Lead Opinion
OPINION
Appellant Marcus L. Cargle was tried by a jury in the District Court of Oklahoma County, Case No. CF-93-6982, and convicted of Count I and Count II, Murder in the First Degree (21 O.S.1991, § 701.7(A); and Count III, Possession of a Firearm After Former Conviction of a Felony (21 O.S.Supp.1992, § 1283). For the weapons charge he received a sentence of ten (10) years. The
I. FACTS
Richard Paisley was a woodearver. He and his wife Sharon had moved into a house on North Westminster in far northeast Oklahoma City to study southwestern art forms. They planned to stay temporarily, then return to their families in the Carolinas. While in Oklahoma City, they apparently also sold marijuana. It was the prosecution’s theory they sold bad marijuana to Appellant and his friends, and this sale led to their deaths.
The Paisleys’ neighbor last saw Richard alive on September 24, 1993, when he came to the neighbor’s house to borrow money. He said he needed $200 to save a trip into town, and he would repay the loan the next day. Richard offered the neighbor, Larry Dhooge, a couple of cheeks as collateral; Dhooge refused the offer, and loaned Paisley the $200. Dhooge sent his sons to the house the next day, a Saturday, to collect on the debt and to give the Paisleys a package addressed to them which had been delivered to the Dhooge house. The two boys found the bodies: Sharon was lying on the floor in the living room, Richard was lying in the doorway to the bedroom. Each had been shot in the head, and Richard had also been shot in the chest. The Dhooges recalled the Paisleys’ lights were on and the television was off when they returned to their house between 11 and 11:30 p.m. Friday; usually, the lights were off and the television was on at that time.
Authorities got a break in the case in November 1993, when a man arrested for domestic violence sought to make a deal with authorities. In early October, the county jail inmate, Luke Jones, had been living with Appellant at Appellant’s parents’ house. Appellant had approached Jones and wanted to know if God would forgive him for murder. After being assured by Jones this would occur, Appellant said he had gone through some changes, and had killed a man and woman (whom he described as hillbillies from the Carolinas) out by Spencer, a municipality in northeastern Oklahoma County. Appellant said “Todd” had shot the man, and he had shot the woman. They had gone to the residence after the Paisleys had sold them some bad marijuana. “Todd” was later identified as Christopher Todd Williams.
Authorities arrested Appellant, who admitted being at the scene but denied killing anyone, blaming both murders on Williams. Appellant told them a third person, Christopher Todd Jackson, would corroborate this.
Instead of corroborating Appellant, Jackson told authorities essentially what Jones had said. They had gone to the Paisley residence to get money back for some bad marijuana. Richard did not have the money, but went to a neighbor’s and returned with it in a few minutes. He returned the purchase price, saying he did not want any trouble. Williams then asked to use the restroom. When he came out, he was carrying a Tech-9 semiautomatic weapon. He approached Richard and shot him once in the chest. Richard lunged at Williams, who then shot
Other facts will be introduced as they become relevant.
II. PRE-TRIAL ISSUES
A.
For his first, proposition of error, Appellant contends he was denied his right to equal protection under the law when the trial court refused to provide a copy of his preliminary hearing transcript at State expense.
The State on appeal does not dispute the general principle of law that denial of a preliminary hearing transcript to an indigent defendant because he cannot pay for it violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. Roberts v. LaVallee,
The charge was filed November 15, 1993. Attorney Michael Gassaway appears to have been retained as the attorney of record from the beginning. On March 1, 1994, Gassaway filed an application to withdraw as attorney of record, citing lack of agreed payment (O.R.24). The record does not show a disposition of that motion; however, Gassaway represented Appellant at trial.
Appellant filed several motions on March 16, 1994 (O.R. 34—107). Request for preliminary hearing transcript was not one of them. On March 18, Gassaway filed a motion for the transcript, saying he would present a pauper’s affidavit if necessary (O.R. 135). In response, the prosecution simply argued: “Defendant has private, retained counsel. The preliminary hearing in this matter was not lengthy.” (O.R. 145). The district court on May 12, 1994, issued an order addressing several of Appellant’s motions; the motion for a preliminary hearing transcript at state expense was not addressed (O.R. 153).
It is evident trial counsel did not act with due diligence in seeMng the preliminary hearing transcript. When he filed his first application for the transcript, it was not accompanied by a pauper’s affidavit. Since trial counsel had been retained, the affidavit would be necessary to show the court the defendant had no money for a transcript. This Court has stated that absent some specific showing of indigency by affidavit or testimony, this Court cannot speculate that the defendant was, in fact, without funds; this would be true even if counsel were court-appointed. Marton v. State,
A second application was filed May 31, 1994, accompanied by a pauper’s affidavit (O.R. 175, 177). The docket sheet shows that on June 2, 1994, the motions for continuance
The record shows an application to rehear defendant’s motion for continuance and request for transcript at public expense was filed June 7, 1994 (O.R. 228). The court on June 10 issued an order denying both motions (O.R. 283). The order denying was not filed until June 20; trial began that same day. The issue was not raised on the record during trial proceedings.
We find trial counsel did not act with due diligence in pursuing his request. Counsel was not present on the day the motion was set for a hearing. Therefore, the trial court acted properly in denying the motion. See 12 O.S.1991, Ch. 2, App. 1, Rules of the District Courts of Oklahoma, Rule 4(f).
We must also address another factor: whether the transcript would have been useful in cross-examining witnesses at trial. Appellant has also filed a claim counsel was ineffective based — at least in part — on his failure to obtain a preliminary hearing transcript, and we address the particulars of this factor below. See discussion of proposition 12, infra at opinion section VI. Suffice it to say here any failure of Appellant to have a preliminary hearing transcript was harmless, and no equal protection violation occurred.
Trial counsel did not exercise due diligence in support of his motion for a preliminary hearing transcript, and the trial court did not err in refusing to order one prepared at State expense.
B.
For his second proposition of error, Appellant contends his right to due process was violated when the court failed to order a professional examination to determine whether he was competent. The record reflects his attorney filed an application for determination of competency on June 20, 1994, the day trial proceedings began. In it, defense counsel believed Appellant was incompetent, as he appeared incoherent, was talking to himself, and holding his private parts during a conference with his attorney the weekend before trial. The attorney said Appellant kept asking for his attorney, as if he did not know who his attorney was, and he “continu
The statutes governing “competency” cover two requirements: a defendant must have sufficient ability to consult with an attorney; and the defendant must be able to understand the nature of the charges and proceedings being brought against him. 22 O.S.Supp.1992, § 1175.1; Smith v. State,
Appellant must make a threshold showing he is incompetent. If that is done by the filing of a proper application, the court must hold a hearing to examine the application. The court may also entertain other evidence pertinent to the question at that hearing. If the court finds the application raises a doubt regarding the defendant’s competency, an order for an examination by qualified medical personnel is entered to examine the defendant and determine if he can appreciate the nature of the charges; if he is capable of assisting his attorney; whether a defendant, if incompetent, can attain competency; whether the defendant is mentally ill, and whether he poses a threat to himself or others if released without treatment. 22 O.S.Supp.1993, § 1175.3. Following this initial determination and upon application, the court is required to hold a hearing on the competency issue. At that hearing, the defendant is presumed competent, and must prove by clear and convincing evidence he is incompetent. 22 O.S.1991, § 1175.4.
