Cheney v. State

CHENEY, Appellant, Garry Michael Oklahoma, Appellee. STATE F-94-220.

No. Appeals of Oklahoma. Court of Criminal 8, 1995. Dec. Schultz, Smith, Day

A.J. Sarah Assistant Attorneys, County District Tulsa District At- Office, Tulsa, torney’s at trial. for state Pybas, Appellate D. Jamie Assistant De- fender, Capital Appeals Direct Division Okla- Norman, Indigent System, homa for Defense appellant appeal. on Loving, Attorney Susan B. General of Oklahoma, Blalock, A. Diane Assistant Attor- General, ney City, appellee Oklahoma for on appeal.

OPINION

CHAPEL, Presiding Judge. Vice

Garry Cheney by jury Michael was tried Court, County in Tulsa District Case No. CF-93-2001, Degree and convicted of First Murder, Aforethought Malice in violation of O.S.1991, jury § 701.7.1 After the found murder, guilty proceeded of his case capital sentencing phase of trial determine whether should be sen- imprisonment, imprison- tenced to life life possibility parole, ment without of or support request death. of its for the penalty, alleged aggra- death the State three (1) vating circumstances: the murder was purpose avoiding for committed or preventing prosecution;2 a lawful arrest or (2) probability the existence of a defendant would commit criminal acts vio- continuing lence that would constitute a (3) society;3 threat to murder heinous, especially victim was atrocious or involving cruel mental tor- and/or jury only aggravating ture.4 The found one circumstance —that the murder was commit- heinous, especially ted in an atrocious or cruel manner —and sentenced verdict, death. In accordance with the Beasley imposed the Honorable B.R. penalty. Cheney appealed death his murder Danielson, Lyons, Mark Lyons Kevin & conviction and death sentence to this Court. Clark, Tulsa, conviction; defendant at trial. affirm We murder how- O.S.1991, 1.Cheney pleaded 701.12(5). § also nolo contendere to Posses- sion of a Firearm After Former Conviction of a O.S.1991, Felony, § in violation of 21 1283. The O.S.1991, 701.12(7). § 3. 21 accepted plea imposed trial court his a ten (10) year prison sentence for the firearms viola- O.S.1991, 701.12(4). § 4. 21 appeal, Cheney challenge tion. On does not possession conviction sentence for of a fire- arm.

ever, modify Cheney’s Teipel we death sentence to seconds. also testified the time be- imprisonment possibility life without the tween the first and last shot was three to parole legally because the evidence was in- fired, four seconds. After the shots were imposition sufficient to of the Teipel got up, ran towards the woman and penalty death in this case. concluded the woman was dead. Gary parking ga- Sheets was also in the FACTS rage at shooting. the time of the He testi- Shortly p.m. Friday, April after 5:00 fied he heard a woman scream then saw a wife, Marga- shot and killed his ramp woman run down the in front of him. Cheney, in parking garage

ret at the Sheets stated a man ran behind the woman (“Oxy”) budding Occidental Oil and Gas caught up point, then with her. After that afternoon, downtown Tulsa. Earlier however, hap- Sheets was unclear about what Cheney purchased pistol a .45 caliber pened. noise, Sheets said he heard a loud black Talon bullets from the Golden Pawn woman, standing saw the man over the then pawnshop. they Several witnesses testified heard more loud noises. Sheets honked his parking garage saw in the earlier horn shooting when he realized the man was that afternoon. the woman. Sheets stated the man crouched Teipel Oxy Claudia parking the down and ran towards the stairwell. Sheets garage approximately p.m. at 5:04 that Fri- twenty estimated the whole incident lasted day approached afternoon. As she her car seconds and stated the time between the first garage, on level H of Teipel the noticed a and last shot was five seconds. up woman and a man one level from her. Other witnesses also heard shots fired in spraying The woman was the man in the face Oxy parking garage shortly after 5:00 with a Teipel substance that to believed be p.m. Friday afternoon. Witnesses testi- mace or a Teipel similar substance. estimat- they pause fied heard one shot then a fol- sprayed ed woman the man for ten sec- lowed several other shots. One witness onds. Teipel The woman’s back was to lapse testified time between the first and facing the man was her. The man had his seconds; last shot was four another witness hand on Teipel the woman’s elbow and heard lapse testified the time six five to sec- “he-he-he-he-he.”5 saying Teipel the woman onds. woman, did not see the man strike the she gun facts, did not see a and she did not In hear the addition to these the State intro- say anything. man spraying After man duced evidence that and his wife face, in the ramp going through woman ran down the were a divorce at the time of Teipel’s toward car Margaret Cheney’s February and the man ran after murder. Teipel fall, her. saw the woman then heard Mrs. filed for divorce and gunshot. point, Teipel sought At that protective limiting Cheney’s crouched order contact with her.6 Allen Smallwood, behind her car. She could man see the who standing over the attorney, woman with his arm ex- was Mrs. divorce testified tended parties agreed and heard him fire protective several more order. Teipel pause shots. stated there was a unlikely be- Smallwood stated it was that such- shots, remaining granted tween the first shot and the order would have been if pause and estimated the lasted two three had contested it because there was no direct 5. Vol. II empty Tr. at 441. broke. He threw an infant carrier and large laundry basket of clothes out the bed- order, protective 6. The which was admitted into room door. He me he could told not wait to evidence, stated: get application my an for life insurance on life p.m. Gariy up After 11:00 2-11-93 woke me going myself and he was to watch me kill via $15,- pressuring giving continue me into him taking myself. bragged care of He has my 000 from inheritance. I refused. He said people several that he has a loaded 22 rifle in torturing going I was him so he was to torture bipolar his trunk. He is and refuses treatment. sleep me. He did not allow me to until 5:00 currently phase goes He is in a manic During night a.m. he slammed the bed- rages. uncontrollable many room door so times the door frame be) This attitude sentenced to death. prior to the issu- should abuse of violent given the horror is understandable order.

