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`**CAPITAL CASE**
`
`IN THE
`SUPREME COURT OF THE UNITED STATES
`___________________________
`
`Ronson Bush
`Petitioner,
` v.
`Tommy Sharp, Interim Warden,
`Oklahoma State Penitentiary,
`Respondent
`___________________________
`
`On Petition for Writ of Certiorari to the
`United States Court of Appeals for the Tenth Circuit
`___________________________
`
`
`APPENDIX E
`Direct Appeal Decision of the Oklahoma Court of Criminal Appeals
`
`
`
`
`
`FILED
`IN COURT OF CRIMINAL APPEALS
`STATE OF OKLAHOMA
`
`JUN I d mi
`2012 OK CR 9
`IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA
`MICHAEL S. RICHIE
`CLERK
`
`RONSON KYLE BUSH,
`
`Petitioner,
`
`FOR PUBLICATION
`
`V.
`
`No. DC 2009-1113
`
`THE STATE OF OKLAHOMA,
`
`Respondent.
`
`OPINION
`
`LEWIS, VICE PRESIDING JUDGE:
`
`Tfl Ronson Kyle Bush, was charged with first degree murder in violation
`
`of 21 O.S.Supp.2004, § 701.7(A), and possession of a firearm after former
`
`conviction of a felony in violation of 21 O.S.2001, § 1283, in Grady County
`
`District Court case number CF-2008-371. The State filed a Bill of Particulars
`
`regarding the punishment for first degree murder, which alleged three
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`aggravating circumstances: (1) the murder was especially heinous, atrocious or
`
`cruel; (2) there exists a probability that the defendant would commit criminal
`
`acts of violence such that he would constitute a continuing threat to society;
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`and (3) the murder was committed by the defendant while he was serving a
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`sentence of imprisonment on a conviction for a felony. 21 O.S.2001, § 701.12
`
`(4), (6), and (7).
`
`f2 Bush proceeded to trial on October 19, 2009, before the Honorable
`
`Richard G. Van Dyck, District Judge. After the State had presented its second
`
`App. E-1
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`
`
`witness, on October 22, Bush expressed his desire to enter a blind plea. The
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`trial court conducted a plea hearing and allowed Bush to enter an Alford^ plea
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`to first degree murder and a guilty plea to possession of a firearm after former
`
`conviction of a felony. The next day a non-jury sentencing proceeding
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`commenced pursuant to 21 O.S.2001 701.10(B). Sometime during the first
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`day of sentencing, Bush told the trial court that he wanted to withdraw his
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`pleas, but the trial court denied his motion and advised him to wait until after
`
`being sentenced to move to withdraw the plea. At the conclusion of sentencing
`
`trial Judge Van Dyck found the existence of all three aggravating
`
`circumstances and assessed punishment at death on the first degree murder;
`
`the trial court assessed a life sentence on the firearm charge.
`
`|3 After being sentenced, and within the requisite ten day period. Bush
`
`filed a motion to withdraw his plea on November 9, 2009, the specifics of which
`
`are discussed below in our evaluation of propositions one and two. The trial
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`court held a hearing on the motion and, at the conclusion of the hearing,
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`denied the motion. Bush is now before this Court with his appeal from the
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`trial court's decision and with his appeal from the Judgment and Sentence.^
`
`I. FACTS
`
`^4 On the evening of December 22, 2008, while at Billy Harington's
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`home, Ronson Bush shot Harrington six times with Harrington's .357 caliber
`
`1 North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
`2 Appellant's notice of intent to appeal was timely filed on December 4, 2009, and his Petition
`for Writ of Certiorari was filed with this Court on January 27, 2010. Appellant filed his brief on
`March 31, 2011. The State filed its response brief on July 28, 2011. Appellant's reply brief
`was filed August 17, 2011. Oral argument was held February 28, 2012.
`
`App. E-2
`
`
`
`revolver. Harrington made it to the front yard of the home, where he collapsed.
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`Bush then tied Harrington to the back of his pickup and dragged him into a
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`field near the house.
