*1 dered, were entitled to be heard prior judgment. being to rendition of This BURROWS, Appellant, R. William so, vacating the trial court did not err in
judgment upon presentation of the fact of Oklahoma, Appellee. The STATE of proceeding their absence from the which produced judgment sought vacat- No. F-78-40. 1031,
ed under 12 Third. O.S.1971 Court Appeals of Criminal of Oklahoma. Appellant Company Tulsa Rock Jan. urges appeal proposition in this that the trial court abused its discretion when it
allowed intervenors into the action. That appeal.
issue is the reach of this
Appellants petition filed their in error De
cember 1978. This date was thir within
ty days of the date motion vacate granted. Appellants thus saved their
appeal trial court’s order of vaca still, matter, judgment
tion. Another is the reasonably enough, prior
issued to the vaca
tion judgment July order. That is dated petition frankly
1978. The error is out of
time appeal original judgment. from the
Thus matters the judgment resolved are
not appealable, appeal, and on the Court’s
sole concern is the correctness of order
of vacation. It follows that appellants’ con relating
tentions of error not vaca
tion order now not be considered.
Among these are the correctness
original intervention order. opinion Appeals of the Court of
vacated and the order of the District Court Rogers County vacating judgment affirmed,
this cause is and the cause is
remanded to the District Court for further
proceedings.
IRWIN, J., BARNES, J., C. V. C.
HODGES, LAVENDER, DOOLIN and JJ.,
OPALA, concur. J.,
SIMMS, concurs result.
535 *3 Ravitz, Defender, Asst. Public
Robert A. City, appellant. Oklahoma for Gen., Cartwright, Atty. Eric David Jan Gen., Chief, Lee, Atty. W. Asst. Criminal Division, Alexander, Atty. Asst. C. Elaine Gen., City, appellee. Oklahoma OPINION BUSSEY, Judge: *4 Burrows, charged, tried William R. for the offense of Murder in convicted Degree, the First in the District Court of CRF-77-2769, County, No. Oklahoma Case and was sentenced to death. 1, 1977, August
On William R. Burrows spouse engaged and his in a domestic dispute arising out of the defendant’s drink- ing problem. When she threatened to leave (18) eighteen him and take their month old her, Burrows, according his son with confession, Browning seized a .25 caliber pistol, semi-automatic and shot her their bedroom. He continued to shoot her until collapsed hallway. He then she called an ambulance and attended his Thereafter, spouse stricken until she died. spouse’s parents Burrows notified requested incident and that come to City grand- their Oklahoma to take care of engaged son. In a second conversation he in a with his father-in- heated law.
Additional facts are that: (1) investigating Police officers the homi- weapon cide recovered a .25 caliber from premises, reports and ballistic estab- the shots which had been fired lished that body into the victim’s had been fired from weapon. that (2) autopsy upon body An of Mrs. that she was seven and Burrows established (7½) pregnant, one-half months and that gunshot she had died as a result of wounds. defendant, (3) The who had been taken murder, scene of the custody into at the gave police a detailed confession officers warrant affirmative relief. Shipman v. having (Okl.Cr.1971). 483 P.2d fully after been advised of his con- rights. stitutional Further, immediately trial, before trial, (4) During the investigating of- the record reveals the position State’s scene, at ficers testified that when Bur- “ready” present evidence in support of “indifferent, questioned, rows was he was aggravation if the defendant chose to enter going like didn’t care what was on.” plea of guilty, thereby leaving intact the charge aggravated Murder the First (5) A psychologist, clinical Dr. Krimsky, Degree. (all After some discussion that, opinion, testified in his the defendant which is record) not contained in the right wrong did not know at time trial, ready announced unless rebuttal, he shot his wife. On the State guaranteed he was a recommendation of testimony introduced the of Dr. Lorraine imprisonment by life prosecutor. At Schmidt, who testified she had exam- time, the State made no motion to the ined the defendant after the homicide and court orally, writing, it intended that, examination, upon based it was to amend the information or strike the bill opinion that capable her the defendant was particulars. contrary, To the the State distinguishing right between and wrong emphatically informed the court it that was at the time the homicide. ready present to proceed to
support aggravation if the defendant plead guilty. chose to alleged Since the *5 irregularity has adequately pre not been In his first assignment of error the de- such, review, served for appellate is deemed fendant contends that the court abused its to be waived. by refusing accept negotiat- discretion to plea agreement, ed and requests this Court Judgment
to set aside the and Sentence and II remand cause with instructions re- In assignment his second error of quiring imposition of a life sentence of (5) jurors the defendant contends five imprisonment. Witherspoon in violation excused of Illinois, 391 U.S. 20 agreement An was allegedly subsequent L.Ed.2d 776 and court presented presiding judge to the criminal of decisions, disallowing imposition rejected, whereby the district court and penalty jurors death when have been ex plead guilty defendant would to first de expressing general objections cluded for gree manslaughter, if the State would rec capital punishment. bar, In at the matter However, ommend a life sentence. no tran judge language the trial did not use exact script of the matter has been filed with this Witherspoon during voir dire. How Court the original record contains no ever, questions it is clear from the by motion requesting State a reduction jurors answers that the who were excused charge. With no record of evi given proper would not have consideration presented dence the defend law, were, penalties provided ant, if argument indeed evidence or was Witherspoon, “irrevocably under commit presented presiding judge pursuant ted, begun, before the trial vote [had] reduce, to a motion to this Court cannot against regardless infer an abuse of discretion. One who might the facts and circumstances that 1 seeks relief from a on appeal emerge proceedings.” conviction has in the course of the present (5) the burden to sufficient facts to We find that the five veniremen were pertinent portions Appendix 1. The voir dire examina- A. tion of those veniremen excused are found in V guide- cause under the properly excused Illinois, Witherspoon v. set forth lines assignment his next of error the de- In supra. that admission of evi- fendant contends pregnancy deceased wife’s was