ance of the increasing public and the fear of sense- crime Cheney went also evidence that There was However, less, tragic criminal acts. month wife’s house on March 31—one to his interpret- Supreme Court has United States time, Cheney At her death. before Eighth Amendment to the United ed the During the sentenc- struggled with his wife. the death Constitution to mean that States trial, Cheney admitted he had a ing phase of may only imposed upon those few penalty be gun during the March 31 incident. who are deemed the worst of the murderers 1, Cheney April checked into Brookha- On Oklahoma, states, all murderers.7 like worst for manic- Hospital he was treated ven where Supreme interpreta- by the Court’s is bound Cheney on depression. Brookhaven released Eighth tion of the Amendment. Cheney had no contact with his April 16. interpretation with its accordance April 31 until when he wife from March Amendment, Eighth Supreme Court re- Oxy parking in the confronted and killed her rational, quires employ principled, states garage. non-arbitrary systems discerning those murderers who should be sentenced to few BE THE DEATH PENALTY CAN many pun- murderers who are die from IN THIS CASE? IMPOSED To by imprisonment. a term of life ished comply requirement, this constitutional key question in this case is whether with The states, Oklahoma, many other uses a to death for the like can be sentenced First, capital sentencing process. general perception two-step of his wife. The murder jury murder or provides the death the determines whether the is that since our state law murder, anyone falls under one of the State’s statu- penalty degree for con- murderer first (and many tory aggravating Aggrava- can believe circumstances.8 victed of that crime be (the being developed aggravating Any killing a list of cir- of one human 8. Oklahoma homicide another) tragic. Any degree range persons by to narrow the of who is first murder is cumstances horrible, only tragic, morally reprehensi- might it is be sentenced to death from all those who not degree only and demands retribution. But not all first of first murder to those ble are convicted degree eight statutory aggra- can be sentenced to death. In murderers or more of the where one 1972, Supreme vating the Court outlawed the then- circumstances exist. Oklahoma allows existing penalty jury penally only death statutes. Furman v. Geor- the death under the to consider 238, 2726, gia, S.Ct. 33 L.Ed.2d 346 following aggravating 408 U.S. the circumstances: (1972). Court found these statutes allowed The previously defendant convicted of 1. The jury imposing the unbridled discretion in the felony involving a the use or threat of violence Eighth penalty in violation of the Amend- death person; penalty statutes around the coun- ment. Death knowingly great a 2. The defendant created Oldahoma, including try, were struck down. person; risk of death to more than one response, revamped penalty states their death person committed the murder for re- The 1976, Court, cases, in a of statutes. the series promise muneration or the of remuneration or newly-enacted penalty reviewed the death stat- employed another to commit the murder for 153, Gregg Georgia, utes. 428 U.S. 96 S.Ct. remuneration; promise remuneration or the of Florida, 2909, (1976); 49 L.Ed.2d 859 Proffitt heinous, especially 4. The murder was cious, atro- 2960, 428 U.S. 96 S.Ct. cruel; or Texas, (1976); 96 S.Ct. Jurek v. pur- 5. The murder was committed for the (1976); Woodson v. North avoiding preventing pose of or a lawful arrest Carolina, 428 U.S. prosecution; or Louisiana, (1976); Roberts v. L.Ed.2d 944 by person 6. The murder was committed a (1976). 49 L.Ed.2d U.S. serving imprisonment a while sentence of upheld penalty death statutes The Court those felony; conviction of a jury's channeling the discretion to determine probability 7. The existence of a that the de- eligible were for the death which defendants and, fendant would commit criminal acts of vio- allowing jury penalty yet, the the freedom to continuing threat lence that would constitute a unique consideration the characteristics take into society; Gregg, supra; or and crime. of each defendant Jurek, peace 8. The victim of the murder was a Proffitt, supra; supra. The Court struck imposing mandatory officer as defined Section of Title 21 of statutes death down those Statutes, guard every person de- the Oklahoma or of an institu- sentence for convicted of first Woodson, Roberts, Department gree supra; supra. murder. tion under the control the case, separate