We find no error here, because we find Appellant failed to make the threshold showing. The applicable statute reads in pertinent part:
A. No person shall be subject to any criminal procedures after he is determined to be incompetent except as provided in Sections 1175.1 through 1175.8 of this title. The question of the incompetency of a person may be raised by the person, the defense attorney, or the district attorney, by an application for determination of competency. The application for determination of competency shall allege that the person is incompetent to undergo further proceedings, and shall state facts sufficient to raise a doubt as to the competency of the person. The court, at any time, may initiate a competency determination on its own motion, without an application, if the court has a doubt as to the competency of the person.
22 O.S. § 1175.2 (emphasis added); see also Phillips v. State,
It is well-settled in OMahoma that the doubt referred to in the statute is that doubt which must arise in the mind of the trial court. The trial court may look to the source of the information and motive in determining whether there is doubt which would justify a sanity hearing, and the existence of a doubt as to defendant’s sanity must arise from facts of a substantial nature. There must exist reasons to believe that the defendant’s claim of insanity is genuine and not simulated to delay justice, and the finding of the trial court will not be disturbed on appeal unless a clear abuse of discretion is shown.
Id. at 633. See also Russell v. State,
This doubt may arise in the mind of the court upon application for a continuance, motion for a new trial, motion in arrest of judgment, by ex parte affidavit or declaration of a bystander, or the court of its own motion; and while the court cannot actarbitrarily in the matter, it has the right to look to the source of the information, and come to a proper conclusion, from all the facts and circumstances, whether there is a doubt in his mind as to the sanity of the defendant. He may also consider the fact that the question of insanity was never raised, (quoting Johnson v. State, 73 Okl. Cr. 370, 121 P.2d 625 (syllabus 4)).
Id. at 9-10,
It is evident Appellant failed to meet the requirements of Section 1175.2 in this ease. A brief hearing was held, at which Appellant testified. During that hearing, he knew his name and identified Gassaway as his attorney; although he thought he was represented by other attorneys, he understood Gassaway was really his counsel. He knew he was charged with murder and that “they want to kill me.” He said he understood other punishments for murder but the death penalty was “the only one that’s sticking to me.” He also knew his age; the names, of his parents; the name of his church and his pastor’s name; the year and the approximate date he was incarcerated.
This is sufficient to show that Appellant knew the nature of the crime with which he was charged and the range of punishment. And even assuming he may have believed another attorney was his defense counsel — a statement which is contradicted by Appellant’s acknowledgement during questioning Mr. Gassaway was his counsel — this does not detract from the fact he was capable of assisting his attorney with his defense.
Based on the evidence before it, the court did not err in refusing to order a competency examination, as the facts were not “sufficient to raise a doubt” in the court’s mind concerning the defendant’s competency. See Fox v. State,
We see no abuse of discretion here, as we find the court’s ruling is reasonably supported by competent evidence. Siah,
C.
From the record it appears certain pretrial hearings in this case were not recorded. Citing Van White v. State,
We do not agree. We have since revisited that holding noting that the
primary need for a complete record in all death penalty proceedings is to allow an appellate court to determine whether the factfinder imposed the punishment of death as a result of any improper influence, and whether the evidence supports such a finding. In other words, the portion of the mandatory sentence review thatconcerned this Court in Van White and Kelly dealt with issues at trial, as it is during trial the jury or judge actually makes the determination whether the death sentence should be imposed. Therefore, that is the essential portion of the proceedings this Court requires to determine if the sentence were imposed in violation of the Eighth Amendment. And while this Court is also required to consider “any errors enumerated by way of appeal,” 21 O.S.1991, Sec. 701.13(B), those other errors do not necessarily always implicate the Eighth Amendment — or any constitutional provision, for that matter. If alternate means exist for this Court to make a determination without the complete transcription, it will do so, and reversal is not warranted. See Van White, 752 P.2d at 819 (rejecting Appellant’s argument that reversal was mandated because a motion hearing was not transcribed, as this Court could make a finding that the trial judge’s ruling was supported by competent evidence without the transcript).
Allen v. State,
Accordingly, we find no merit to this proposition.
III. JURY SELECTION ISSUES
For his seventh proposition, Appellant claims he was denied his right to a fair and impartial jury because the trial court improperly excused potential jurors who expressed reservations about the death penalty but said they could follow the court’s instructions.
This Court has held a party need not prove a juror’s bias against the death penalty with “unmistakable clarity.” Cooper v. State,
Appellant first calls our attention to comments by Richard Lynn Knight. Mr. Knight unhesitatingly told the court he could impose a sentence of life or life without parole; however, when the court asked him if he could “give meaningful consideration” to the death penalty, he replied “I don’t know if I could do that.” The court then explained death was a punishment option, adding that if a juror could “under no circumstances” consider all options, he could not serve on the jury. The following exchange then occurred
COURT: So I’m asking whether you could give meaningful consideration to each of those possible punishments and — including death by lethal injection — and agree to a verdict of death if that in your opinion was justified.
KNIGHT: No, sir, not death.
COURT: Could you — if you found beyond a reasonable doubt that the defendant wasguilty of Murder in the First Degree, and if the law would permit you to consider a death — a sentence of death, do you have such reservations about the death penalty that, regardless of the law, regardless of the facts and circumstances, you could not consider a verdict fixing death?
KNIGHT: No sir.
COURT: State may inquire if you wish.
MR. MACY: State would move he be excused, Your Honor.
COURT: Defendant may inquire if you wish.
MR. GASSAWAY: I have no questions.
COURT: I must reluctantly excuse you, Mr. Knight. Please return to the jury assembly room for further assignment.
From this, it is clear that under no circumstances could Knight follow the law and consider the death penalty as a punishment, even if the circumstances warranted it. There is no error here.