dence of his error. III agree with the defendant We assignment of error In his third the victim was seven and the fact O.S.1971, contends pregnant at the time of one-half months 660,2 than the Wither- is more restrictive during the first her death was irrelevant rule, can be in that a venireman spoon trial, to exclude stage of the and his motion he or law if under Oklahoma excused testimony have been sustained such should guilty as the defendant could not find she State, by the trial court. Combs capi- being unwilling to consider opposed to 283, 197 (1948). P.2d 524 Under Okl.Cr. Chaney v. In punishment. tal prosecutor of this case circumstances a simi- (Okl.Cr.1980), we addressed P.2d 269 not have introduced the issue of should one now before us and stage as the lar until the second pregnancy jurors incompetent can ... be ex- or irrele “Prospective proceedings.4 When stated: the entire vant has been received if have decided cused for cause determine if must be considered to record impose they will not vote advance that to the verdict of the evidence contributed the circum- regardless of penalty, guilty. Chaney, supra, the defendant Chaney, with su- In accordance stances.” argued aggravation that evidence of is without pra, assignment of error during stage the first improperly admitted merit. trial, and we determined the same to and stated that: harmless IV admitted, Even had the evidence not been guilty unquestionably advanced the de The contention the verdict of the same. Modification assignment of error is would have been fendant in his fourth appropriate proper since it is not questioning likewise without merit. *6 sentencing the evidence in the admit alleges he now as during voir dire which stage. question in a set of error was but one attorney. the district
questions presented condition of evidence of a deceased’s Since during and answers questions When the time of the homicide has pregnancy at the rever- generally grounds in context we find not been held for voir dire are considered alone,5 sal, standing even been and has resulting no therefrom.3 error prove your Appendix to to satisfaction and we are able 2. See B. doubt that this man is a reasonable you guilty degree, in the first would reading of murder 3. voir dire examination reveals A of the (Tr. 175) penalty? juror prospective be able to assess the death questions each a set of essentially: asked improper question the one occasion that an On was believed in the Whether he or she asked, objection crimes; was sus- the defendant’s concept punishment of for whether question was withdrawn. We penalty tained and or she that the death could be believed every factor; defendant asked also observe that the prospective he or she could or a deterrent whether juror whether he or she also saw penalty death in a would be able to assess the imprisonment and whether in case; as a deterrent proper courage life a whether he or she would have the impose proper im- he or she could life impose case if believed to punishment. prisonment as appropriate in the instant case. prospective jurors With seventeen the dis- 1980, 701.12, O.S.Supp. sets forth 21 4. Title attorney The trict prosecutor used the word “could”. subpara- aggravating circumstances and (2) they if asked two veniremen provides: graph four thereof courage believed had the to vote for heinous, especially atro- The murder penalty. With four veniremen the word cious, or cruel. questioning all but one “would” was used. of the a Pendleton, See, example, People twenty-three prosecutor jurors for 5. used (1974). instance, Ill.App.3rd properly qualified question: N.E.2d 433 if For tal, jurisdictions,6 ruled admissible in some we to introduce evidence that unfinished doily do not feel that the introduction of such needlework Raggedy of Ann and Andy to lying evidence case contributed the find- was found on the bed at the ing scene, guilt.7 of homicide and that the admission of such highly evidence was prejudicial to the
VI defendant. Conceding that the admission stated, For the reasons hereinbefore testimony was not relevant to any assignment we also hold defendant’s next to during trial, little, issues raised and had hold, however, value, be without merit. We do probative if any, the defendant has estopped prosecuting State is failed to demonstrate that he has suffered manslaughter the defendant by causing any prejudice therefrom. We have consist- the death of Chaney the unborn child.8 v. ently held that defendant prej- must show State, supra. udice to warrant reversal or modification on See,
appeal.
State,
Frazier v.
bearing on the defendant’s state of mind.9
IX
complained
testimony,
The
when careful
defendant next
contends
,to
examined,
ly
not
does
relate
the defend
the trial court erred in
failing
sustain a
mind; rather,
ant’s state of
it was a de
evidence,
demurrer to the
since there was
scription
reactions,
of his
behavior
and no
presented
that demonstrated a
such,
See,
State,
proper.
it was
Garcia v.
deliberate intention to take a human life.
(Okl.Cr.1972).
VIII
that,
believe the defense testimony
at the
eighth assignment
As his
homicide,
of error
time
commissionof the
argues
the defendant
the trial court
capable
forming
defendant was not
erroneously
State,
permitted
necessary
on rebut-
aforethought.10
element of malice
See,
Davis v.