penalty applied given should not ting circumstances are used be remedy cases in which the defen- this Court must that error. those few murder penalty eligible is for the death from the dant case, In this there is no doubt is many penalty is eases which the death guilty Degree of First Murder. The evi- inappropriate.9 jury determines Once dence, above, clearly as we have set forth aggravating that one or more circumstances proved Cheney killed his wife with malice case, applicable particular are to a the defen- Nonetheless, aforethought. Cheney’s mur- eligible penalty. for dant is deemed the death tragic— der of his wife—while horrible and However, point penal- at this even death qualify penalty does not for the death under ty automatically applied. jury is The aggravating Oklahoma’s circumstances. mitigating factors sur- must balance been, Rather should have and now rounding the murder and the defendant be, prison must sentenced to life in without against aggravating circumstances of the possibility parole. An examination of crime decide whether or not the death why law facts this case make clear penalty truly appropriate in an is individual ruling necessary is and inevitable. case.10 system determining This who should imposed be in this case punished by confusing is penalty solely death and difficult death especially based on the apply,11 heinous, and it has been the source of aggravating atrocious or cruel cir litigation.12 much This Court is often faced cumstance. In the fourteenth brief,13 parsing through appellate with the arduous task of alleges the evi horrible, tragic facts of some crime to deter- dence was insufficient show that eligi- heinous, mine whether defendant especially should be of his murder wife was penalty ultimately ble for the death se- aggravating atrocious cruel as that cir lected to die. it is that interpreted by When clear the death cumstance has been this Corrections, 1976, person litigation and such was killed while 12. Since much in this area performance duty. in of official has centered on the semantics of several of the O.S.1991, aggravating ag- § 21 701.12. circumstances and whether these gravating circumstances result in “rational and non-arbitraiy” applications penalty. of the death Supreme aggrava 9. The Court has stated that an system many problems To state that this has is to ting requirements. circumstance “must meet two Supreme state the obvious. One Justice of the First, may apply every the circumstance not Court, Blackmun, Harry Justice who had for murder; apply defendant convicted of a it must years twenty supported upholding more than the only to a of subclass defendants convicted of penally, finally death in concluded the Second, aggravating murder. the circumstance system simply was unworkable and stated he may unconstitutionally vague.” Tuilaepa not be against upholding would thereafter vote death — U.S.-,-, California, v. S.Ct. 114 Collins, -U.S.-, penalties. Callins 114 2630, 2634-35, (1994) (citations (1994) (Blackmun, S.Ct. L.Ed.2d omitted). J., certiorari). dissenting denial Justice approach tempting, Blackmun's is but in the 10. 114 S.Ct. at 2635. analysis easy way final penalty it is too out. Death among issues are the most difficult issues Many people are unaware of the difficulties by society. upheld faced our But this Court has surrounding very and subtleties this emotional system try Oklahoma's and we are committed to Indeed, and volatile area of law. while system much irrespective the to make work of its inher- complexity problems. doing, has been said about the of the Inter- imperative ent In so it is that Code, penalty apply Supreme nal Revenue our death law is we the law of the Court and our equally complex, prior fairly consistently every “loopholes” tedious case law and and full of in may case. we “technicalities". While all lament complexities penalty jurisprudence, the of death keep brief, we must in mind that this area of the law is twenty-two propo- 13. In his raises by driven the decisions of the United States Su- lengthy sitions of error. Such dard, are briefs stan- preme expect judg- Court. If we our State court necessary, capital and often in cases. upheld, ments and sentences of death to be we Many propositions of these address issues con- strictly cerning must insist that guilt-or-innocence stage those decisions be com- of trial. plied applied fairly with and that the law opin- be These issues will be addressed later in this consistently every in case. ion. See 83-91. infra death, by Supreme prior required of the victim