`
`^5 By all accounts, Harrington and Bush had been best friends for a
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`number of years. Harrington did what he could to aid Bush who dealt with
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`addictions, paranoia, and other related mental illnesses. Harrington's final
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`attempts to assist Bush came just days before the shooting. On December 18,
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`Harrington attempted to take Bush to Griffin Memorial Hospital in Norman,
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`Oklahoma but Bush was exceedingly drunk, and the two men fought during
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`the trip. Harrington left Bush in a parking lot in Norman, and drove on to
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`Tulsa for work. Bush hitched a ride back to Harrington's trailer. When
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`Harrington arrived home that evening, accompanied by Jimmy Harrington, they
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`found Bush passed out on the couch with Harrington's firearms purposefully
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`placed around the house.
`
`1|6 After calling the sheriffs office to send someone to the house,
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`Harrington again agreed to take Bush back to Griffin Memorial Hospital, where
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`Bush voluntarily admitted himself for treatment. Bush, however, on December
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`22, checked himself out of the hospital, called Harrington for a ride, and
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`returned to Harrington's home. Bush drank vodka from a pint bottle
`
`purchased in Blanchard on the way home. Once home, both men shot guns off
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`the porch and played with Harrington's dog. Harrington also gave Bush a
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`haircut.
`
`App. E-3
`
`
`
`|7 Sometime around 7:15 p.m., Harrington was talking on the phone
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`with his girlfriend who could hear Bush in the background. Bush took a
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`photograph of Harrington and nothing seemed amiss; minutes later, however,
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`Bush shot and killed Harrington.
`
`f8 Bush explained that things started downhill when he mentioned
`
`getting Christmas presents for Stephanie Morgan, an ex-girlfriend, and her
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`son. Bush said that Harrington told him that he should forget about Morgan
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`as she was sleeping with other people. According to Bush, Harrington went on
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`to say that even he had "fucked" her. Bush said he then snapped, picked up
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`the .357 revolver, and started shooting Harrington. Bush kept shooting as
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`Harrington got up, went to the kitchen, collapsed, then got up and walked
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`outside.
`
`|9 At around 7:44 p.m. Harrington's mother, Kathy Harrington, tried to
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`call Harrington's cell phone, but Bush answered. Bush kept putting Mrs.
`
`Harrington off, probably because Harrington was already dead.
`
`Mrs.
`
`Harrington called friends who went to the home and discovered Harrington's
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`body in the field.
`
`TllO Bush, in the mean time, left the trailer in Harrington's truck,
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`bought some beer, and drove to Ms. Morgan's home. Bush kicked in the back
`
`door and entered Morgan's unoccupied home. He waited on her to arrive and
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`drank some alcohol from a commemorative bottle she had stored in her
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`bedroom.
`
`App. E-4
`
`
`
`111 Morgan arrived home and was unable to turn on the bedroom
`
`lights. She heard Bush say that he heard her come in. Bush was in the
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`bedroom lying on the bed. Morgan tried to get away by walking out and getting
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`in her car. Bush, however, got in the passenger side. Morgan was finally able
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`to let someone know that Bush was there, get him out of the car, and drive
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`away.
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`%12 Authorities arrived at Morgan's home, and Bush was arrested for
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`violating a protective order Morgan had against him. Bush, at the time of the
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`arrest, confessed to shooting Harrington.
`
`II. ISSUES RELATING TO MOTION TO WITHDRAW
`
`^13 In propositions one and two. Bush argues that he entered his Alford
`
`and guilty pleas due to ignorance, inadvertence, misunderstanding and
`
`misinformation and he was deprived of effective assistance of counsel in
`
`pursuing his motion to withdraw those pleas. The State claims that Bush has
`
`waived any attacks on the plea proceedings, because he told the trial court that
`
`he did not want to withdraw his pleas.
`
`114 In response, Bush counters that the record is, at least, unclear
`
`regarding his desire to seek to withdraw his pleas, and moreover, if he intended
`
`to waive his right to appeal the guilty plea, the proper procedure to determine
`
`his competency to do so was not followed.