He next complains the court improperly excused Theresa Rochelle Hardeman. The court asked the same questions of Ms. Hardeman, and she gave the same answers as to punishments of life and life without parole. However, when the court asked her if she could give the death penalty, she responded “No, sir, I couldn’t.” When asked if her reservations about the death penalty would prohibit her from considering it, she said “I just don’t believe in the death penalty.” The court then asked her “[a]re your reservations such that no matter what the evidence turns up to be here, no matter the circumstances, you could not under any circumstance consider, not that you’d have to necessarily reach that verdict, but consider, meaningfully consider death by lethal injection?” Ms. Hardeman again replied “[n]o, sir.” At that point, the prosecution moved she be excused. Defense counsel asked her if she could think of a fact situation so horrible that she could say a defendant deserved the death penalty; she replied she could. Defense counsel then gave as an example “[l]ike if a guy had five babies and he lolled them all and tortured them and burned their bodies to hide the evidence and he did it just to be mean,” asking her if she could give it in that circumstance. She replied yes. When the court pointed out her answers were inconsistent, she gave equivocal answers. After being pressed, she answered no to whether she “could not, will not under any circumstances, consider the death penalty in this case,” adding “I couldn’t give the death penalty.”
This excusal was not error.
The last example Appellant cites occurred during questioning of prospective juror Prentice A. Hunt. He, too, did not hesitate in stating he could give either life or life without parole. When asked about the death penalty, he said he “would be a little hesitant,” adding the prosecution “would have prove to me without a shadow — I mean, they would have to go to the extreme to prove to me that he would deserve that, you know.” After explaining the penalty stage, the court again asked him if he could choose a punishment which was applicable, he replied he thought he could, but added “[w]ith all honesty I don’t think I could convict him to death, to be honest.” The juror said he had not made up his mind as to any issues in the case, but when it came to the death penalty, “[i]t’s like I couldn’t be comfortable with it is more of the term of it.” The court opined he hoped no one would be comfortable in assessing that punishment, asking him if he could give “meaningful consideration to the death penalty, along with the other two possible punishments.” Mr. Hunt replied: “[c]onsid-ering the way I was brought up, that’s a horror for me.” He explained his parents taught him “a wrong for a wrong don’t make a right,” and Appellant’s death would not “bring the other person back.” He finally agreed imposition of the death penalty would violate his conscience, that he did not “believe in death really, taking someone’s life.” After being pressed more, he said he “couldn’t go with the death penalty.... I couldn’t do it, Your Honor. Sorry, but I couldn’t, to be honest.” When defense counsel gave him the same hypothetical as Ms. Hardeman had been given, he said he might be able to give it. After more questioning by the court, Mr. Hunt essentially stated he could not guarantee he would follow the law if the death penalty were involved.
IV. FIRST-STAGE TRIAL ISSUES
A.
During trial, the prosecution presented photographs of Richard and Sharon Paisley as they were found in the house. Appellant in his third proposition of error claims the photographs were unduly gruesome and unnecessary, as he never disputed the identity of the victims or the cause of death.
This Court has held photographs are admissible if their content is relevant, unless their probative value is substantially outweighed by their prejudicial effect. McGregor v. State,
The photographs are relevant: they accurately depict the positions of the bodies as they were found, which corroborate the testimony of eyewitness Jackson; and tend to support the testimony of informant Jones. They also showed the nature and extent of the wounds, which corroborated the medical examiner’s testimony. This Court will not disturb the evidentiary rulings of the trial court on appeal absent an abuse of discretion. Cf. McGregor,
This proposition is without merit.
B.
After his arrest, Appellant was taken to the police station, where he was interrogated twice. The second time, after being read his Miranda
Appellant does not contend — as he cannot — that he invoked his right to counsel after being advised of his Miranda rights; he contends authorities continued their questioning after he told them he did not wish to speak. Accordingly, we need not address the situation where a suspect requested counsel. Edwards v. Arizona,
We begin with the observation “full comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.” Davis v. United States, 514 U.S. -, -,
Here, the detective testified Appellant’s answer to his question was equivocal, and he continued the conversation to ascertain whether Appellant intended to invoke his right to remain silent. After a review of the videotape,
[police detective] EASLEY: Pardon me?
CARGLE: Huh-uh.
EASLEY: OK, you don’t want to talk to us?
CARGLE: [without pausing] You guys gonna tell me what this is about?
[police detective] MITCHELL: Yeah, but you need to understand he just read you your rights, OK?
CARGLE: Uh-huh.
MITCHELL: And we’ve got certain directions that are given to us by the Supreme Court. OK? We would love to sit here, and I have no problem telling you what this is about. At all. OK? But for us to continue the court says we have to ask these questions, and that you have to be in agreement and it has to be your choice and it can’t by anything that’s forced upon you or, or tricked upon you or anything else, we don’t work like that. So, you know, that’s the question that’s on the floor right now, is if you wish to talk to us. It’s your choice. We’E be more than happy to explain to you what case this is and what all we’re talking about. But it’s your choice. You have — you have to decide whether you want to sit here and talk to us or not. OK?
CARGLE: All right.
MITCHELL: All right what?
CARGLE: I’ll talk to you.
MITCHELL: Are you sure? I mean, it’s your choice, your decision that’s your making, is that correct?
CARGLE: As long as I can find out—
MITCHELL: Sure—
CARGLE: — what’s going—
MITCHELL: — Oh, I don’t have a problem if that’s all your hangup is, is you want to know what this is about, I don’t have a problem with that. It’s just, you know, just so that you don’t feel that you’re being tricked or that we’ve threatened you — we haven’t threatened you in any way. We haven’t said that much to you, right?
CARGLE: Uh-huh.
MITCHELL: OK, but it has to be your choice that you do want to continue. All right? And as he said whenever he was giving your rights if that at any point you decide you don’t want to talk, you know, you don’t have to.
CARGLE: How—
MITCHELL: Just to continue, we have to do that, and we have to do what the court says.
CARGLE: How long you guys gonna hold me?
MITCHELL: How long? Well, this is going to be thoroughly investigated. OK? This is gonna — this is gonna depend entirely on what you’re gonna be able to tell us truthfully what happened. All right? You know a lot. We know that. You know a heck of a lot. Uh, the question—
CARGLE: About myself.
MITCHELL: Yeah, about yourself and about your involvement and about Todd’s involvement and all of that. OK? And that’s what it’s gonna depend on is just how cooperative and how helpful you’re gonna be. If your question is are you gonna get out tonight, no, no I don’t think you will. In fact, I’m sure you won’t.
CARGLE: Well—
MITCHELL: I mean, we’ve got too many questions that are being answered as we go on. That’s the whole purpose of the investigation, is to start to piece together what took place. OK? And you’re the one that can tell us your side. Todd is the one that can tell Todd’s side if he chooses. Unfortunately, the victims—
CARGLE: Todd?
MITCHELL: Uh-huh. Yeah. You don’t know who Todd is?
CARGLE: I know Todd. He — he supposed to be in this?
MITCHELL: Yeah, he’s supposed to be in this, too.
CARGLE: Well, I’m ready.
MITCHELL: Huh?
CARGLE: I’m ready.