Court and the United States physical He is correct. torture or serious abuse standard is Court. cruel- not met.”17 As to the extreme mental heinous, especially atrocious or cruel circumstance, ty prong aggravating of this aggravating has come circumstance under creating “torture extreme mental distress scrutiny by Supreme Court. close by must be the result of intentional acts Cartwright,14 Supreme Maynard produce defendant. The torture must men- aggravating this Court found circumstance anguish in to that tal addition which neces- unconstitutionally vague under sity accompanies underlying killing. Eighth Amendment of the federal constitu- Analysis on the must focus acts the defen- every tion. The Court made clear that not dant toward the victim and the of ten- level especially murder could fall under the hei- created.”18 sion nous, aggravating atrocious or cruel circum- reviewing stance and that Oklahoma must construe this The standard for whether the aggravating proving has circumstance so there State met its burden of principled way distinguish aggravating would be some circumstance is “whether there any aggravating competent support the few cases in which this cir- was evidence to many applies charge aggravating cumstance from the circum- eases State’s which it does not.15 stance existed.”19 While against Cheney shows the murder his wife In accordance with the concerns raised tragic, senseless the evidence does Maynard, aggra- this Court has limited this the conclusion that it was com- vating circumstance to cases which the heinous, especially mitted in an atrocious or proves beyond State a reasonable doubt that cruel manner. preceded by the murder of the victim was abuse, law, physical may or serious torture which Under our case serious abuse great physical requires simply showing include the infliction of either more than that the anguish cruelty.16 victim, or extreme mental “Ab- defendant shot and killed the an act physical suffering very sent evidence of conscious which its nature is violent.20 Brown (Okl.Cr.1994), Bryson 14. 486 U.S. 100 L.Ed.2d (1988). denied,-U.S.-, rt. ce (1995); Romano, see at 387. 15. Id. 486 U.S. at S.Ct. at State, 521, (Okl.Cr. Perry v. 893 P.2d 533-34 State, 1018, (Okl.Cr. 20. Davis v. 888 P.2d 1020 State, 1995); (Okl.Cr. Medtock v. 889 P.2d 344 1995) (heinous, aggravating atrocious or cruel 1995); State, (Okl.Cr.1994), Mitchell v. 884 P.2d 1186 circumstance not found where one victim re - -, S.Ct. 95, rt. denied U.S. 116 gunshot ce ceived to head and back and wound (1995); State, 133 L.Ed.2d 50 1273, Hooks v. 862 P.2d gunshot other victim received two wounds to - denied, (Okl.Cr.1993), 1282-1283 rt. head); State, 980, (OM. Marquez ce v. 890 P.2d 987 , 1870, U.S. 114 S.Ct. 128 L.Ed.2d 490 Cr.1995) (heinous, -— aggravating or atrocious cruel (1994); State, 368, v. 847 P.2d Romano 379 victim, circumstance not found where who was - (Okl.Cr.1993), -, 'd, U.S. 114 S.Ct. times); State, aff sleeping, was shot three Booker v. 2004, State, (1994); Hayes 129 L.Ed.2d 1 v. 845 (Okl.Cr.1993) (finding 851 P.2d 544 evidence did 890, (Okl.Cr.1992); Berget State, P.2d 892 824 heinous, support aggrava atrocious or cruel 364, (Okl.Cr.1991), denied, P.2d 373 cert. 506 ting circumstance where victim was shot once in 841, 124, (1992); U.S. 113 S.Ct. 121 L.Ed.2d 79 instantaneous); chest and death was Sellers v. State, 555, (Okl.Cr. 816 P.2d 565 (Okl.Cr.), denied, Battenfield cert. 502 denied, 943, 1991), 1491, cert. 503 U.S. S.Ct. 912, 310, (1991); U.S. 112 S.Ct. 116 L.Ed.2d 252 (1992); 117 L.Ed.2d 632 Foster v. (when Stouffer, 742 P.2d at 563-64 no evidence (Okl.Cr.1989), denied, rt. ce gunshot, victim was still conscious after first (1990); heinous, support Stouffer evidence did not atrocious or denied, (Okl.Cr.1987), P.2d 562 rt. circumstance); ce aggravating cruel Odum v. 484 U.S. (1988). (evidence (Okl.Cr.1982) P.2d insuf heinous, support ficient to atrocious or cruel aggravating circumstance where victim rendered Battenfield, 816 P.2d at 565. immediately single gunshot from unconscious wound to neck and died within minutes due to Berget, asphyxiation). 824 P.2d at 373. Brown, Cheney de- v. State21 is illustrative. that Mrs. was not killed or rendered history long by only his wife had a of unconscious fendant and first shot. However September elapsed domestic violence. two seconds before she was shot police again. defendant went to the station and con- The medical examiner could not de- shooting remaining fessed to his wife. The defendant’s termine the order of the shots. most, Cheney in wife was found dead her car on the side of At Mrs. would have been con- facts, couple the road. She had been shot seven times. A scious for a of seconds. These manifestly horrible, tragic he while police officer testified believed the defen- do not support finding physical of serious dant fired several shots at the victim’s car abuse under the case law.22 causing the victim to run off the road. Some gunshots hit the of these victim. The officer argues The State Mrs. suffered he stated believed defendant then stuck cruelty extreme mental before her death be- in

