or threat of violence to the person. See Moore v. State, 736 P.2d 161, 168 (Okl.Cr. 1987).

17 In Clemons v. Mississippi, 494 U.S. ___, ___ 110 S.Ct. 1441, 1449, 108 L.Ed.2d 725, 739 (1990), the United States Supreme Court found nothing in appellate weighing or reweighing of the aggravating and mitigating circumstances that is at odds with contemporary standards of fairness or that is inherently unreliable and likely to result in arbitrary imposition of the death sentence. The Court further stated that appellate courts are not hindered in performing this function without written jury findings concerning mitigating circumstances. Id.

18 In the present case, appellant presented much evidence in mitigation. Examples include the animosity between appellant and the deceased, the love and concern of appellant's family, appellant's drug problem, appellant's record of being a good and likeable worker on his job, appellant's immature behavior around guns, appellant's age, appellant's level of education and the absence of a father figure during his childhood. After discarding the evidence supporting the invalid aggravating circumstance of "especially heinous, atrocious or cruel," and after carefully weighing the remaining aggravating circumstances against the mitigating evidence presented at trial, we find the sentence of death to be factually substantiated and appropriate.

19 Finding no error warranting modification, the judgments and sentences of the District Court of Oklahoma County are AFFIRMED.

LANE, P.J., LUMPKIN, V.P.J., and BRETT, J., concur.

PARKS, J., specially concurs.

*****

PARKS, Presiding Judge., specially concurring:

1 I too agree that Moore's denial of post-conviction relief by the district court should be affirmed. I feel, however, the need to address certain assignments of error raised in the application.

2 The record indicates that the testimony of Vickie Caster, petitioner's accomplice, was corroborated at trial and that the jury was properly instructed concerning the necessary corroboration. 22 O.S. 1981 742 [22-742].

3 The testimony of Van Winkle who worked with the victim at the same motel and of Hermani who was an owner of the motel where the victim worked was admitted to show that the victim feared the petitioner. They each repeated statements by the victim to them demonstrating that Fernandez had become afraid of petitioner. The trial court offered to give the jury an instruction limiting the jury's consideration of the evidence to the victim's state of mind. The defense refused it, therefore, no error resulted. See Moore v. State, 761 P.2d 866 (Okl.Cr. 1988).

4 Petitioner alleges that the trial court erred in admitting evidence of his other crimes and bad acts because they were irrelevant. However, the evidence was relevant to issues at trial and properly admitted under 12 O.S. 1981 2404 [12-2404](B).

5 The instruction on flight was warranted on the evidence surrounding petitioner's departure for Texas following the homicide and his attempted escape when stopped by police officers five or six days later. Douma v. State, 749 P.2d 1163 (Okl.Cr. 1988).

6 Petitioner's assertion that evidence of unadjudicated acts of violence should not be admitted to prove the "continuing threat" aggravating circumstance is not well taken. We have held otherwise. Johnson v. State, 731 P.2d 993 (Okl.Cr. 1987).