Following this exchange, Det. Easley informed Appellant how they obtained the warrant for his arrest, and questioning began. During this conversation, Appellant denied all knowledge of the crime.
After reviewing the evidence, we hold Appellant’s initial actions did not indicate a desire to remain silent, but rather indicated a desire to ascertain what course of action the officers were going to be taking, and how that course of action would affect him. This was merely one factor in the totality of the circumstances surrounding the determination Appellant knowingly and voluntarily waived his right to remain silent. See Pickens v. State,
In light of this holding Appellant’s waiver was knowing and intelligent, we need not address Appellant’s “fruit-of-the-poisonous-tree” argument concerning the second conversation, during which he admitted being present at the scene at the time of the murders, but denied taking part. For the same reason, we need not address Appellant’s contention the testimony of Christopher Jackson must be suppressed.
This fourth proposition of error is without merit.
C.
For his fifth proposition of error, Appellant contends his conviction for the murder of Richard Paisley must be reversed because there is insufficient evidence to convict him of the crime. Appellant correctly
We begin where police began: with the evidence produced by Luke Jones. Before being jailed, Jones lived with Appellant and his family. Sometime the first part of October, Appellant asked Jones “if God would forgive him for murder.” After being assured by Jones God would do so, Appellant told him he was “going through some changes” with himself because he had murdered “a man and a woman” “out there on Spencer.” He told Jones someone named “Todd” had shot the man “and he had shot the woman” over “some bad weed deal.” He then told Jones after they got their money back, Todd shot the man with a Tech-9 semiautomatic pistol, and when the woman moved, he shot her with a .22 pistol.
After authorities obtained an arrest warrant for Appellant and served it on him, Appellant was being taken to a police car. While being escorted out, Appellant asked the patrolman accompanying him “which murders is this about.” The patrolman testified he said “[m]urders, more than one.”
The strongest evidence against Appellant was given by Christopher Todd Jackson. Jackson said he encountered Appellant and Todd Williams, and asked them for a ride. They agreed, but Appellant told Jackson they had to make a stop first and get his money. They all arrived at the Paisleys’ house and went inside. While Jackson accepted the offer of a beer
AppeEant contends this evidence does not show AppeEant aided, assisted, abetted or encouraged Richard’s shooting. In Eght of this and other evidence presented, we disagree. That AppeEant was concerned with the “murders” instead of one “murder” indicated he beHeved he was culpable for both. Additionally, AppeEant claimed he and WEEams went to the Paisleys’ house to get a refund for some bad marijuana; despite this, there is no evidence they returned the defective product, or even had it with them. However, both had loaded guns. The State contends on appeal, and we agree, AppeEant seemed concerned, not because WEEams went to the Paisleys’ bathroom, but because he took too long in there, as if he were expecting something to happen.
There is also the evidence of a third gun: photographs clearly show a loaded .22 pistol was in a box on the floor between the coffee table and the couch where Sharon was sitting. The photos show Sharon’s hand in the box, inches away from the weapon. Therefore, in the Eght most favorable to the prosecution, AppeEant could have seen Sharon reach for the weapon in an attempt to save her husband, and took action to see she was not successful. Even if AppeEant did not see what Sharon was reaching for, he would have been able to see her actions and take steps to ensure she did not interfere with WiEiams’ shooting of Richard.
D.
For his sixth proposition of error, Appellant claims the prosecution improperly vouched for the credibility of Christopher Todd Jackson. Jackson, the eyewitness to the crimes, testified under an immunity agreement, which the prosecution admitted into evidence. Appellant claims this admission, as well as comments in closing argument, constituted error.
We first observe defense counsel failed to object to the prosecutor’s comments, thus waiving all but plain error. Mayes,
“Argument or evidence is impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness’ credibility, either through explicit personal assurances of the witness’ veracity or by implicitly indicating that information not presented to the jury supports the witness’ testimony.” Nickell v. State,
Appellant also claims introduction of the agreement itself into evidence was error. Defense counsel did not object to the admissibility of the immunity agreement, and has therefore waived all but plain error. Simpson v. State,
As we said in Nickell, “[u]se of the ‘truthfulness’ portions of these [plea] agreements becomes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness’ testimony.” Id.
Here, the agreement states Jackson understood his immunity was based on the claim he was not a principal in the murders. It also states that should evidence to the contrary “become known,” the agreement will become void. He also agreed to subject himself to scientific testing to reassure law enforcement officers the information he gave was correct; it also stated Jackson understood his information “must be capable of being corroborated by independent evidence.” He also agreed to give fingerprint and palm prints to police.
The agreement in this ease does not constitute impermissible vouching. Although the agreement said Jackson’s information must be “capable” of being corroborated independently, it does not state authorities have done so or would be able to do so. Taken as a whole, we interpret this as a statement that should authorities obtain evidence implicating Jackson in the future, the agreement would be void.
Even if this were error, we have held that in the absence of an objection it is harmless “unless it had a ‘substantial influence’ on the outcome, or leaves the reviewing court in
V. SECOND-STAGE TRIAL ISSUES
A.
In his eighth proposition of error, Appellant complains of two improper comments by prosecutors during second-stage closing argument. There was no objection to the first comment; and we find no plain, reversible error to the comment, when the prosecutor argued Appellant was a continuing threat to society and asked the jury to do justice. Allen,
In the second comment, which drew an objection, the prosecutor said he knew he was asking a lot of the jurors, and their job was going to be hard. He then commented he had to make the decision to seek the death penalty, then present evidence to show it was deserved. He added the officers had to present evidence to him before he could make that decision; and that everyone had fulfilled their duties to get as far as the case had progressed. He then said Appellant was a volunteer in the process because he had initiated the act. He repeated the jury’s job was hard, but “[o]nly the 12 of you can finish the job by going up in that jury room and bringing back a verdict of death. Unless you do that, the efforts of the police department and my office have all been in vain.” Appellant objected to the comment on the basis of societal alarm. We find no societal alarm present here, and do not otherwise review it except for plain error. Simpson,
Accordingly, this proposition is also without merit.
B.
In his ninth assignment of error, Appellant claims the broad, unlimited use of victim impact evidence in his case violated the Eighth Amendment to the United States Constitution because the prosecution was allowed to present highly emotional, irrelevant evidence to the jury.
The prosecution presented two witnesses who testified as to the impact of the victims’ death. Of the two, the most emotional presentation came from Nancy Davis, Richard Paisley’s sister, who read a prepared statement detailing the life of Richard from childhood until his death.
1.
Appellant acknowledges that the Supreme Court in Payne v. Tennessee,
In overruling South Carolina v. Gathers,
In other words, victim impact evidence is permissible because “the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” Payne,
2.