his arm the window and shot the victim cause of the fear she must have felt when her four more times. The medical examiner husband in parking ga- confronted her found that the victim was shot seven times However, rage. Mrs. fear was no two of the wounds were fatal. The by different than the fear suffered the victim medical examiner stated the victim would by any or Brown other victim who is receiving have died within minutes of facing prospect of death. The mental wounds, fatal but he could not tell in what torture element is confined to eases which order the wounds were inflicted. This Court significant the victim is terrorized peri- concluded that on based these facts this mur- example, od of time before death.23 For preceded by physical der was not serious State,24, Hawkins v. the defendant drowned abuse. the victim. The Court concluded the evi- case, physical dence did not serious abuse

Like the Brown Mrs. preceding or torture death. The did Court shot and killed her husband. no There is find, however, that the defendant inflicted physically threatened great cruelty prior mental victim during harmed his wife initial confronta- kidnapped death. Hawkins the victim and garage. precise- tion in the doWe not know lasted, her children from a mall. As the ly long Court how this initial confrontation noted: appears only but it it lasted a few seconds Cheney sprayed possible

before Mrs. her husband in At the first instant Hawkins took helpless away the face with mace and ran from him. Che- mother’s children ney then ran upstairs after his wife and shot her. her. him While she was with she Five of the shots were fatal and if they two of these could not know were safe. All that night shots would have rendered Mrs. in- while she was chained in the barn stantly possibility only imagine might hap- unconscious. There is a could she what be (Okl.Cr.1988). 21. 753 P.2d 908 where stance instantaneous, Booker, there evidence that death was at or where readily supported the evidence the conclusion 22. Prosecutors have satisfied the serious prior that the victim was rendered unconscious requirement by showing abuse that the victim physical injury to the infliction of serious or indicating suffered numerous defensive wounds 533-34; Perry, mental torture. 893 P.2d at attempted that the victim was conscious and to 892; Hayes, Battenfield, 845 at P.2d 816 P.2d at attacker, fight off her Walker v. 565. (Okl.Cr.1986), denied, cert. 479 U.S. (1986); Ro (Okl.Cr.1994) 23. See Neill v. 896 P.2d 537 mano, 379; 847 P.2d at Woodruff (extreme cruelty shown where mental watch, victims —— (Okl.Cr.), denied, P.2d cert. U.S. plead forced to wait and with defendant -, (1993); them); prior killing Berget, to him 824 P.2d at testimony witness that victim was alive and con (defendant gun- forced victim into car at physical scious at the time the abuse was inflict time, point, period drove around for a then ed, (Okl.Cr. McCracken v. put victim in trunk of car and continued to drive 1994); or medical evidence that the was victim they until reached a deserted area where defen- during physi conscious the infliction of serious dant forced victim to his stand with back injury. Bryson, cal 876 P.2d at 260. back). defendant and then shot victim in the contrast, In this Court has found the evidence (Okl.Cr.1994). support aggravating insufficient to this circum- P.2d 586 apply that night Georgia Supreme failed to In the middle of the Court pening to them. consistent, them, in rational away aggravating factor a only to take her he let her see readily manner.29 morning dragged her and discernable again. The next he cried, away “goodbye”, to her ba- as she remarkably Godfrey facts in are simi- The subjected mother to a bies. Hawkins