`
`T|I5 Bush bases his claim of ignorance, inadvertence, misunderstanding
`
`and misinformation on discussions between Bush and the trial court. Bush
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`stated that he wanted to waive jury trial and enter the plea so that his and the
`
`App. E-5
`
`
`
`victim's family would not have to go through the pain of testifying. Then,
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`showing his misunderstanding of the law, Bush was allegedly surprised to find
`
`that the family members would be required to testify during the sentencing
`
`stage, so he told the Court he wanted to withdraw his pleas, because the thing
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`he wanted to avoid was happening anjovay.
`
`fl6 Bush explained that he was not aware that the family members
`
`would be testifying during the second stage and that he wanted to withdraw his
`
`plea. He explained that he had evidence that was relevant for first stage to
`
`show that he did not commit the murder with premeditation.
`
`117 The trial court, in the exercise of its discretion, denied Bush's oral
`
`motion to withdraw and informed him that he could file a motion to withdraw
`
`his pleas after sentencing if he chose to do so. While a trial court may allow a
`
`guilty plea to be withdrawn anytime before judgment, 21 O.S.2001, § 517,
`
`there is no right to appeal a decision denying the motion in an interlocutory
`
`manner. See Nguyen v. State, 1989 OK OR 6, ^^1 6-7, 772 P.2d 401, 403,
`
`overruled on other grounds in Gonseth v. State, 1994 OK CR 9, 871 P.2d 51
`
`(excepting guilty pleas that result in a deferment of judgment or "deferred
`
`sentence"). A defendant may always seek to withdraw his plea within ten days
`
`after the entry of judgment and sentence by following Rule 4.2, Rules of the
`
`Oklahoma Court of Criminal Appeals, Title 22, Ch.l8, App. (2012).
`
`fl8 Bush followed the procedure of Rule 4.2 and filed a motion to
`
`withdraw his plea soon after he was sentenced. He reurged his claim that his
`
`plea was entered through inadvertence, ignorance or mistake. He further
`
`App. E-6
`
`
`
`claimed the pleas were not knowingly and voluntarily entered; the pleas were
`
`entered due to coercion; the sentences were excessive; he was not mentally
`
`competent to enter the pleas, nor was he competent at the time of the crime;
`
`and he was deprived of effective assistance of counsel during the proceedings.
`
`119 The trial court set a hearing date for the motion and conflict counsel
`
`was appointed to represent Bush at the hearing. Counsel for Bush told the
`
`trial court that Bush did not wish him to call any witnesses, so he would stand
`
`on the motion. Bush, however, did testify during the hearing. Bush was
`
`questioned about every claim in the motion to withdraw plea which was filed by
`
`trial counsel. Bush disavowed all of the claims in the motion and specifically
`
`told the trial court that he did not want to withdraw his pleas to the crimes.
`
`The trial court, consequently, denied Bush's motion to withdraw the pleas.
`
`Bush now seeks to appeal the trial court's ruling and he claims that if a trial
`
`were to take place, he could present evidence that he was acting under a heat
`
`of passion and that he had a defense of intoxication.
`
`^20 At this stage of the proceeding, it is clear that Bush did not want to
`
`withdraw his pleas during the hearing on his motion to withdraw. He waived
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`all of the claims set forth in the motion. The trial court had no choice but to
`
`deny the motion, because Bush stated that he knew what he was doing when
`
`he entered his Alford and guilty pleas and there was no evidence to dispute the
`
`finding that Bush was competent to enter his pleas.
`
`^21 Bush's actions at the withdrawal hearing require this Court to find
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`that he has waived his right to appeal the denial of his motion to withdraw. On
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`7
`
`App. E-7
`
`
`
`appeal, however, Bush tries to paint this Court into a corner by arguing that, if
`
`he waived his appeal, we must necessarily find that the trial court failed to
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`order an independent competency evaluation to determine whether Bush was
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`competent to waive his appeal.
`
`TI22 An independent competency evaluation is not necessary in this
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`case, because Bush has not waived his right to appeal his entire case. Unlike
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`the defendants in Fluke v. State, 2000 OK OR 19, 14 P.3d 565 and Grasso v.
