*1 BOUTWELL, Appellant, John Kenneth Oklahoma, Appellee.
The STATE of Oklahoma. Appeals Criminal
Feb. 1983.
tim, then before fired a fifth making away, to insure Devol’s death.
I
confession
asserts that his
*3
find
fruit of an
arrest. We
illegal
was the
to be
Title
argument
without merit.
O.S.1981, 196(3), provides
may
an officer
§
warrant,
make an arrest without a
“[w]hen
committed,
in fact
and he
felony
has
been
per-
the
believing
reasonable cause for
has
have
it.”
arrested to
committed
son
car
Boutwell was
while in a
arrested
the
the auto
description
which matched
ar
connected to the homicide. The
mobile
officer, who
that
resting
had information
had been
several
the crime
committed
males,
approximately
made the arrest
white
killing.
and one-half hours after
the
two
Defender,
Jordan,
Rob-
Hurley
T.
Public
him
cognizance
gave
of these facts
His
Ravitz,
ert A.
Defender,
Asst. Public
Okla-
See,
to
arrest.
justify
cause
the
probable
City,
appellant.
homa
McLemore,
(Okl.Cr.
State
Gen.,
Eric
State of
Cartwright, Atty.
Jan
1977).
Oklahoma,
Alexander,
Atty.
Asst.
C. Elaine
also
that his confes-
appellant
argues
The
Gen.,
appellee.
City,
Oklahoma
involuntary. He claims he
sion was
to
right
of his
only qualifiedly informed
OPINION
present.
the in cam-
attorney
At
have
CORNISH, Judge:
trial
that
the
hearing the
court found
era
voluntary;
appellant’s statement was
Kenneth
was tried and
John
Boutwell
fully advised of his constitu-
County Dis- he had been
by jury
convicted
in Oklahoma
affirmatively
waived
rights
The
tional
had
Degree
Murder.
trict Court
First
record also
the
of counsel. The
presence
jury,
which recommended
had
interviewing
officer
sentence,
statutory
shows
found that
three
death
questions
it clear that
would
present:
were
made
no
circumstances
aggravating
present,
attorney
him until an
the mur-
asked of
(1)
the defendant committed
desired one.
appellant
of re-
if the
promise
or the
der for remuneration
to commit
or
another
employed
muneration
the in camera
presented at
Evidence
promise
for remuneration or
the murder
to the inter-
hearing
prior
indicated that
remuneration;
murder was
(2) that
attorney
hired
view
cruel;
heinous, atrocious,
especially
father,
si-
to remain
had advised Boutwell
for the
committed
(3) that
murder was
the Miranda
being
After
informed of
lent.
a lawful
preventing
purpose
avoiding
to
this known
appellant
made
rights,
or prosecution.
arrest
detective,
had
purpose
whose
police
interrogate
concerning robber-
clerk dur-
to
him
a store
been
appellant
murdered
When told
to this
Grocery
unrelated
offense.
robbery
Dee’s
ies
of Little
ing
leave.
this,
began
detective
to
robbery,
appellant
Market. Before the
and asked
clerk,
stopped him
appellant,
his three friends decided
The detec-
wanted
discuss.
they what he had
Devol,
so that
be killed
David
other
he had
to discuss
told him
wanted
appel-
tive
not be later
would
identified.
he
City, but
vic-
in Oklahoma
into the
robberies
initially fired four shots
lant
not
light
talk to him further
of his
could
conversations with the police. [Emphasis
attorney’s advice. The
then told
added, footnote omitted.]
he
attorney,
him that
did not want an
At
hearing
the in camera
the detective
one,
he himself had not hired
that he
testified he was aware that the accused had
speak
again
would
to him.
Boutwell
already
right
silent,
invoked his
to remain
of his
rights
informed
constitutional
but
question
his intention
appel-
he
appel-
indicated
understood them. The
lant about offenses unrelated to the rob-
lant told the detective that
he had
bery-murder.
Michigan
In
Mosley,
in any
involved
robberies
than the
“other
(1975),
U.S.
46 L.Ed.2d
S.Ct.
night,” meaning
other
the conve-
one at
Supreme
Court concluded
ad-
nience store.
missibility of statements obtained
after
emphasize
appellant,
that the
before
person
custody
had decided to remain
statements,
making any inculpatory,
told
silent
under
depends
Miranda on whether
*4
the detective that he did not
his fa-
want
cut
“right
his
to
off questioning” was “scru-
to bear the expense
retaining
ther
coun-
pulously honored.” There the Court found
that
go
sel and
he would
and talk.
ahead
subsequent questioning
that
about an unre-
Furthermore,
he had
testimony shows
homicide, accompanied
lated
by complete
he
attorney
indicated
understood an
would
warnings,
Miranda
was' consistent with
appointed
represent
to
him if he could
interpretation
reasonable
of the accused’s
not
one.
afford
-earlier
to
any questions
refusal
answer
about
the robberies
which he had been
Supreme
The U.S.