222 Ala.
540
Sandstrom,
instant
supra,
jury
the
the
jury
the
on
instructed
properly
The court
the
the
fully
ease
understood that
State had
aforethought. The
malice
the
of
definition
every
homicide,
allegation
and
proving
burden of
each
of the
circumstances
facts and
complaint beyond a reasonable doubt.
of the
the defendant’s confes-
coupled
when
with
present
are in
The instructions
the
case
sion,
par-
deceased’s
to the
his statements
approved
accord
those
and
Dr.
substantial
with
testimony of
Lorraine
ents
the
and
Sandstrom,
very
rebuttal,
distinguished from
to the defend-
Schmidt,
relative
opinion
Supreme
Kansas
by
time
the
excellent
the
the
of
ant’s mental condition at
Acheson, Kan.App.2d
3
Court in
v.
homicide,
support
trial court’s
State
amply
the
705,
(1979). In
ruled.
Strickland
State,
v.
499
(1930);
287
Dukes
XI
P. 822
State,
Jones
(Okl.Cr.1972),
P.2d
assignment
his
of
In
eleventh
(Okl.Cr.1971).
XII
improper,
arguments
closing
but the
in toto.
disagree
We
with defense
The
counsel’s conten-
urged
next
by
contention
the defend-
tion that the
irregular
remarks were
ant is
and
that the trial court erroneously re-
prejudicial;
contrary,
the comments
by
stricted
Krimsky
allowing
Dr.
not
him
were proper comments on the evidence and
fully testify to all
by
facts revealed to him
bearing
very
on the
issues with
which the
during an
defendant
interview session
was
jury
right
concerned.
argu-
The
which lasted some five and one-half hours.
contemplates
ment
a liberal freedom of
thereof,
As a result
defendant maintains
speech
range
discussion,
and the
illustra-
was unable to understand the
tion,
argumentation
is wide. Harvell v.
basis
Dr. Krimsky’s opinion
for
State,
(Okl.Cr.1964).
The next contention raised defend- ant portions closing is that XIY presented by prosecutor during pun- phase defendant, ishment impermissi- of the trial assign- in his next two ble, necessitating error, modification of aggravating sentence. ments attacks the cir- insane; Jury but provided: where criminal action No. 16 Instruction insanity indictment or information the defense of in- Should find that the offense of sanity interposed instructions, singly either or in con- as defined in these established, has been
junction offense, with some other find then will the defendant verdict, acquit- guilty by insanity. must state in the if it is one of not reason of tal, acquit- whether or not defendant was Appendix 15. See C. grounds insanity ted on the .. . *9 542 Godfrey v. Geor- In the recent decision of killing of his wife the that cumstance 420, 1759, 64 L.Ed.2d 446 100 S.Ct. gia, U.S. In heinous, or cruel. atrocious
especially
of the Unit-
Supreme
the
Court
398
provi-
thereof,
argues that
support
Georgia conviction
ed
invalidated
States
and, if deemed
overbroad
vague and
sion is
upon the
premised
aggravated murder
the evi-
constitutional,
by
unsupported
is
“was outra-
that
the offense
circumstance
dence.
vile,
inhu-
horrible or
wantonly
or
geously
torture, depravity of
it involved
man in that
concedes,
aggra
an
As defendant
battery to the vic-
mind,
aggravated
or an
com
an offense
vating circumstance
16
Gregg
Although upheld in
v. Geor-
tim.”
heinous, atrocious or
especially
is
mitted
supra,
being
as not
unconstitutional
gia,
vague
unconstitutionally
and
cruel, is not
determined,
face,
applied
as
the Court
its
by the
overbroad,
determined
previously
as
Georgia
Su-
Godfrey,
facts in
in Proffitt v.
Supreme Court
United States
apply a constitutional
failed to
preme Court
2960,
242,
49
Florida,
96 S.Ct.
428 U.S.
as marked
of the statute
construction
Georgia,
Gregg v.
(1976); and
913
L.Ed.2d
As noted
of that Court.17
earlier decisions
543 to the left gunshot reveals entries lower As the construed [footnote omitted] back, back, upper right Supreme Florida, lower middle middle provi- Court of these back, (This left chest and left hand. upper impermissibly vague. (Em- sions are not have caused the same entry may been phasis added).