`
`State, 1993 OK OR 33, 857 P.2d 802, who asked for the death penalty by
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`stipulating to the aggravating circumstances and waiving the presentation of
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`mitigating evidence, and were required to undergo competency evaluations,
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`Bush did not ask for the death penalty, nor has he affirmatively waived his
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`right to appeal sentencing issues in this case.^
`
`%23 In capital cases, there are two trial stages; the first stage determines
`
`guilt/innocence issues on capital crimes alleged in the Information, and the
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`second stage determines sentencing issues as alleged in the bill of particulars,
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`i.e. whether the alleged aggravators are proven beyond a reasonable doubt and
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`whether the aggravating circumstances outweigh the mitigating factors. Here,
`
`Bush pled guilty to the Information, but did not plead guilty or stipulate to the
`
`3 Also see Wallace v. State, 1995 OK CR 19, 893 P.2d 504 (where defendant pled guilty to the
`crimes, waived the presentation of mitigation evidence, asked for the death penalty, and waived
`his rights to appe^); Magnan v. State, 2009 OK CR 16, 207 P.3d 397 (pled guilty to three
`counts of first degree murder, and at sentencing, stipulated to the aggravating circumstances,
`waived the presentation of mitigation, waived any direct appeal, and demanded to be sentenced
`to death for the murders); Duty v. State, 2004 OK CR 20, 89 P.3d 1158, (plead guilty to
`information, stipulated to the aggravating circumstances, waived mitigation, asked for the
`death penalty and waived his direct appeal).
`
`8
`
`App. E-8
`
`
`
`bill of particulars. Thus he has not waived all issues arising in the trial of the
`
`bill of particulars, i.e., the sentencing stage as those issues properly preserved
`
`during the sentencing trial are ripe for review.
`
`^24 This case closely resembles the more recent case of Thacker v. State,
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`2004 OK CR 32, 100 P.3d 1052, where the defendant pled guilty to the crimes,
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`and faced a non-jury sentencing proceeding. In Thacker, like this case, the
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`State presented evidence of aggravating circumstances and the defendant
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`presented evidence in mitigation. The defendant, in Thacker, did not move to
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`withdraw his guilty plea; however, this Court was required to complete a
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`mandatory sentence review.
`
`In Thacker, no independent competency
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`determination was required because the defendant was not volunteering for the
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`death penalty. The defendant, however, had undergone examination by mental
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`health experts for purposes of mitigation. Id. ^ 36, 100 P.3d at 1060.
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`T|25 In this case, we presume that Bush is competent. 22 O.S.2001, §
`
`1175.4. No one in this case raised any doubt about Bush's competency by
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`filing a proper application for determination of competency pursuant to 22
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`O.S.2001, § 1175.2, until after he had pled guilty. Even that application
`
`lacked specific facts sufficient to raise a doubt as to Bush's competency other
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`than to state that previous (trial) counsel believed Bush to be incompetent. At
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`the withdrawal hearing, counsel appointed to pursue the motion to withdraw
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`stated that he believed Bush to be competent, and had no reason to doubt his
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`competence.
`
`App. E-9
`
`
`
`|26 At the conclusion of the withdrawal hearing, the trial court made a
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`finding that Bush was competent at the plea hearing and that he is "fully
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`competent today." Further, no evidence of incompetence was presented at any
`
`time. Obviously, the trial court, who must make the initial finding, did not
`
`believe that any doubt existed about Bush's competency. See 22 O.S.2001, §
`
`1175.3.
`
`1[27 This competency discussion goes to illustrate that Bush was
`
`competent to make decisions in this case, and he was not shy about doing so.
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`It is obvious that, at the time of the hearing on the motion to withdraw (which
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`is the last time Bush was heard in open court), Bush was ready and willing to
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`accept his conviction and the sentence of death.