Godfrey in case. lar to the facts cruelty. most form of mental The extreme shot and killed his wife and mother-in-law. satisfy limiting facts of this case both the Godfrey experiencing mari- and his wife were preceded that murder was instruction Shortly shooting, tal difficulties. before the torture, by jury’s finding that the and the Godfrey argument a and his wife had heated heinous, or murder was in fact atrocious Godfrey a in threatened his wife with which cruel.25 damaged clothing. knife and some of her Hawkins, during In the mental torture him, incident, Godfrey’s wife left After this kidnapping leading course of the to the vic- in with her mother and filed for di- moved tim’s murder constituted extreme mental Godfrey attempted to reconcile with vorce. Here, cruelty. there is no such evidence of evening, him. his wife but she rebuffed One during mental torture the brief encounter Godfrey argued and his over the tele- wife April and his wife on between Godfrey’s phone. During argument, wife State,26 argue The cites Mann v. State Godfrey got hung up point, on him. At that might sup- fright that alone be sufficient to shotgun his mother-in-law’s his and went to However, cruelty. port finding a of mental Godfrey peered through the trailer home. Mann, beaten, locked in a the victim wife, moth- window of the trailer and saw his trunk and told she would be killed. This daughter. er-in-law and He fired one shot type of extended mental abuse before death striking lolling into the trailer his wife. fright anyone trailer, is different from the basic daugh- his hit He then burst into experience immediately prior to must death. shotgun ter with the butt of his and shot and proposition that Godfrey Mann does not stand for the killed his mother-in-law. called the Later, fright finding police killings. alone is sufficient confessed “ cruelty. Godfrey police, of mental told the ‘I’ve done a hideous crime, thinking ... but I have been about it apply It is critical that this Court ”30 eight years again.’ ... I’d do it statutory aggravating circumstances consis- tently. aggravating If extend circum- we Godfrey’s and trial court case murder, stances to meet the facts of each Godfrey’s found the murder of wife and very prospect then we face the real “outrageously wantonly mother-in-law was or vile, federal court will overturn our decision or horrible or inhuman that it involved Supreme torture, mind, that the Court will sustain a consti- depravity aggravated or an challenge aggravating to this circum- battery tutional Georgia to the victim.” The Su- again.27 Godfrey stance once The case of v. preme Court affirmed. The United States Georgia28 particularly Supreme reversing is instructive on this Court reversed. court, point. Godfrey, Supreme Supreme Court found state noted that Court vile, Georgia’s outrageously wantonly opinions hor- earlier of the state court indicated aggravating rible or inhuman circumstance that evidence of torture or abuse— unconstitutionally vague than because the other the murder itself —must be shown Court, by Legislature prior rulings Id. at 597. of this Court. denied, (Old.Cr.), 26. 749 P.2d 1151 cert. 420, 1759, 28. 446 U.S. 100 S.Ct. 64 L.Ed.2d (1988). 398 109 S.Ct. (1980). Although many might put- 27. Oklahomans favor analysis Maynard Cartwright, supra, in its crime, not, Cheney ting to death for his courts do heavily relied the Court on its decision in God cannot, upon public and decide cases based 363-64, frey. Cartwright, 486 U.S. at 108 S.Ct. at opinion polls. only upon Courts cases not decide facts, upon and also the the evidence but law— sense,” law, not "common but the as established by rulings Supreme the of the United States 30. 446 U.S. at 100 S.Ct. at 1763.