Court
its recent
in
The introduction of
arrested.
the confes-
Arizona,
decision
Edwards v.
451 U.S.
sion
prosecution
during
to the murder
taken
477,
1880,
(1981),
101 S.Ct.
68
378
L.Ed.2d
subsequent questioning
did not violate
held
a waiver of the
to counsel
right
Miranda.
only must be voluntary,
not
but must also
a knowing
intelligent
constitute
and
relin-
similarly
We
find here that
privilege.
of a known
quishment
right or
appellant’s previously
right
invoked
to re
held
The Court
that the
for deter-
standard
main silent was not
violated
the detec
mining waiver of
focuses
right
to counsel
questioning
subsequent
tive’s
about unrelat
right
on
his
whether
accused understood
Further,
ed
the appellant,
offenses.
rather
knowingly
and intelligently
to counsel
invoking
right
than
his
to have counsel
relinquished it. The
Court said
Edwards
present,
expressed his
unequivocally
desire
Supreme
ap-
Arizona
to
detective without
talk to the
counsel.
plied
they
erroneous standard in
appellant’s
conduct indicates he com-
on the
the confes-
focused
voluntariness of
prehended
right
present
his
to have counsel
Additionally,
sion.
Court stated:
relinquished it.
knowingly
The waiver
now hold
an accused
. ..
that when
[W]e
present
have counsel
his
right
his
to
right
has invoked his
to
counsel
have
were not made under circum-
confession
interrogation,
custodial
present
pressures to talk weighed
stances where
valid waiver of that
be es-
right cannot
See,
against
confessing.
his
to resist
power
he re-
by showing only
tablished
Estelle,
(5th Cir.1979);
Jurek v.
II
(Okl.Cr.1979). We
appellant next claims he
of these
relevancy
fail
see the
exhibits
process of law because Juror
denied due
victim’s
at
identity
because the
was not
was not excused
cause. She
Nichols
increasing frequency prosecu-
issue. With
ultimately
excused on defense counsel’s
have
introducing
tors
this state
reading
From a
peremptory challenge.
vic-
purpose photographs
no relevant
dire it is clear that she
voir
were
This
they
tims taken when
alive.
irrevocably
imposing
committed
bearing
cease as it has little
practice should
death
stated that
penalty. She
guilt
or innocence to be
on
issues
depend
would
on the
penalty
the death
case,
decided
the trier of fact.
In this
everyone
circumstances
“[n]ot
however, when considered with the over-
Fur
get
penalty
the death
...."
should
accused,
whelming
against
evidence
thermore,
to the
response “probably”
these items would not have had the tenden-
question
penalty
of whether
the death
prejudice
jury.
cy
unduly
premeditated
in a
kill
appropriate
would be
ing
of her
equivocal, especially
light
expressed
circum
desire to consider the
IV
stances.
assignment
In his fourth
error
Illinois,
In Witherspoon v.
391 U.S.
appellant claims
the trial court should
(1968),
88 S.Ct.
committed has that, based he had testified on discussions family, with it to the he believed trial court Accordingly, we find the pedi of the representation family accurate did err in refusing not excuse Juror gree. Nichols for cause. The outline appellant asserts III pedi- should have been admitted under the subject of commonality Because of rule, mat- citing to the In gree exception hearsay
ter, III Propositions we shall consider Estate, P.2d Re Hamm’s 186 Okl.Cr. VI together. (1940). proper A foundation for the however, laid; exhibit, not the trial appellant assigns The as error the acted within its discretion- court therefore 1, 12, admission of State’s Exhibits No. ary powers excluding in the exhibit. photograph 27. Exhibit No. 1 was a color the floor depicting lying victim dead on of photograph the convenience store. This V in it the relative probative showed of appellant challenges The admission position points entry body which had been gun money probative We its gunshot wounds. find gun, the car. later identi- seized from The outweighed effect and any prejudicial value a weapon, fied as the murder owned properly it was admitted. therefore It was of the co-defendants. brother one State, (Okl.Cr. P.2d Glidewell v. car; money in found the trunk of 1981). in the front seat cushion. found stuffed were appellant argues that these items Exhibits No. 12 and 27 The
State’s
impermissibly broad inven-
during
were
the victim taken while
seized
photographs of
ques-
of this
photo
tory
search.
resolution
he was alive. The admission
tion,
scope
turns
on the
within
graphs
generally
into evidence
falls
search,
but rather on the
stand-
VI
object
ing
to warrantless seizure.