shot.) Throughout shooting episode the the Title O.S.Supp.1980, 21 701.12(2), is con- § holding The de- defendant child. stitutional. the of ceased stumbled into front room the adjacent home came the front to rest XVI Although a linger long door. she did not arguments, three other the defendant while, did not and as immediately; she die contends that errors occurred in the Court’s there, carried, knew, lay she the life she she during stage instructions the second of the amply would die also.19 The evidence sup- proceedings. ports jury finding the the murder was aggravated by being O.S.Supp.1980, 701.12, the of Title 21 circumstances § killing. an sets especially aggravating heinous forth the circumstances. provides any Section 701.10 of XV aggravating may presented circumstance be Next, provided the defendant been adequately the defendant contends that has O.S.Supp.1980, 701.12(2), put on (the accused notice. Title 21 O.S.Supp.1980, § 701.11, knowingly great prohibits § created a risk of death to a sentence of un more one is person) overly than less at least one of the aggravating broad circum therefore unconstitutional. While defend stances is found to exist is supported by have, time, argument may ant’s at one been the death, evidence. The of how discussion, validity ever, worth this of cir imposed cannot be if mitigating cir cumstance, face, its has been settled outweigh aggravating cumstances circum in Supreme United States Court Prof stances. Section 701.10 states: “Evidence Florida, fitt supra, wherein following presented any as mitigating cir is determination of this issue: (Emphasis added.) cumstances.” This case, a except may present any
In the means that defendant for the instant case, in which relevant aggravating the third fac- evidence within the limitation of evidence, bearing the rules knowingly created on his charac ‘[t]he tor — ter, great a risk many persons’— prior of death to record or circumstances found, During Alvord v. 533 offense. stage, So.2d the second Supreme Judge the State Court held that they instructed great the defendant a risk created not limited in their miti consideration of circumstances, ‘obviously gating death because he murdered but could consider any two of in order avoid victims a such circumstances that found surviving witness to the murder’. from the evidence.20 [first] circumstances, pregnan- any, you In Delaware the fact of the victim’s if find from evi- 19. cy aggravating itself circumstance. See dence in this case. What are and are what Del.C., 4209(e)(l)(q). mitigating not additional is for circumstances you jury to determine. During stage, pertinent part, the second in following mitigating The are minimum was instructed: provided by circumstances law: mitigating You are instructed that circum- significant 1. The defendant no histo- has specifically stances are not enumerated ry prior activity; criminal statutes of this but the this law of state age 2. The defendant at the time up mitigating sets certain circum- minimum the crime. you guidelines in stances shall follow as de- provided: Instruction No. 6 termining you impose in which sentence You are instructed that the event You unanimously case. shall consider or all of these find these that one more of mitigating aggravating minimum you circumstances which circumstances existed apply doubt, find facts and circumstances reasonable then would be autho- your of this case. imposing You are not limited rized to consider sentence mitigating consideration minimum these death. twenty-first arguments presented by as defendant’s find the de- is, fendant without merit. part, identical to of error signment *11 in our recent decision presented argument XVII (Okl.Cr.1980). State, P.2d 588 v. 617 of Irvin The defendant also contends 1976,1st Extraordinary Arguing from Laws jury they should have been told that if 5, 1, 21 Session, now O.S. Chapter Section agree a sentence in a reasona could not 701.11, claims that Supp.1980, § time, they be dismissed and ble then would things prior four jurors must be told imposed. Defendant is con a life sentence First, the death beginning deliberations. jurors strong with character cerned jury unless the imposed be penalty cannot jurors of weaker could have overwhelmed aggravating circumstanc or more finds one argument was made character. This same doubt; second, if beyond es a reasonable v. 79 Okl.Cr. 153 P.2d in Frazee aggravating or more jury finds one Sylla in the wherein we stated circumstances, they may consider im then bus as follows: third, jury if the penalty; posing the death jurors together reason duty It is the aggravating circumstanc finds one or more harmonize their discordant views and by es, outweighed are but the circumstances juror should not con- possible. where A case, circumstances mitigating which he thinks is con- sent to verdict penalty; the death jury impose cannot a mere defer- trary to the evidence out of fourth, jury aggravating finds even if the Yet, jurors. may he ence to his fellow circumstances, circumstances are and those whether the doubt which he en- consider circumstanc outweighed by mitigating not which makes tertains is a reasonable one es, the death impose they can decline impression no on the minds of others case, jury penalty. In the defendant’s . equally equally intelligent honest and three instructions but given the first himself, with who have heard the testi- Irvin, not the fourth. As in arises, which the and mony out of doubt instruction was sub rejected. The fourth may properly change his views because second, jurors were since sumed properly He can consideration. to, could, they they not that had told that opinion doubt the correctness of his own As death sentence. stated impose the by when it is not concurred in his fellow Irvin: jurors, and without a violation of his provided jury un- The discretion which, oath, consent to a verdict if he O.S.Supp.1980, the statute 701.