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`T[28 However, even though Bush was willing to accept his judgment and
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`sentence, he now claims in proposition seven, that there was an insufficient
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`factual basis to support the Alford plea to first degree murder. In as much as
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`this was not argued at the motion to withdraw hearing and the fact that Bush
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`did not want to withdraw his plea, this issue is waived. Rule 4.2(B), Rules of
`
`the Oklahoma Court of Criminal Appeals, Title 22, Ch.l8, App. (2012).
`
`|29 Even so, the factual basis was more than sufficient. The factual
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`basis of the plea must be sufficient so that the trial court can test whether the
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`plea is being entered intelligently. North Carolina v. Alford, 400 U.S. 25, 37-38,
`
`91 S.Ct. 160, 167-68, 27 L.Ed.2d 162, 171-72 (1970). The factual basis is also
`
`a means by which a court can know that it is not convicting a person innocent
`
`of the charges. See Loyoza v. State, 1996 OK CR 55, If 41, 932 P.2d 22, 34.
`
`10
`
`App. E-10
`
`
`
`TfSO In this case, the trial court relied on the preliminary hearing
`
`evidence, Bush's statements to law enforcement officers, and the extent of the
`
`trial evidence presented prior to the plea. It is noted that the State made an
`
`opening statement to the jury indicating what the evidence would show. This
`
`is really all that is required in an Alford plea. See Wester v. State, 1988 OK CR
`
`126, T[ 4, 764 P.2d 884, 887 (opinion on rehearing).
`
`III. SENTENCING ISSUES
`
`^31 Bush claims in proposition three that there was insufficient
`
`evidence to support the trial court's finding of two of the aggravating
`
`circumstances: that the murder was especially heinous, atrocious, or cruel,
`
`and that there existed a probability that Bush would commit criminal acts of
`
`violence such that he would constitute a continuing threat to society. See 21
`
`O.S.2001, § 701.12. When the sufficiency of the evidence supporting an
`
`aggravator is challenged on appeal, we review the evidence in the light most
`
`favorable to the State to determine whether any rational trier of fact could have
`
`found the facts necessary to support the aggravating circumstance beyond a
`
`reasonable doubt. DeRosa v. State, 2004 OK CR 19, ^ 85, 89 P.3d 1124,
`
`1153. This issue is always reviewable due to our mandated sentence review set
`
`forth at 21 O.S.2001, §701.13.
`
`T|32 This Court upholds a finding of the heinous, atrocious, or cruel
`
`aggravating circumstance when there is proof of serious physical abuse where
`
`the victim experiences conscious physical suffering before death. Coddington v.
`
`State, 2011 OK CR 17, ^ 59, 254 P.3d 684, 708-09. The aggravating
`
`11
`
`App. E-11
`
`
`
`circumstance is also supported when the defendant inflicts torture, including
`
`great physical anguish or extreme mental cruelty. Id. In the present case, the
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`trial court found that the bullet wounds created "great pain" and concluded
`
`that Harrington endured conscious physical suffering resulting in great
`
`physical anguish. The trial court also found that Bush was indifferent to the
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`suffering of Harrington.
`
`|33 The evidence in this case indicated that Harrington was initially
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`shot while sitting on a recliner, but he did not die immediately. Harrington
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`suffered six gunshot wounds. Three of the wounds were to the right arm,
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`including a close contact wound. One shot was to the left arm. The other two
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`shots entered from the rear of Harrington's body, one just grazed the neck and
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`the other was the fatal wound to the back, which entered Harrington's back
`
`lacerating the liver, diaphragm and right lung. A blood trail indicates that
`
`Harrington walked to the kitchen sink, and then went outside to the front yard.
`
`Harrington might have been shot as he was moving between these locations.
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`The order of gunshot wounds was not determined by the medical examiner,
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`but, according to the medical examiner, the victim could have lived for several
`
`minutes after the fatal shot.
`
`^34 The trial court did indicate that Bush dragged Harrington behind
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`his pickup "in a heinous and atrocious manner with extreme cruelty."
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`However, Appellant argues, there was no evidence that Harrington was
`
`conscious as he was being dragged. Even if we assume that Harrington was
`
`unconscious during the dragging, the amount of suffering which occurred
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`12
`
`App. E-12
`
`
`
`before the dragging is sufficient to support the trial court's finding of conscious
`
`physical suffering.