next asserts that
hypothetical question
prosecutor
A criminal defendant cannot be af
propounded of Dr. Van OsDol on cross-ex
forded advantages
rights
privileg
of the
amination
stage
first
of the trial
State,
es personal to another. Holman v.
was improper. Dr. Van OsDol was asked
tutional not be defense raised the vicariously of insanity; challenged thus the line of person asserted. A who is aggrieved by inquiry pertained explanation which to an an illegal only search and seizure through diagnosis schizophrenia of latent fell the introduction of damaging evidence scope within the of cross-examination. secured by a search of a third person’s premises property has not had any of find Instruction Nos. 7 and his Fourth rights Amendment infringed. 8, requested by the defense to cure the And since the exclusionary above, rule is an at- alleged error were properly refused. Our tempt guarantees holding to effectuate the Thomsen v. 582 P.2d (Okl.Cr.1978), issue, on this same con Amendment, Fourth it is proper per- In requested trols. both cases the defense only mit defendants whose Fourth *6 the receive jury instructions on what Amendment rights have been violated to the legal Guilty effect is of a verdict of Not benefit from the protections. rule’s [Ci- in by Insanity. appellant Reason of The tations omitted.] Thomsen, here, Laws, 1975, as relied on ch. Therefore, we rule that the appel 92, 1, O.S.1981, 1161, 22 now as authori § § standing lant lacked to challenge the search then, ty for the instruction. As we stated 1 because he had neither a property nor a merely procedural this statute is a state car, possessory interest in the nor an inter ment of disposition subsequent to the ver See, in property est the seized. Robson v. process dict. As such it is immaterial to the State, (Okl.Cr.1980). rendering concerning sanity of a verdict the O.S.1981, 1161, provides: charged, 1. Title 22 the commission of the crime such § person discharged be shall from further cus- by person An act done a in a state of tody grounds unless the court has reasonable insanity punished public cannot be as a of- person presently to believe that said is men- fense, tried, person adjudged nor can a be tally ill and that the release of such individual punishment, offense, punished public or for a dangerous public peace would be to the or she, be, insane; may he while or as the case is event, safety. attorney In that the district any but where in criminal action indictT prepare, sign peti- shall forthwith and file a insanity ment or information the defense of is alleged tion commitment interposed for the of said men- singly conjunction either in tally person. defense, ill al- jury Determination of such with some other the must state illness, verdict, leged acquittal, mental commitment and dis- in the if it is one of wheth- pursuant proce- charge acquitted made er or not the shall be to the defendant is on the ground insanity of dure set forth in the Law, Mental Health and where the defendant Oklahoma she, 43A, Statutes, acquitted ground is on the that he or as Title Oklahoma Sections be, 54-82, may the case was insane at the time of inclusive. 328 Therefore, person committed the assignment this where murder
of the accused.
“[t]he
of
promise
remuneration or the
remu-
of error is without merit.
another to commit the
employed
neration
VII
promise
for remuneration or the
of
murder
remuneration.”
appellant argues
The
his
directed verdict should have
motion for
argues that
this instruction
The State
He
that evidence
been sustained.
contends
appellant
the
appropriate
was
because
The rec
of
went uncontroverted.
insanity
arrested
another co-defendant
with
ord,
shows that
State’s
approximately
car in
sev-
while in a
which
cross-examination,
wit
medical
expert
money
of
was recov-
enty percent
the stolen
knew at
appellant
ness testified
ered.
wrong
crime
it was
time of the
circumstances
aggravating
and murder. A
robbery
commit an armed
normally ap
verdict admits
of murder for remuneration
motion for a directed
which the
to the hiree of a
the facts
to the hired killer or
argument
plied
sake of
State,
Renfro v.
v.
prove.
tends to
hired killer. See McManus
State’s evidence
(Tex.Cr.1979); Doty
trial
607 P.2d
S.W.2d
Here,
(Tex.Cr.1979).
because
even
correctly denied the motion
court
S.W.2d
supported
in
reasonably
though
agreed
evidence
it was
advance
competent
killed,
would be
it cannot
said
charge.
clerk
“hired”
his co-defend
appellant
VIII
Rather,
partici
he
ants to kill
victim.
perpetration
pated
conception
in the
ap
We combine for discussion
robbery.
jointly-committed
a
chal
pellant’s
propositions
ninth
tenth
the Oklaho
constitutionality
lenging
greater
money
share
The fact
Su
penalty statutes.
U.S.
ma death
appellant
in the
in which the
was found
car
preme
upheld
has
the constitutionali
riding does
establish that
v. Geor
ty
punishment
Gregg
capital
other
pay.
any
Nor do
facts
murder
2909, 49 L.Ed.2d
gia, 428
U.S.