- der [21 alone, acting would not render. necessary to make a factual is that 11] may properly Trial Court refuse a re- or non-existence finding of the existence quested instruction defendant which is mitigating circum- aggravating and so worded that it is an invitation to the stances, requisite well as the discretion as jury disagree on its verdict. balancing the two. XVIII conjunc- reading A of the statute in careful given tion with the instructions The defendant next attacks Okla law, penalty being both cruel compliance reflects with Oklahoma homa’s death unanimously beyond imprisonment you If find event the sentence do not would one or more of the statuto- for life. reasonable doubt ry aggravating existed, provided: circumstances then Instruction No. you state authorized to consider the You are instructed that the has would not be satisfaction, your prove penalty In that event the burden to death sentence would be If of death. doubt, imprisonment for life. a reasonable the existence of one or statutory aggravating unanimously circumstances as find one or more of more do aggravating these yond existed be- set out in these instructions. circumstances further find The was also instructed that the sen- a reasonable doubt and imprisonment aggravating life if found that such or cir- tence would be circumstance mitigating finding aggravating outweighed if no circumstances or cumstances is circumstances, outweighed aggravating mitigating circum- one or more death circumstances stances penalty imposed. found. shall not be In that process unusual in that it due right protected denies mental by the Fourteenth equal protection of the law. He does Amendment to the United States Constitu- challenge principle, not the death tion and that before a infringe state can question having been resolved upon right by imposing pen- Supreme Gregg United States Court in alty, it must be shown that there is a com- Georgia, 428 U.S. 49 pelling state interest which cannot be satis- (1976). L.Ed.2d essence of his ar- by any fied less restrictive means. Since gument pre- is cumulative to other attacks decided, O’Neal was the United States Su- brief, viously made and in a rather preme Gregg Court ruled in Georgia, shotgun approach, he additionally contends supra. ruling In that Supreme Court *12 the discretion which is any inherent in held that the death penalty is not unconsti- capital sentencing procedure impermissi- principle, tutional in and concerning the very make-up ble due to the of a criminal test applied to be stated: justice system. types arguments These we have an obligation to insure [W]hile have been rejected. addressed and the Constitutional bounds are not over- Gregg, supra, Supreme Court stated: reached, judges we not act as as we The discretionary existence of these might Therefore, legislators.... in stages is not determinative of the issues assessing punishment selected stages before us. At each of these democratically Legislature elected actor in justice system the criminal against measure, the constitutional we makes a decision which may remove a presume validity. its mayWe not re- defendant from consideration as a candi- quire Legislature to select the least penalty. date for the death Furman penalty possible long severe so as the 238, Georgia, v. 408 U.S. 92 [Furman penalty cruelly selected is not inhumane 2726, contrast, 346], 33 L.Ed.2d in S.Ct. disproportionate or to the crime involved. dealt with the impose decision to heavy The burden rests on those who specific death sentence on a individual judgment repre- would attack the who had capital been convicted of a of- people. sentatives of the Nothing sug- fense. in of our cases The Supreme Court of the United States gests that the decision to afford an indi- O’Neal, did making not overlook their vidual mercy violates the Con- decision; they simply did not follow it. that, stitution. Furman held in or- der to minimize the risk that XX
penalty
imposed
capricious-
would be
on a
ly
group
offenders,
selected
the deci-
error,
assignment
In his next
the de-
sion
impose
guided by
it had to be
lawyer’s
fendant contends that his
mistakes
standards so that the sentencing authori-
at
significantly
trial
contributed to the sen-
ty would
particularized
focus on the
cir-
tence. We have
examined the record
cumstances of the crime and the defend-
given
this case
have
careful considera-
ant.
presented
tion
of counsel
reject
during
arguments
argument.
We
briefs and
oral
and deem them
Florida, supra;
without merit. Proffitt v.
applied
Under whatever test is
262,
Texas,
Jurek v.
428 U.S.
lawyers
good job
the defendant’s
did a
(1976).
sonably competent I don’t think JUROR: PROSPECTIVE I upon applied prospectively to be standard night, Judge sleep could at Naifeh. this state. cases in of criminal review Yes, Your answer THE ma’am. COURT: (Okl.1980). P.2d 1311 Johnson yes or no. should counsel that appellate agree do not with We JUROR: I don’t think PROSPECTIVE contention that trial supports the the record could. represented (defendant counsel (2) attorneys) failed to
through trial two Your answer is no? THE COURT: skill, dili- judgment and adequate exercise No. PROSPECTIVE JUROR: gence under the test. positive And that is a no? THE COURT: stated, heretofore For the reasons Yes. PROSPECTIVE JUROR: finding the defend- Judgment and Sentence Degree Murder is AF- guilty words, Soto, ant of First In other Ms. if THE COURT: my that both of Recognizing FIRMED. found a reasonable doubt *13 the sentence should colleagues agree that defendant, Burrows, guilty is Mr. respect- I imprisonment, to life be modified Degree you First wouldn’t Murder in the modification and the fully dissent penalty? the death inflict imprisonment, life sentence death to No. PROSPECTIVE JUROR: that, my opinion, the reason for the Honor, Your we move that MR. COATS: finding ag- amply supports excused for cause. Ms. Soto be case, in the instant gravating circumstances objections? Any THE COURT: were not mitigating and the circumstances cir- outweigh aggravating such as to Yes, Honor. MR. HAMILTON: Your affirm the sentence of cumstances. I would Bench, Approach please. THE COURT: death. Honor, HAMILTON: Your I feel that MR. give Ms. could not solely because Soto A APPENDIX finding penalty upon guilty death Soto, get will back THE COURT: Ms. we Degree grounds is not Murder in the First you just have read the to a minute. I being excused for cause because of for her Keep- you concerning statute this case. a fair my the fact that client is entitled to ing presumption of innocence mind impartial Jury by peers. trial Now, proof. in a case where burden of people is the And the fact Oklahoma warrants in a the law and the evidence County may willing give not be a death proper proper facts and cir- case under penalty. doing you all without vio- cumstances could she was unsure. But final- She did indicate your