`
`^35 Appellant also argues that the act of the shooting itself cannot
`
`support this aggravating circumstance. Appellant cites Cudjo v. State, 1996
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`OK CR 43, T[ 29, 925 P.2d 895, 901-02,where the victim was shot in the back
`
`of the head, but did not immediately succumb to the injury. Instead, the
`
`victim told police he was okay, but later experienced nausea, vomiting, and a
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`headache. After arriving at the hospital, the victim became unresponsive. This
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`Court held that the evidence was insufficient to support the heinous atrocious
`
`or cruel aggravating circumstance. In Cudjo, this Court reasoned that all
`
`murders contain some kind of physical abuse, but only murders which involve
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`serious physical abuse are especially heinous, atrocious, or cruel.
`
`|36 Appellant also cites Cheney v. State, 1995 OK CR 72, Tf 17, 909 P.2d
`
`74, 80, and Hawkins v. State, 1994 OK CR 83, ^ 43, 891 P.2d 586, 596-97, to
`
`show that the shooting itself could not support the heinous, atrocious or cruel
`
`aggravating circumstance. In Cheney the victim and her defendant husband
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`were having an argument. The victim sprayed her husband with mace, and
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`then ran. The defendant chased her and shot her several times. The shooting
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`lasted only seconds and some of the wounds would have rendered her
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`immediately unconscious.
`
`This Court struck this sole aggravating
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`circumstance.
`
`We note that Appellant fails to offer public domain citations including citation to the specific
`paragraph therein.
`
`13
`
`App. E-13
`
`
`
`f37 In Hawkins, this Court found that the death was preceded by the
`
`infliction of extreme mental cruelty, even if it lacked serious physical abuse;
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`therefore, the aggravating circumstance was affirmed. In that case, however,
`
`this Court noted that serious physical abuse could be gratuitous violence
`
`beyond the act of killing. Id. In Browning v. State, 2006 OK CR 8, | 50, 134
`
`P.3d 816, 843, however, this Court noted that no definition of "serious physical
`
`abuse" has been adopted, "including the one in Hawkins . . . ."
`
`^38 Appellant also cites Washington v. State, 1999 OK CR 22, 989 P.2d
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`960. However, in Washington, this Court found that there was evidence of the
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`aggravating circumstance, although the Court stated that the evidence was
`
`weak because the victim suffered less than a minute. Id. T[T[ 48-49, 989 P.2d at
`
`975. The victim in Washington was shot eight times, with no clear evidence of
`
`the order of the shots. Two wounds were shots to the head which would have
`
`caused immediate unconsciousness. The State's theory, supported by the
`
`evidence, was that the victim was shot in the leg and then crawled under a
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`table where she was fatally shot in the head.
`
`|39 In Simpson v. State, 2010 OK CR 6, ^ 43, 230 P.2d 888, 902-03,
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`cited by the State, this Court found the evidence sufficient for this aggravating
`
`circumstance where one victim received four gunshot wounds, only one of
`
`which was fatal. In Simpson the victim was able to speak to others, knew he
`
`had been shot, and was fearful the defendants would return. The aggravating
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`circumstance was stricken with regard to the other victim in Simpson, because
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`the evidence was that the victim died within seconds of being shot.
`
`14
`
`App. E-14
`
`
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`Tf40 The evidence in this case is analogous to the evidence is Simpson.
`
`Here the evidence established that Harrington survived his gunshot wounds for
`
`a period of time. The medical examiner testified that the wounds suffered
`
`would be painful. The injuries included fractured bones in both arms due to
`
`the gunshot wounds; a grazing wound to the neck; and the injuries to the liver
`
`and lungs due to gunshot wounds. The wound to the lung and liver would
`
`have caused difficult and uncomfortable breathing. The trial court was very
`
`careful in its own questioning of the Medical Examiner to clarify that
`
`Harrington would not have become immediately unconscious due to any
`
`particular gunshot wound, nor due to the effect of the totality of the gunshot
`
`wounds. We find there was sufficient evidence from which the trial court could
`
`find, beyond a reasonable doubt, that the murder was especially heinous,
`
`atrocious or cruel.