But the ability to present victim impact evidence does not, as Appellant suggests, mean the “floodgates have opened” and that everything the prosecution wishes is admissible. While the rules of evidence are not to be applied in a mechanistic fashion in the sentencing stage of a capital case, they nonetheless do apply. See Fox v. State,
However, we believe § 2403 is not the ending place, but the starting point. The underlying principles in Payne seem to indicate more scrutiny is needed. As noted above, the Court seemed to require a balancing to keep the scales of a capital trial from being “unfairly weighted” in favor of one side or the other. Payne,
3.
This case is an example of victim impact evidence coming perilously close to weighting the scales too far the other way. In the face of the highly emotional statement by Ms. Davis, Appellant presented only his minister, who testified he used to have a close relationship with Appellant, who came from loving and earing people and who during the past few years “just kind of got apart” from his parents and the church.
We realize the difficult situation in which a trial court is placed: in most situations, the trial court must determine whether victim impact evidence presented by the prosecution is admissible even before the Court knows whether a defendant will present any appreciable amount of mitigating evidence. But we are also aware it is not the amount of evidence which is presented, but the opportunity for each side to present evidence which the Payne Court addressed; indeed, the Payne Court made it clear it would leave to the states the details on how to devise procedures and remedies to address the problem. Payne,
We find existing statutes, when properly utilized, contain sufficiently stringent guidelines outlining the use of victim impact evidence. Although the reference to victim impact evidence in Title 21 is not defined, there is a definition in Title 22:
“Victim impact statements” means information about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family, or person designated by the victim or by family members of the victim and includes information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim’s opinion of a recommended sentence;
22 O.S.Supp.1993, § 984.
Consistent with our decision in Mitchell v. State,
To further assist the jury in using victim impact evidence, we hereby promulgate the following instruction, to be used in all future capital murder cases in which victim impact evidence is presented:
The prosecution has introduced what is known as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim’s death on the members of the victim’s immediate family. It is intended to remind you as the sen-tencer that just as the defendant should be considered as an individual, so too the victim is an individual whose death may represent a unique loss to society and the family. This evidence is simply another method of informing you about the specific harm caused by the crime in question.You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to a moral inquiry into the culpability of the defendant, not an emotional response to the evidence.
As it relates to the death penalty: Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim’s family is not proof of an aggravating circumstance. Introduction of this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstance has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstanee(s) found outweigh the finding of one or more mitigating circumstances.
As it relates to the other sentencing options: You may consider this victim impact evidence in determining the appropriate punishment as warranted under the law and facts in the case.
The instruction is to be used in all future capital murder trials where victim impact evidence has been introduced, and is effective from the date this opinion is published.
These guidelines and this instruction, together with our power to modify or remand under Mandatory Sentence Review,
With these guidelines in mind, we turn to the victim impact evidence presented at Appellant’s trial.
4.
The evidence presented in this case exceeded the statutory framework of admissible evidence. The prosecutor himself seemed to acknowledge as much when, in discussing the evidence before the beginning of the second stage, told the court “[t]he women are going to be very emotional. The man probably will make more — we feel he can do a better job in explaining what the impact has been.” The record before us does not reflect whether either Ms. Davis or Ms. Howell succumbed to their emotions during their testimony (at which point the trial court would have a duty to take appropriate action, see Mitchell,
In discussing this, we in no way hold the emotional impact of a victim’s loss is irrelevant or inadmissible; we simply state that, in admitting evidence of emotional impact, especially to the exclusion of the other factors, a trial court runs a much greater risk of having its decision questioned on appeal. Cf. Saffle v. Parks,
Appellant also complains the court allowed photographs of the victims while they were alive as a part of the victim impact evidence. This Court has held such photographs are generally inadmissible, again based on their relevancy to the issues presented at trial. Staggs v. State,
The consequences of this evidence are addressed more fully in the Mandatory Sentence Review, below.
C.
In his tenth proposition, Appellant challenges several aggravating circumstances on both evidentiary and constitutional grounds.
1.
He first contends there was insufficient evidence to support the murders of Richard and Sharon Paisley were heinous, atrocious or cruel. We shall begin with Richard.
a.
Testimony is undisputed that Todd Williams approached Richard and first shot him in the chest.
b.
The question is not so easy as to Sharon Paisley. The medical examiner found one entry wound to her head. Despite evidence there may have been more than one shot through that wound — in addition to the eyewitness account stating Appellant shot Sharon twice, the police firearms examiner opined the amount of lead found was more than would be present had only one .22 caliber bullet been fired — there was no substantial evidence Sharon was conscious after the first shot was fired. In fact, the medical examiner testified although it was possible Sharon remained conscious after the shot, it was more likely she did not. Based on this evidence, we find no physical or mental suffering. Stouffer v. State,
2.
Appellant next contends the heinous, atrocious or cruel aggravating circumstance is unconstitutionally invalid. We addressed this argument in Cooper,
3.
Appellant next contends there was insufficient evidence to prove he committed murder to avoid arrest or prosecution. The jury found this aggravating circumstance pertained to Sharon Paisley, but not to Richard Paisley.
The evidence shows that Williams came out of the back of the house and began shooting Richard Paisley. While Richard Paisley was being shot, Sharon Paisley dived to the floor from the couch on which she had been sitting. When she did so, Appellant approached Sharon and fired one shot into her head before his pistol jammed. After clearing the weapon, Appellant fired a second shot into Sharon’s head.
Evidence was also introduced at trial that Appellant participated in the robbery of Janet Denson and her family. Although he threatened family members, he left without killing the potential witnesses, leaving them to identify him for prosecution of that crime; as a result, he was convicted of that robbery.
In the light most favorable to the prosecution, the evidence shows Appellant learned from his previous experience, and shot Sharon to keep her both from interfering with the murder of Richard and to eliminate a possible witness to Richard’s murder. See Romano v. State,
4.
Appellant next contends there was insufficient evidence to support the aggravating circumstance Appellant knowingly presented a great risk of death to more than one person. The evidence shows Appellant and Williams had been to the Paisley house earlier, when they purchased marijuana. When they returned, each had a weapon. When Appellant entered the house, he knew both Richard and Sharon were present. After Williams started shooting Richard Paisley, Appellant went to Sharon Paisley and shot her in the head twice. In addition to aiding and abetting in the death of Richard Paisley, Appellant deliberately murdered Sharon Paisley. The death of these two people supports the jury’s finding Appellant knowingly created a great risk of death to more than one person. Sellers v. State,
5.
Appellant also challenges the constitutionality of this aggravating circumstance. This, too, has been determined. See Cartwright v. Maynard,
6.
Appellant next contends OMahoma’s “continuing threat” aggravating circumstance is unconstitutionally overbroad. Appellant acknowledges this, too, is well settled by stare decisis. See Cooper,
For the reasons stated above, we find insufficient evidence to support the jury’s finding the murder of Sharon Paisley was especially heinous, atrocious or cruel. Otherwise, Appellant’s tenth proposition of error is without merit.