agree lence to a verdict conscience say she was ly change did she her mind imposing penalty. I feel that the Court should examine sure. I couldn’t. JUROR: PROSPECTIVE feels the her more as to whether or not she Soto, right. you Ms. THE COURT: All penalty given would not be because death cannot. Ms. you cannot and Foreman Mr. religious of her or moral reasons. Soto, question. you If you let me ask Any you one of would like THE COURT: found, Soto, beyond Ms. a reasonable doubt any questions? her further to ask guilty that the of Murder in defendant was evidence MR. It seems to me in answer to Degree the First and if under the COATS: Honor has asked questions and the of the case that Your facts and circumstances disposes question. Under current permit you the law to consider a would we are both Federal and law your sentence of death are reservations law you are such that would not inflict Jury entitled to have a who could under penalty? death proper pen- circumstances inflict the death PROSPECTIVE I JUROR: would not. alty. You asked her under circum- you THE COURT: Even if him found to be just stances she said she could not. I would guilty beyond a reasonable doubt. ask that she be excused. When this situa- PROSPECTIVE JUROR: I would not. again tion occurs the have no State would objection giving continuing the defense a THE COURT: You wouldn’t even consider objection grounds. on these it? Honor, MR. HAMILTON: Your I feel that PROSPECTIVE I JUROR: would not. Jury should be a fair cross section of THE COURT: You realize as a Juror that the community excusing Ms. Soto Jury has the discretion consider ei- is improper. reason ther you life understand that? THE right. COURT: All objection PROSPECTIVE JUROR: I understand you overruled are exceptions allowed that, sir. you may have a continuing objection on THE COURT: You have my understood other if you Jurors wish. questions? wish, MR. HAMILTON: do Your Honor. PROSPECTIVE JUROR: I have under- THE Soto, COURT: Ms. you understood all your questions. stood my questions, you did not? THE you COURT: And have understood Yes, PROSPECTIVE JUROR: sir. your answers? THE COURT: your You understood an- PROSPECTIVE JUROR: I do. gave? swers that PROSPECTIVE JUROR: Yes sir. THE COURT: Attorney Mr. District do *14 any questions? have Soto, THE COURT: Ms. going I am excuse so much for next. will come and [*] you [*] for cause at this serving get your [*] aas slip [*] Juror. Call the and thank time. [*] If [*] you you MR. COATS: MR. HAMILTON: that Mr. Foreman be excused for cause. THE COURT: Do No, you Yes, Your have Your Honor. Honor, any objections? we move THE COURT: Mr. Foreman. objection? THE COURT: Same Yes, PROSPECTIVE JUROR: sir. Yes, sir, MR. HAMILTON: Your Honor. ner. question but I have to word it in this man- the case THE COURT: I Murder in the First evidence, facts and circumstances of the doubt attentively less of the case the about sentence of death are If you law,would permit you you death law, found would not inflict this facts and circumstances of penalty defendant was want Degree question. beyond you your such that and if under the to listen a reasonable to consider a reservations It’s a the death guilty regard- very long please, sir. THE THE your come and Foreman, sir, you will Thank another case. You are to jury assembly [*] be overruled with COURT: All business, COURT: you get your so [*] much for profession Mr. [*] are excused. slip right. room on Harrington, you serving. [*] exceptions. Same will be report [*] occupation, If ruling. 5th floor. assigned you what back [*] will Mr. It penalty? general am su- PROSPECTIVE JUROR: I perintendent Smith and— no, Positively, PROSPECTIVE JUROR: sir. you THE COURT: Were able to hear all questions I propounded so far? words, THE you’re COURT: In other tell- ing your Yes, me reservations about the death sir. PROSPECTIVE JUROR: I wouldn’t vote
PROSPECTIVE JUROR: I penalty. for the death Life would. Not your answers to Would THE COURT: penalty. the death materially different questions those from these others? you you If THE COURT: Let me ask this. I don’t believe in JUROR: PROSPECTIVE found a reasonable doubt that capital punishment. guilty of Murder in the First evidence, Degree if facts and under right. you Let me ask All THE COURT: circumstances of the case the law would law and the a case where the this. permit you to consider a sentence death proper case could warrants in a your your pen- con- are reservations about the death doing without violence you imposing a verdict agree alty regardless science such that of the law and the penalty? death you and circumstances of the case facts penalty? would not inflict the death No, sir, I could PROSPECTIVE JUROR: give penalty. not JUROR: I would not. PROSPECTIVE you addi- THE COURT: Let me ask ques- THE COURT: Your answer to that you found question, please, tional sir. If your then reservations are such tion that the defend- beyond reasonable doubt you penal- would not inflict the death ant, Burrows, guilty Mr. of Murder ty? evidence, Degree the First and if under the Yes. PROSPECTIVE JUROR: of the case the law facts circumstances ques- THE COURT: You understood permit you a sentence of would to consider you? tions I have asked your death are reservations about the death law, penalty regardless such that Yes, PROSPECTIVE JUROR: sir. you facts and circumstances of the case THE COURT: You understood the answers penalty? would not inflict the death you given have to me? No, sir, I don’t PROSPECTIVE JUROR: Yes, JUROR: sir. PROSPECTIVE penalty. believe in the death MR. COATS: The moves Ms. Peters your THE COURT: And reservations are be excused. such about could right. impose not it even THE COURT: All if found defend- doubt; guilty beyond ant to be a reasonable Honor, MR. HAMILTON: Your I would is that correct? question one like to ask Ms. Peters if *15 Yes, sir. PROSPECTIVE JUROR: could. MR. cused. THE Harrington be excused. THE COURT: All [*] COATS: COURT: Mr. [*] [*] Harrington, you right. [*] moves that Mr. Have a [*] are ex- [*] seat, MR. HAMILTON: Ms. Jury and off the (WHEREUPON, some discussion was had at THE COURT: All the Bench outside the record.) right. Peters, I would like hearing of the Peters, you any type please. to ask is there of case— you something Ms. have call my attention? Sir, podium use the or THE COURT: either I in right PROSPECTIVE JUROR: don’t believe stand there.