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`^41 Having found sufficient evidence for this aggravating circumstance,
`
`we must address Bush's claim, raised in proposition eight, that the heinous,
`
`atrocious, or cruel aggravating circumstance is unconstitutionally vague and
`
`overbroad as it is currently applied. This Court has consistently held that this
`
`aggravating circumstance sufficiently narrows the class of murders that are
`
`eligible for the death penalty so as to pass constitutional muster. See e.g.
`
`Magnan, 2009 OK OR 16, H 37, 207 P.3d at 408. We will not revisit this issue
`
`here.
`
`1(42 Bush's attack on the sufficiency of evidence for the continuing
`
`threat aggravating circumstance is also unavailing. The continuing threat
`
`15
`
`App. E-15
`
`
`
`aggravating circumstance requires a finding that a defendant's behavior has
`
`demonstrated a threat to society and a finding that there is a probability that
`
`this threat will continue to exist in the future. Grissom v. State, 2011 OK CR 3,
`
`H 61, 253 P.3d 969, 990. This aggravating circumstance may be proven by
`
`evidence of prior convictions, unadjudicated offenses, the nature of the crime
`
`itself, or any other relevant evidence. Id.; Magnan, 2009 OK CR 16, 131, 207
`
`P.3d at 407.
`
`143 The State argues, for the most part, that the callous nature of the
`
`offense is enough to support this aggravating circumstance. The State's
`
`argument finds support in this Court's previous cases where the callous nature
`
`of the offense as well as other factors were used to support the continuing
`
`threat aggravating circumstance. See Grissom, 2011 OK CR 3, 1 61, 253 P.3d
`
`at 990; also see Goode v. State, 2010 OK CR 10, 1 99, 236 P.3d 671,
`
`689 (callous nature of the offense as well as prior violent felonies)
`
`144 The State has not identified any particular violent act that Bush
`
`committed prior to this crime. The only indication of prior violence is the fact
`
`that Stephanie Morgan stated that Bush becomes violent when he drinks and
`
`uses drugs, and she received a protective order against him. She said he had
`
`not committed assaults on her, except for pushing her once. She also stated
`
`that he threatened to kill any other men she dated.
`
`145 Other evidence supporting the continuing threat aggravating
`
`circumstance was that, after the offense. Bush went to Morgan's home, kicked
`
`in the back door, went inside, disabled the bedroom lights, reclined on the bed.
`
`16
`
`App. E-16
`
`
`
`and waited for her in the dark. Morgan was afraid and Bush followed her to
`
`her car and she could not get him out of the car.
`
`^46 The State also presented evidence that, after being arrested for this
`
`murder, Bush was attempting to escape from the Grady County jail. Bush and
`
`another inmate pried away a screen on a window and used a metal rod to chip
`
`away at the mortar around the window. Bush also damaged a toilet and
`
`shower in an apparent attempt to get through a wall in his single cell. At one
`
`point, jailers also found, after searching Bush's cell, a homemade shank made
`
`from paper.
`
`|47 Evidence showed that the downward spiral of Bush's life seems to
`
`coincide with his meeting Morgan in June, 2008. Bush's path to this violent
`
`act, however, started much earlier than the summer before this murder, when
`
`he met Morgan. Bush had convictions for second degree burglary in 1997 and
`
`credit card theft in 1999. These offenses involved thefts from family members.
`
`Bush finally found himself sentenced to prison for uttering forged instruments
`
`and possession of stolen property, which also involved thefts from family
`
`members. He was released from prison in September 2007. These non-violent
`
`offenses allegedly were committed in order to fund Bush's drug and alcohol
`
`addictions.
`
`T[48 He started dating Stephanie Morgan in June of 2008. During the
`
`relationship he was drinking and using drugs. At first he denied having an
`
`addiction, but finally admitted to using "ice." He became violent, so violent
`
`that Ms. Morgan sought and received a victim protective order in December
`
`17
`
`App. E-17
`
`
`
`2008. Bush was continually accusing Morgan of being unfaithful and
`
`threatened to kill anyone who made advances toward her.