VI. COMPETENCY OF COUNSEL
In his twelfth proposition, Appellant claims his counsel was ineffective. He claims counsel was ineffective because he failed to present timely motions for preliminary hearing transcript and a competency hearing; he failed to object to the introduction of highly prejudicial victim impact evidence at the sentencing hearing; and failed to prepare and present adequate mitigating evidence.
To prove ineffective assistance of counsel, Appellant must show not only that his attorney’s performance fell below acceptable levels of professionalism, but also that this substandard performance had an effect on the outcome of the proceeding. Unless an appellant can show both, “it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington,
Concerning the failure to prepare and present more mitigating evidence, the fact a defense attorney could have done more investigation into a defendant’s background for mitigating evidence alone does not establish ineffective assistance of counsel. Dutton v. Brown,
Appellant claims it was error not to put Appellant’s parents on the stand. We disagree. In light of the father’s remarks, it is very likely he would not have served the cause of his son well.
In Appellant’s claim counsel was ineffective for failing to prepare earlier a motion for determination of competency, we need not address whether counsel’s performance was substandard, as Appellant can show no prejudice. We held in proposition 2, above, that the court did not err in overruling Appellant’s motion because it did not state sufficient facts to raise a doubt as to Appellant’s competency. Such a motion would be no more effective simply because it was filed at an earlier time.
The complaint dealing with the preliminary hearing transcript is more involved. We noted above that, based on the record before us, the court overruled the motion for a preliminary hearing transcript at State expense because Appellant’s trial counsel failed to be present at the time set for hearing on the motion; accordingly, counsel failed to exercise due diligence in seeking the transcript, and the attorney’s performance fell below acceptable levels of professionalism.
However, Appellant cannot show this substandard performance had an effect on the outcome of the proceeding. We have reviewed the testimony of all witnesses and compared that testimony to the testimony presented at trial. We find the testimony is strikingly consistent. Furthermore, defense counsel’s cross-examination of the witnesses was spirited and thorough; on at least one occasion, defense counsel attempted to impeach a key witness by calling to his attention what testimony he presented at the preliminary hearing. Because Appellant cannot show the transcript would have been useful in impeaching testimony at trial, he cannot show prejudice, as “it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland,
We therefore find Appellant’s trial counsel was not constitutionally ineffective. This proposition is without merit.
VII. CUMULATIVE ERROR
For his thirteenth and last proposition, Appellant claims the accumulation of errors at his trial dictate reversal. We addressed the lack of a transcript (proposition 1) and the sufficiency of the evidence concerning the Richard Paisley murder (proposition 5) above. We found no error in the court’s failing to order a competency examination (proposition 2); in allowing photographs of the victims (proposition 3); in admitting Appellant’s statements into evidence (proposition 4); in allowing evidence of the prosecution agreement between Jackson and the district attorney’s office (proposition 6); in excusing certain prospective jurors from the panel (proposition 7); no plain error in the comments made by the prosecutors in closing arguments (proposition 8); no error in use of the aggravating circumstances (proposition 10); and no incompetence of counsel (proposition 12).
Accordingly, this proposition of error is without merit.
VIII. MANDATORY SENTENCE REVIEW
This Court is required by 21 O.S.1991, Sec. 701.13(C) to determine whether (1) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury’s finding of aggravating circumstances as enumerated in 21 O.S.1981, Sec. 701.12. We shall address the second portion first.
As to the Richard Paisley murder, the jury found the following aggravators: Appellant was previously convicted of a felony involving the use or threat of violence to the person; Appellant knowingly created a great risk of death to more than one person; the murder was especially heinous, atrocious, or cruel; and there existed a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society. The State alleged, but the jury did not find, that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.
We found in proposition 10, above, that the evidence supported the jury’s finding the murder of Richard Paisley was heinous, atrocious or cruel. We also found above that Appellant created a great risk of death to more than one person.
Appellant does not contest the sufficiency of the evidence as it pertains to continuing threat, and we find it sufficient. The victim of a June 1991 burglary, Janet Den-son, testified that at approximately 2:30 one morning she answered the doorbell to find herself staring down the barrel of a long-nosed revolver. The person wielding the pistol told her she was being robbed. After gaining entry and pressing the pistol to her head, the robber took her rings and ordered her on the floor while two others assisted in the robbery. When Ms. Denson’s husband came down, he, too, was threatened with a firearm and told to he on the floor. Ms. Denson thought she would be killed; however, one of the robbers told the one named “Mark” they had been spotted, they left after approximately 45 minutes, taking several of the Densons’ possessions. She identified Appellant as the apparent leader of the robbers and the person who held the weapon to her head.
In addition to supporting the continuing threat aggravating circumstance, his conviction for that robbery supports the jury’s finding he was previously convicted of a felony involving the use or threat of violence to the person.
Concerning the murder of Sharon Paisley, the jury found the following aggravators: Appellant was previously convicted of a felony involving the use or threat of violence to the person; Appellant knowingly created a great risk of death to more than one person; the murder was especially heinous, atrocious, or cruel; the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and there existed a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society. We found in proposition 10, above, that the evidence did not support the jury’s finding the murder of Sharon Paisley was heinous, atrocious or cruel. We did find sufficient evidence to support the finding Appellant created a great risk of death to more than one person. We also found sufficient evidence to support the jury’s finding Appellant killed Sharon Paisley to avoid arrest or prosecution. The same evidence as discussed in the Richard Paisley murder was used in the Sharon Paisley murder to support the aggravating circumstances Appellant presented a continuing threat to society and he was previously convicted of a felony involving the use or threat of violence to the person.
We find the aggravating circumstances listed more than outweigh the mitigating evidence offered by Appellant. We now address the first question: whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor.
As noted above in our discussion of proposition nine, we find error in the amount and type of victim impact evidence presented to the jury. However, as our discussion of the aggravating circumstances shows, the victim impact evidence was not the only evidence presented during the sentencing stage.
As we noted earlier, the victim impact evidence is different from the evidence used to support the aggravating circumstances: the prosecutor uses the latter in an attempt to convince the jury the defendant is an appropriate candidate for the death penalty; the former is used to show the jury the victim deserved life. It seems clear that, although the victim impact evidence is designed to operate independently of evidence used in support of aggravating circumstances, the function of that evidence is the same: to give the jury “a measure of the seriousness of the offense and therefore ... a standard for determining the severity of the sentence that will be meted out.” Payne,
This is a classic trial error, as it is one “which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Bartell v. State,
IX. CONCLUSION
Appellant did not challenge his conviction for Count III, Possession of a Firearm After Former Conviction of a Felony. Therefore, the judgments and sentences of the trial court on all convictions are hereby AFFIRMED.