83 contrary, Cheney aggravating spend circumstance. will the rest of his support to this high judge prison, hope being trial nor the state in Neither the life without the of ever Godfrey’s in found the murders case persons court from incarceration. released Most by preceded were torture or violence. The degree are of first who convicted murder that such broad Supreme Moreover, Court concluded penalty. it face this is incumbent aggravating circumstance application of the necessary on this Court to take this any the unable to find discernable left Court proper action. When this Court fails to rem- way distinguish to the defendant’s case in edy in penalty cases which the death has imposed penalty the death which imposed appeals drag improperly, been out many in it was not. the cases which years eventually until a federal court grants granted the relief we should have Likewise, Cheney’s in case there is no place.32 long delays in the first These result prior or evidence of mental torture unnecessary in financial burdens on the State death, heinous, especially to and the atro- impose tremendous emotional on all tolls aggravating cious or cruel circumstance parties to the case. must not We allow applied not have been in this ease. If should happen in the case. Cheney’s we were to allow death sentence to committing we would same con- stand be case, Under the facts of this we find the by stitutional error that was committed simply support jury’s does not Georgia Supreme Godfrey, Court and we finding that the murder Mrs. likely rebuffed a federal court would be heinous, especially committed in an atrocious just Supreme like the Court rebuffed the Accordingly, Cheney’s manner. cruel sen- Georgia Godfrey. sug- court The State im- tence of death must be modified to life gests Cheney’s attack on his wife prisonment possibility parole.33 without the give finding March 31 is sufficient to rise to a Although Cheney’s we have modified sen- However, Cheney of mental not torture. did death, Cheney tence of also in his raised form the kill until intent his wife regarding jury’s brief a number of issues April afternoon of 30. Events that occurred guilt. determination of Below we review one month before even formed the these issues conclude convic- enough support to kill intent are not tion should be affirmed. heinous, especially aggra- atrocious or cruel vating circumstance.31 VENUE

Although modify Cheney’s we must death sentence, eighth important it is to note that In his of error granting “relief’ we mean are does not Che- contends the trial court should have ney away granted change is allowed to walk from his crime his motion for a of venue. punishment. reviewing challenges or is absolved from To the The standard for Brown, 31.Similarly, supra, though there was evi- the evidence revealed that the store clerk physically murder, dence that the defendant was abusive prior feared Moore the Court did during towards his wife the course of the mar- support not find that fact sufficient to the hei death, riage. Five months before Mrs. Brown’s nous, aggravating atrocious or cruel circum punched giving the defendant his wife her a stance. death, eye. black One month before her punched defendant his wife in her mouth. recently happen 32. We have seen this in several Nonetheless, not this evidence was considered in Maynard Cartwright, cases. See 486 U.S. heinous, support aggra- atrocious or cruel (1988); Banks Brown, vating circumstance. P.2d at (10th Cir.1995); Reynolds, F.3d Wil (Okl.Cr.), In Moore v. cert. (E.D.Okla. F.Supp. liamson v. denied, 116 L.Ed.2d 1995). (1991), the Court found that the evidence did heinous, ag atrocious or cruel Cheney's 33. Because we have modified death gravating circumstance. Moore shot and killed a sentence, remaining we need not address the and, motel desk clerk clerk. Moore robbed the propositions concerning propriety of the im- floor, lay while the clerk on the he fired five position penally. propositions the death These shots into the victim's head. A month before the murder, 13, 15, 16, 17, 18, 19, 20, Propositions include 21, job the clerk had fired Moore from his motel, at the and the Al and 22. clerk feared Moore. 84 In JURY SELECTION set forth in Coates v. State.34