capital punishment. Peters, any is there MR. HAMILTON: Ms. THE right. COURT: All Ms. Peters let me type you give case in which could of you question. very ask this Listen atten- penalty, any type case at all? death of tively you if the law will. In a case where No, there is not. PROSPECTIVE JUROR: proper and evidence in a case warrants and Peters, you THE are excused COURT: Ms. you doing your could without violence to you your thank for frankness. agree imposing conscience verdict a penalty? death rights
stantial of party challenging, and which Keeping pre- chapter THE in is known in this COURT: mind the actual bias. sumption innocence doctrine and the [Footnote omitted] before, predicate we have laid let me ask O.S.1971, 660, Title 22 provides: § Holmes, you this question. Mr. case a challenge A implied for bias be tak- where the law and the evidence warrants cases, en all following for or proper a you doing case could without vio- and, for no other: your lence to conscience agree to a verdict Consanguinity 1. affinity or within the imposing penalty? inclusive, degree, fourth person No, sir, alleged injured by PROSPECTIVE JUROR: I to be could the offense charged not. or complaint on whose prose- instituted, cution was or to the defend- THE COURT: Let me ask you then ant. question. you If found a reasonable 2. Standing guardian in the relation of guilty doubt defendant was ward, client, attorney master and Degree Murder in the First and if under the servant, tenant, or landlord and or being evidence, the facts and circumstances of the defendant, a member of family permit you case law would to consider a person injured or of the alleged to be your sentence of death are reservations charged, offense on or whose com- about the penalty regard- death such that plaint prosecution instituted, or law, less the facts and the circum- wages. employment stances of the case not would inflict the Being party 3. a adverse the defend- penalty? death action, ant in a civil having complained or No, sir, PROSPECTIVE JUROR: I would against, or been him in accused not. prosecution. criminal words, THE your COURT: other reser- Having 4. grand jury served on the vations about the death are such indictment, which found the or aon coro- would not inflict the death penal- inquired ner’s which into the death ty? person subject of a whose Yes, PROSPECTIVE JUROR: sir. be- prosecution. place it lieve has a my place but it’s not Having 5. served on a trial which do it. person has tried another for the offense right. THE All COURT: charged in the or indictment information. We MR. COATS: move that be excused Having 6. one the jury formerly been cause, Your Honor. to try sworn the indictment or informa- aside, tion and whose verdict was set THE COURT: Sustained. verdict, discharged which was without a APPENDIX B after the cause was submitted it. O.S.1971, 659, provides: Title Having juror served as a civil challenge Particular causes of are of two brought against the action defendant for kinds: *16 charged the as act an offense. 1. For such a bias as the when existence punishable If the offense be charged ascertained, the judgment facts is in of death, entertaining with the of such con- disqualifies juror, law the and which is opinions preclude scientious as would his chapter implied known in this bias. of, the finding guilty defendant which permitted 2. For the existence of a state of mind case he shall neither be nor juror, juror. part compelled on the to serve as in reference to a case, party, either which satis- C APPENDIX court, fies the exercise a sound discretion, try testimony that he cannot the issue A Krimsky’s review of Dr. does prejudice impartially, unduly without to the sub- not reflect that he was restricted panic. rage into a state of
fendant
thereon, Krimsky’s opinion was that
upon which he
presenting the facts
Based
from
distinguish right
contrary,
could not
opinion. To the
the defendant
formed his
Krim-
he killed his wife.
wrong
that
there was no main
when
explained
from
doctor
moment,
very
identified.
at that
sky
the defendant
stated that
figure with whom
a silhouette hav-
estranged from his fa-
wife was but
was
defendant’s
The defendant
ing
to him as an alco-
no substance.
portrayed
ther who was
grandmother.
holic
his mother and his
BRETT, Presiding Judge, dissenting, but
child who was
The defendant was
of sentence:
concurring in modification
grandmother,
his
reared
his mother and
Although
agree
my colleagues
with
when the
parents having been divorced
his
charged with
appellant
cannot now be
young. The defendant
quite
defendant
child,
the unborn
I cannot
the death of
and,
age
“Judy”
mother
at
called his
agree with their treatment of several other
highschool, planned to
having completed
in this case. As I have stated in
issues
Houston,
with his uncle and
move to
live
State,
(See
previous cases
Assadollah
pipefitter. Upon
aunt and work as
Brett,
J.,
(Okl.Cr.1981),
P.2d 1215
P.