Notes
. In so doing, we note the following: the Petition in Error in this case was filed January 6, 1995; it was fuEy briefed and at issue July 6, 1995; and it was submitted to this Court on July 11, 1995.
. The docket sheet reads as follows: "State appears DFS atly does not both motions are overruled for failure to present.” (Supp O.R. 40).
. Nor are we influenced by defense counsel's motion for rehearing on the issue. We find nothing in any rules requiring a trial court to reconsider a motion after it was denied for failure to present. We do note that defense counsel's request the trial court reconsider its decision was filed on June 7, less than two weeks before trial. We also observe, as Appellant did, that the court ordered the preliminary hearing transcript prepared on July 6, 1994, as a part of the appellate record; and that the transcript was filed July 14 with the district court clerk. He cites this in support of his claim the reporter could have prepared the transcript in a timely manner for use at trial. This fact we do not consider. Appellant has presented nothing showing the court reporter did not begin work on the transcript until ordered to do so, even though she knew Appellant had been convicted of a capital crime, an appeal of which is automatic. More important, we refuse to engage in 20-20 hindsight by using information the trial court could not have in front of it at the time defense counsel asked the court to reconsider its ruling. The issue is whether trial counsel used due diligence in attempting to obtain a copy of the transcript, not whether the transcript could have been prepared in a timely fashion. Here, he did not.
.Appellant points out that this Court in Spain v. District Court of Tulsa County,
. O.J. Simpson is a former professional athlete and actor who was charged with the murder of his wife and her friend. The Simpson trial generated a great deal of nationwide publicity.
. We are, of course, cognizant there is a legal difference between sanity and competency under Oklahoma law. Cf. Sections 1161 through 1170 of Title 22, and Sections 1175.1 through 1175.8 of Title 22. However, we find no reason why the term “doubt" as used in the statutes dealing with sanity cannot be used in statutes dealing with competency to the extent the statutes govern trial proceedings.
. Although he made a statement as an officer of the court, Appellant’s attorney did not testify in support of the application.
. Miranda v. Arizona,
. "No" is the word Det. Ron Mitchell initially used to describe Appellant’s attitude during the hearing held to determine the voluntariness of Appellant's statements. During the hearing, Mitchell ultimately explained he was uncertain what Appellant's negative response concerned. He testified that because he was uncertain what Appellant’s wishes were, he continued to talk to him to clarify those wishes. As the subsequent discussion shows, it is evident Appellant said "no,” not because he did not wish to talk, but because he did not know why he was at the police station. Once that was explained, he readily indicated his willingness to discuss the case.
. The videotape of this first interview was not played for the jury. However, it was made a part of the record on appeal, and we use it to help determine the issue before us.
. Appellant contends Jackson was an accomplice. We find no evidence to support this theory. Even Appellant did not implicate Jackson in the murders, although he had the opportunity to do so.
. The prepared statement, interrupted only once, covered 12 pages of transcript. Ms. Davis, several years older than Richard, began with an anecdote from Richard’s life at age four (he was 33 at the time of his death). She related the foEowing: "On coming home and finding my mother crying and unwilling to share her sorrow with me, Dick went over to her, placed his little arms around her and said, don't cry, mommy. I'm here with you. That's all it took. Dick was sensitive, Dick was loving.” She also related that as a child, Richard collected fishing worms for local fishermen; he exceEed in sports, and was the pitcher and captain of his baseball teams. She recaUed a beach vacation they shared when Richard was eight. He got sunburned, and when Ms. Davis expressed concern, "Dick replied, I'll tell them it doesn't hurt and that’s what you’re supposed to get at the beach. He never complained. He made lemonade out of lemons.” At that point, she identified a picture showing a proud Richard with a torch he carved out of wood for the Special Olympics for State Youth Services. The picture shows Richard by the carving, which displays a blue ribbon
he won for the art work. She also identified other pictures depicting carvings Richard did. Defense counsel objected to one picture of Richard, as the witness had written the dates of his birth and his death on the back. After this interruption, Ms. Davis continued with her written statement, relating that during a financiaEy hard time, Richard lived in a tent on the coEege campus to save money for coEege, adding: "He asked for nothing. He would give you the shirt off his back.” The entire family was proud of him when he graduated with his degree in parks and recreation and business administration; and the family became even closer after their parents died. He took control of a local park and made a success of it. She also related how he personally raised $15,000 for a fireworks display in 1984, rather than spend county money on it; the display "is still talked about today.” She recounted how Richard rose through the ranks of the state park system, but yearned to be an artist instead. "Before departing for Oklahoma [abandoning his parks career for an art career], Dick told his beloved famEy, quote, 'You’ve got to have a dream, believe in yourself, and reaEy enjoy
The weekend of September 24, 1993, was to be his last, as he was planning to move back home. She recounted how her last contact was August 8, when she received a thank-you card with a letter
for his 33rd birthday remembrance, to which he affixed this guardian angel [indicating]. That was typical of Dick. He was so happy to be coming home. We couldn’t wait. Dick was our light. That light went out the afternoon of 27 September 1993, when we were notified of his and Sharon's tragic deaths. As word spread through family members, friends, co-workers, and acquaintances — and many are still learning about this and contacting us — there was disbelief, denial, anger, outrage, bitterness, sadness, and sheer heartache nothing can heal. We didn’t even have the chance to say goodbye. What it meant to lose them no one will ever know. No one can pretend to know exactly how we feel. In order to know the devastation, pain and suffering, you would have to experience the same things yourselves. We hope you never do.
She eulogized him as a good kid and adult, who was encouraging to teammates. She related how a former boss shared a stoty from 1991, when
Dick told him not to buy a Christmas tree, that he would bring him a special one from a tree lot he was managing as a second job. With rosy cheeks, Santa — Dick—showed up outfitted in a full Santa Claus suit to deliver the tree and a bag full of toys for his little boy. That was a special Christmas for Phil Gain’s son. Dick planned to do it every year. He was our Santa, his last Christmas with us. Christmas will never be the same.
Another friend remembered him for his "spunk and the sparkle in his eyes." Another friend remembered how he also taught several outdoor programs to girl scout troops. Yet another imagined his presence "as that of a glorious rainbow brightening a cloudy day.” Ms. Davis concluded with the following:
He made us laugh. We don’t laugh much now. We need Dick. We want him back. We did not know the afternoon of September 27 what sorrow that day would bring. When we learned Dick's heart of gold had stopped beating, and we couldn't do a thing. Oh, how we loved to see Dick's smile, to be together in the same old way. There is never a day that Dick is not foremost on our minds. Our hearts still ache with sadness, heartache nothing can heal, and the tears continue to flow. We’re not the same without him. Everything is emptier now. Oh, we miss Dick so, and we want him back. Though his smile is gone forever and his hands we can not touch, we have precious memories of Dick, the one we love so much. We knew a family's joy when Dick was bom and felt the love and pride grow as he grew to manhood. Our joy and thankfulness for having had him as a wonderful brother and love for him and pride still remain forever besides the horrendous pain and suffering that knows no end. We want justice for him and Sharon. There must be justice. They say that time heals all sorrows and helps you to forget, but time so far has only proved how much we miss Dick yet. Sadly missed by Barbara, Earl, Nancy, Buck, Ed, Jeannette, Terry, Donna, Harold, Rita, Shirley and Ed Howell, and families, and Dick's many, many friends throughout this country who loved him so. That none of you will ever have to lose someone so near and dear to you in such a senseless way as this is the Paisley’s prayer for you. God bless you.