S.Ct.
Be-
sufficiently lead to such a conclusion.
Florida,
428 U.S.
(1976);
Proffitt
triggerman in
was the
cause
(1976). Okla
encompass killings for IX However, ordinarily will not this Court scope enlarge construction judicial appellant’s also consolidate We beyond of a statute operation penal thirteenth, assign- twelfth, and fourteenth of the accepted meaning statute. commonly ments, issues which raise the most critical State, 95 Okl.Cr. Magnolia Pipeline Co. appeal. in this 193, (1952). P.2d 369 facts war- consider whether the We first New International In Webster’s Third punish- ranted an instruction (1963), “remuner- Unabridged Dictionary, aggravating of the stage ment trial on equivalent an pay “1: to ate” is defined as of murder for remuneration. circumstance to for a for,” equivalent “2: to an 1976, 1, 6, O.S.1981, pay Laws, ch. now 21 § service, loss, Remuneration expense.” penalty 701.12(3), provides the death for § commonly payment denotes for services feel that the meaning such terms [W]e rendered. knowledge, is a matter of common so that ordinary an man guess would not have to wording pur and apparent at what intended. It our interpre- is (3) as to pose paragraph is not so broad tation that heinous extremely means for killings pecuniary gain. include all As evil; or shockingly wicked that atrocious held, penal we have laws to be long are vile; outrageously means wicked strictly against interpreted the State and, that cruel designed means to inflict liberally in favor of the accused. State degree pain high with utter indiffer- (1953). Stegall, 96 Okl.Cr. of, to, or even enjoyment ence the suffer- Legislature Had the intended to provide ing of others. What is intended to be broader would aggravating circumstance it are those capital included crimes where example, have done so. For the California capital the actual commission of the felo- Code, (1981), 190.2(a)(1), Title 47 Cal.Code § accompanied ny such additional provides as aggravating circumstance n acts as to set the crime from the apart murder was intentional and “[t]he capital norm of felonies —the conscience- carried out financial stat gain.” This less or crime pitiless which is unnecessari- ute out clearly applies killings carried ly torturous to the monetary victim. purposes. wording
But in where the Nebraska In case the killing this was merciless. gain,” statute includes “for pecuniary planned The robbers well in advance to take aggravating circumstances has life. the victim’s Even more abhorrent and applicable such construed not to in a case pitilessness indicative of cold is the fact There, as the one us. before Neb.Rev.Stat. that the and the victim knew each 29-2523(l)(c), provides aggravating as an § ag- other. The evidence also supports com- circumstance that murder was “[t]he circumstance gravating murder hire, or mitted for pecuniary gain, or prosecu- was committed to avoid arrest the defendant another hired to commit tion. murder for defendant.” The Nebraska Notwithstanding, where Rust, Supreme Court State v. 197 Neb. more aggravating finds one or circumstanc (1977) N.W.2d Code conclud- on, been improperly es to have instructed ed: speculate jury we will not as to whether the .. . part murder was committed as [T]he imposed would have the death sentence in attempt escape or to conceal the the absence of the infirm cir aggravating identity perpetrator, do not of the we predict Because we cumstance. cannot consider for a the murder was committed have im jury what sentence would pecuniary even result gain though the posed, supports insofar the evidence have possibly could been to Rust enable guilty, we to modi compelled verdict of are keep proceeds robbery. of the to life in ac fy imprisonment the sentence case, In the instant neither the facts nor. O.S.1981, authority cordance with a plain of the statute reading Oklahoma 701.13. § support either of the con- proposed State’s foregoing In it not neces- 701.12(3). light structions of there- Section eleventh, aggravating sary fore find that the circumstance to address fifteenth, Each sup- propositions. murder for remuneration is not and sixteenth *8 ported punish- occurred allege the evidence this case. error stage. ment opinion, We are the. AFFIRMED, except as to Judgment reasonably the evidence supports sentence; of the death finding murder was hei “especially nous, case shall atrocious, with death sentence is vacated and the or cruel.” We cite Dixon, (Fla. AND to life approval be REMANDED MODIFIED State 283 So.2d 1973), imprisonment. where that court stated:
BUSSEY, P.J., and dis- part concurs in part.
sents in J.,
BRETT, concurs.
BUSSEY, concurring in Presiding Judge, dissenting part:
part convic- in the
I concur affirmance must dissent respectfully
tion but I believe that
modification the sentence. a jury should
the case be remanded
sentencing procedure. SMITH, Appellant,
Larry Dean Oklahoma, Appellee.
The STATE of F-78-331.
No. Appeals Criminal Oklahoma.
Feb. 1983.