Con
mother,
Judy,
the defendant’s
revelation
Part,
curring
Dissenting
in Part and
to have the defendant
treated as
threatened
(Okl.Cr.1981),
Hall v.
defendant called a clinical who concerning matters about which he had no expert opinion testified that in his the de- knowledge. Fidelity firsthand and Casual- right fendant did not know wrong at. ty Company Hendrix, of New York v. pulled the time he trigger. During his (Okl.1968), P.2d 735 and the cases on which testimony repeatedly the doctor tried to tell police reports it is based involve based on jury background about the information hearsay statements of witnesses. opinion, that was the basis of his but he was repeatedly objec- blocked the State’s Neither of these cases fits the case now tions. The says the doctor (The before the Court. defendant also cites give should have been able to this informa- Fidelity and Casualty Company of New tion to the so that properly could York, but it point is no more to the for him judge credibility. State.) than it is for the Statements made persuasive. defendant’s citations are by a defendant to a pieces doctor are not From Toms v. 95 Okl.Cr. 239 P.2d hearsay which merely adopts the doctor comes following syllabus: passes along They to the jury. are the raw
Expert testimony is admissible where the material out of which prod- he fashions his conclusions to be drawn by de- psychological profile. uct —the As with
CORNISH,
concurring
part
and
Judge,
Lemmons, supra,
Fuller v.
where
jury
the
dissenting
part:
given
should have
x-ray photo-
been
the
Bussey’s opinion in-
Judge
I concur with
graphs,
jury
the
should have
given
been
the
guilt
judgment
as it affirms the
sofar
defendant’s
statements
to the doctor so
end of the first
by
reached
the
at the
they could properly judge the doctor’s credi-
However,
stage proceeding.
I am not un-
bility.
responsibility given
the
to the
mindful of
is not a case in
the same reason this
For
Legislature,
this Court
the
members of
needed,
questions were
hypothetical
which
errors,
reviewing legal
in addition to
knowledge
the doctor had firsthand
because
propriety of the sentence im-
consider the
the
namely,
facts:
defend-
of the material
O.S.Supp.1980,
701.13 C:
posed under
§
(Whether or not he had
background.
ant’s
sentence,
the
regard
C. With
to the
knowledge of the defendant’s
sufficient
Appeals]
court
Court of Criminal
[The
opinion was a
background to form a reliable
shall determine:
cross-examination,
explored on
matter to be
very well.)
attorney
which the
did
district
the
of death was
1. Whether
sentence
2705,
12 O.S.Supp.1980,
State cites
passion,
influence of
imposed under the
(which,
course,
was not in effect
factor;
at the
prejudice,
arbitrary
or
other
case),
trial of this
and Cleary,
time of the
supports
the
the
2. Whether
Evidence,
McCormick
(1972),
2nd Ed.
finding
statutory
jury’s
judge’s
of a
proposition
underlying
that the facts
an
aggravating circumstance as enumerated
expert’s opinion
can
be adduced on
act;
in this
cross-examination.
is not
This
correct.
the sentence of death is
3. Whether
Both the statute and the treatise state that
pen-
disproportionate
excessive or
expert
“may” give
opinion
her
his or
cases, considering
alty imposed in similar
prior
without
underlying
disclosure of the
both the crime and the defendant.
[Em-
facts.
phasis supplied.]
Finally, I
hold that on the facts in
would
capital
appellant
In a
case the
is entitled
case,
present
suffi-
State failed to
validity
ap-
have
his conviction
aforethought,
cient evidence of malice
praised on considerations of the case as it
meaning
appellant’s
demurrer
the issues were determined
was tried and as
proof
should have been sustained. The
princi-
in the trial court. That fundamental
shooting
during
that the
a heated
occurred
ple
procedural
applies
fairness
with no
appellant
and his
between
penalty phase
force to the
of a trial in a
less
wife.
It
when she threatened
to di-
guilt-deter-
capital case than it does
child,
vorce him
take their
whom he
Wainwright,
mining phase. Spinkellink v.
see,
again
grabbed
would never
that he
2091,
This writer
based
concedes that the statu
on reason rather
circumstance,
caprice
than on
or
tory aggravating
emo-
“the mur
Florida,
349, 358,
tion.
heinous,
Gardner
especially
atrocious,
der was
U.S.
1197, 1204,
cruel,”
(1977).
structions of his
counsel:
1. Mr. thirty-one (31) years Burrows was
old at the time of the homicide and had no
prior history activity. of criminal honorably discharged 2. He had been Riley SHOCKLEY, Jr., Petitioner, Joe
from the Air sergeant, Force as a after having (4½) years served four and one-half MELSON, The Honorable Gordon R. Dis- Phillipines. in Okinawa and the After mar- Judge Twenty-Second trict For the Judi- Burrows, rying Mrs. he received account- Oklahoma, Respondent. cial District of ing degree College, from East Central State Ada, degree Oklahoma. He earned this No. P-82-32. (2½) years two and one-half while work- Appeals Court of Criminal of Oklahoma. ing way through grocery his school at a appellant store owned his in-laws. Jan. (4) employed years agent for four as an and auditor for the Internal Revenue Ser-
vice, during employment, pursued degree
a Masters in the Business Adminis-
tration curriculum at Central State Univer- homicide,
sity. At the time of the he was (3) completing
within three hours of
Masters degree.