Defense counsel did not cross examine.
. She testified how much Sharon loved animals, always finding strays and bringing them home, taking care of them, and even taking them to the vet. Sharon was described as "one of the most alive people I’ve ever known. There was just something about her. She — she just sparkled, and there was a brightness about her. She was our sunshine.” Ms. Howell noted Sharon made the best of every situation. She said the two always exchanged recipes, etc. She related how she mailed a box of chinkapins, nuts from North Carolina, to Sharon, "[b]ut she didn’t ever get to open them.” She also identified pictures of Richard and Sharon together, pictures of Sharon with her cat and one of Richard with his torch. She observed:
"I can’t tell you how much I love Sharon.... She — she was everything to me. She was my friend. We shared everything. And there’s never a plan that I ever had that didn’t include her. She was a wonderful, loving daughter, and we enjoyed being together so much. And we were so looking forward to her coming home. They were already packing and getting ready to come home, and we were already making plans about being able to spend some time together.”
Her last contact was when Sharon called the Sunday before her death to wish her father a happy birthday. Again, defense counsel did not cross-examine.
. We need not address the implications inherent in the last phrase of this definition, “and the victim’s opinion of a recommended sentence” in this opinion, as the victim's relatives did not express an opinion as to the appropriate punishment. We would, however, refer the trial courts to language in both the Payne opinion itself and a concurring opinion which indicates such a recommendation may not pass scrutiny on appellate review. See Id.,
. This disposes of Appellant's contention on appeal the victim impact evidence is a “super ag-gravator" which will always be present in a capital case. The answer lies in the obvious differences between victim impact evidence and aggravating circumstances. Evidence supporting an aggravating circumstance is designed to provide guidance to the jury in determining whether the defendant is eligible for the death penally; victim impact evidence informs the jury why the victim should have lived. Even if victim impact evidence is present in every case, this does not relieve the prosecution of its burden to prove beyond a reasonable doubt the aggravating circumstance it has alleged. The two kinds of evidence are not similar: that a victim may have been a great person who will be missed by his friends and relatives does not go toward proving a defendant is a continuing threat to society, that the victim was killed so the defendant could avoid arrest or prosecution, that the victim suffered torture or serious physical abuse before he died, or any other aggravating circumstance the prosecution might allege. Because the jury’s discretion still is narrowly channeled by the requirement they must find at least one aggravating circumstance beyond a reasonable doubt, the death penalty does not become overbroad, and Appellant’s contention this is an Eighth Amendment violation fails. See Windom v. State,
. This instruction is tailored to Capital Murder trial procedure. However, the provisions of 22 O.S.Supp.1993, § 984 et seq., are not restricted to death penalty proceedings. Trial Courts should tailor victim impact evidence instructions to apply to the type of trial in which it is presented.
. Specifically, 21 O.S.1991, § 701.13(C) provides:
With regard to the sentence, the court shall determine:
1. Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
2. whether the evidence supports the jury's or judge’s finding of a statutory aggravating circumstance as enumerated in Section 701.12 of this title.
Here, rather than the latter question, we are concerned with the former.
. The medical examiner testified she could not determine the order in which the three shots to Richard Paisley occurred. Here, that is not determinative, as the eyewitness, Christopher Todd Jackson, related the series of events. This series of events was corroborated by the statement Appellant gave to authorities.
. Appellant’s attorney has filed an application for leave to supplement the record on appeal in accordance with Rule 3.11 of this Court’s rules. The application, submitted in connection with Appellant’s contention his counsel was incompetent, deals with a proposed affidavit of Appellant's mother, who did not testify in the in-camera hearing. The application indicates the affidavit would state that, if Appellant’s mother had been called to testify, she would have presented information about Appellant’s childhood, his schooling, his learning disabilities and his medical difficulties. In light of the record made by Appellant’s trial attorney (which states essentially the same things), we find no reason to grant the application, as we can determine from the record that, even if presented, this information would not have materially benefitted Appellant as to the jury’s determination of sentence. Accordingly, the application to supplement the record on appeal is denied.
Concurrence Opinion
specially concurring.
I acknowledge and accept the fact that the Supreme Court of the United States ruled it is permissible under the Constitution of the United States for a state to pass laws that would allow “victim impact” evidence to be
I believe that the purposes of sentencing should be to tailor a punishment to fit the defendant. Simply put, we should be limited to determining if under the law the defendant deserves to die for his actions. With this decision, we are shifting some of the emphasis to the victim. I believe that this will introduce an arbitrary factor into the sentencing that has nothing to do with the defendant. Consider two scenarios of a crime where a robber kills the victim during the course of a robbery. In both, the robber has selected his victim at random and does not know anything about him. In the first, the victim is a minister of the gospel that is well loved by his family. He has never been in any trouble and has a family of a devoted wife and six small children who are dependent upon him for their entire support. In the second, the victim is a drug dealer who has been convicted of selling drugs to junior high school students. He does not have a family, or what family he does have would testify that he did not deserve to live and no longer meant anything to them. I think everyone would agree that the fives and lifestyles of these two victims could have a major impact upon the sentence received. Also, the lifestyles and fives of the victims do not have anything to do with the defendant himself.
I disagree with the thought that the State should be able to balance the mitigating evidence of the defendant’s character and the impact that he has on his family with evidence of the impact of the death of the victim on his family. Sentencing is not a matter of balancing or comparing lives. It is a matter of determining what should be done with the defendant because of the crime that he committed. When a defendant presents his impact evidence he is offering it to mitigate and rebut the State’s evidence of aggravation introduced to show the defendant deserves to die. The State may contest this through cross examination and presenting conflicting evidence in rebuttal. This is the proper method to counter the defendant’s evidence. It is not a contest to determine who has the better right to live and who most deserves to die.
However, as I previously stated, I accept the fact the Supreme Court has said the U.S. Constitution does not prohibit this type of testimony, and I cannot find anything in the Oklahoma Constitution that would contradict this. I reluctantly concur that victim impact testimony that is properly limited, as indicated in this opinion, can be used.