`
`|49 The main question here that the trial court had to ask itself was
`
`whether Bush is a continuing threat to society? The evidence, including this
`
`offense, his history of drug and alcohol abuse, his history of paranoid and
`
`obsessive behavior, and finally his failed attempts to escape, point to a
`
`conclusion that Bush is a continuing threat. More specifically, there is an
`
`existence of a probability that Bush will commit criminal acts of violence that
`
`would constitute a continuing threat to society.
`
`TfSO There was sufficient evidence for the trial court to make this finding.
`
`The most convincing evidence of this is the fact that Bush killed his best friend
`
`and had no care in the world about what he had just done. His alleged reasons
`
`for killing Harrington were all figments of his imagination. Bush has exhibited
`
`delusional behavior in the past by imagining that Hispanic gang members were
`
`after him. He also indicated a willingness to disregard the law by attempting to
`
`escape from the county jail.
`
`|51 The trial court could not take a chance and say that there was no
`
`probability that Bush would commit criminal acts of violence that would
`
`constitute a continuing threat to society. Instead, the trial court found that a
`
`probability did exist, based on the nature of the offense and Bush's prior
`
`behavior. The continuing threat aggravating circumstance is supported by the
`
`evidence.
`
`18
`
`App. E-18
`
`
`
`|52 In addition to arguments attacking the aggravating circumstances,
`
`Bush also argues that the trial court's sentencing decision was influenced by
`
`improper and inadmissible evidence. In proposition four, Bush claims that the
`
`trial court considered improper testimony from a jail-house snitch during the
`
`sentencing proceedings. The trial court sustained Bush's motion to bar the
`
`witness's testimony because no notice was given to Bush regarding the
`
`evidence in aggravation. See 22 O.S.2001, § 701.10. Regardless, Bush argues,
`
`the trial court allowed the State to give an offer of proof regarding the expected
`
`testimony of informant Jackie Nash. It is this offer of proof that Bush now
`
`argues influenced the trial court, in part, in sentencing Bush to the penalty of
`
`death.
`
`153 Bush first argues that the offer of proof was improperly given
`
`because there was no need for the State to preserve the evidence with an offer
`
`of proof, as the State would not be appealing Bush's sentence. Even if the offer
`
`of proof was improperly given, Bush must overcome the presumption that the
`
`trial court only considered competent and admissible evidence in reaching its
`
`decision. See Long v. State, 2003 OK CR 14, ^ 4, 74 P.3d 105, 107.
`
`^54 In Long, the trial court listened to an audio tape during a
`
`suppression hearing, after which the trial court suppressed the tape. The trial
`
`court went on to conduct a non-jury trial. The defendant in Long could not
`
`overcome the presumption that the trial court did not consider improper
`
`evidence during the trial. Id.
`
`19
`
`App. E-19
`
`
`
`^55 Here, the evidence proffered was intended to support the continuing
`
`threat aggravating circumstance. The State indicated that Nash would testify
`
`that Bush told him that he deliberately intended to kill Harrington and had
`
`planned it for several days; he went to detox to get his head straight before
`
`carrying out his plan; he held him hostage trying to make him confess to
`
`having a sexual relationship with Morgan; he finally shot Harrington in the arm
`
`while holding the gun to Harrington's shoulder; Harrington reached forward
`
`and Bush shot him again.
`
`^56 Bush told him that Harrington went outside and Bush believed that
`
`Harrington was still alive when he dragged him behind the pickup; Bush said
`
`he wasn't drunk, but drank afterward and intended to use intoxication as a
`
`defense; according to Nash, Bush bragged about his escape attempts; he
`
`planned a third escape by digging around the toilet and shower, damaging
`
`them; he said he intended to escape on his way to court and kill a guard or
`
`whomever necessary in order to get away. Nash indicated that Bush showed
`
`no remorse and laughed about killing Harrington.
`
`157 The offer of proof contained evidence otherwise unkn
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