venue was Coates, two-prong a the Court established 9, Proposition Cheney argues In that a of a mo test to determine whether denial individual the trial court’s refusal to conduct in change a of venue was error. tion for prospective jurors deprived him voir dire of “First, may presumed where prejudice be jury. right impartial We of his to fair and that influence of the the facts reveal ‘the disagree. media, community large in the at news either itself, pro pervaded in courtroom the or the require This does not individu Court ”35 ceedings.’ give If facts do not rise to capital in The decision to al voir dire cases.38 presumption prejudice, the must Court in trial conduct individual voir dire rests circumstances sur Here, then review “the entire Cheney moved to court’s discretion. rounding appellant’s trial to determine jurors individually but the trial voir dire the a ‘fundamen whether the defendant received stating “nothing court overruled the motion tally fair’ trial.”36 presented that individual is to convince me necessary appropriate in this voir dire was case, pre-trial In there was news nothing There is in the record indi case.”39 coverage In of the murder of his wife. addi- cating the trial court abused its discretion. crime, detailing reports tion to the news fact, eighth trial counsel waived his focused on the issue of domestic violence challenges indicating peremptory ninth his problems Cheney marriage. Dur- jury. proposition This satisfaction with the dire, ing jurors voir were asked about is denied. knowledge their of the case. About half of jurors had heard of the case. Some of THE SUFFICIENCY OF EVIDENCE jurors really any- these did not remember FOR FIRST DEGREE case; ju- thing about facts of the other MURDER they any pre- rors stated that did not have they or that conceived notions about the case propositions In his first and second of er- opinions. Cheney could their used set aside ror, Cheney argues that the evidence was peremptory challenges to strike seven insufficient to sustain his conviction first jurors from the venire and then waived his degree Having carefully murder. reviewed challenges. eighth peremptory and ninth case, the record in we find jury’s finding is sufficient to sustain the pervade The media did not this trial.37 guilt. jurors Although of the had heard of the some case, jurors they put these affirmed could admits he killed his wife in the any preconceived pretrial Oxy parking garage. notions aside. The His defense at trial publicity give guilty by to a this ease does not rise he was not reason of or, presumption prejudice. Turning insanity, alternatively, only that he was test, conclude, prong guilty Manslaughter second of the we of the lesser Coates offense circumstances, totality Degree. based on the the First of these defenses, pretrial publicity deprive expert did not called two witnesses right testify of his fundamental to a fair about his condition at the mental trial. This should be denied. time of the crime. Dr. Dodson and Dr. (Okl.Cr.1989). Hawkins, Allen, 490; Walker, e.g. 34. 773 P.2d 1281 See 37. See at 723 862 P.2d 592; State, 487, P.2d at 278. 891 P.2d at Allen v. 862 P.2d (Okl.Cr.1993), denied,-U.S.-, 490 cert. 114 (Okl.Cr.), cert. Valdez (1994); S.Ct. L.Ed.2d 375 128 Walker — denied, (cid:127)-(cid:127), U.S. 133 L.Ed.2d State, 723 P.2d at 278. (1995); Lambert v. 888 P.2d (Okl.Cr.1995); Malone v. P.2d Coates, 1286, quoting, Murphy at (Okl.Cr.1994); Trice v. Florida, 794, 798-99, , — --, (Okl.Cr.), cert. U.S. denied 2035-36, (1975). (1993). S.Ct. Id. 39. Vol. I Tr. at 2. Cheney he would Reynolds testified suffered from bi- would “walk” because claim he was jailhouse polar manie-depression diagnosis and he had suffered insane. Perssons’ of Che- ney many years. Cheney manic-depressive doc- was that from this illness for Both was Cheney to with extreme narcissistic tors maintained that went tendencies. try garage to to reconcile with his wife and addition, lay the State called several

that, him, kill if she refused he intended to Among lay witnesses. witnesses was himself. The doctors asserted that when Pruitt, Cheney’s secretary Toni at his former Cheney sprayed something mace was with place employment. testified She about snapped Both and he killed his wife. doctors Cheney discussions she and had about his murder, testified that at the time counseling receiving divorce and the he was Cheney appreciate could not the nature and in connection with his divorce. Pruitt stated consequences of his acts and that he could Cheney that on two occasions said it was distinguish right wrong. from Dr. Dod- stupid Cheney crazy for Mrs. to claim he was opined Cheney also never son should get kill because he could her and off on an Hospi- from have been released Brookhaven insanity plea. These statements occurred a tal and that the lithium that Brookhaven few months before Mrs. death. Cheney prescribed for was too low to control Maxwell, Cheneys’ babysitter, Wanda Cheney manic-depression. his had voluntari- spoke also testified. stated she She with ly admitted himself for treatment in Brook- Cheney April just on hours before he Hospital April haven on 1st and was released Cheney killed his wife. Maxwell stated April 16th. Two weeks later he shot and sounded fine and he made sense when he his killed wife. to talked her. doctors, According to the defense after the error, In his first shooting, Cheney experienced psychogenic a Cheney claims the evidence was insufficient fugue normally in which he could act but jury’s finding that he was would have no idea or he recollection of what law, sane. Under OHahoma a defendant is doing. shooting, Cheney After presumed sane.40 The defendant bears the drove to Kansas. When he realized what raising burden of doubt about reasonable happened, had he to kill decided himself sanity.41 “If the defendant establishes a driving through Arkansas. As he was Mis- sanity, presump doubt of his reasonable Arkansas, way souri on his the Missouri sanity tion of vanishes and it is incumbent police apprehended him. upon prove beyond a reasonable State distinguish doubt that the defendant could rebuttal, Wakefield, the State called Dr. right wrong between at the time of the psychologist who treated at Brook- offense.”42 haven. Wakefield testified that on March shooting, Cheney a month before the knew Here, Cheney called two doctors who testi- doing

what he was he when confronted his inability fied about his mental illness and his wife and threatened her. consequences nature and of his know the right wrong acts or to at the time know The State also called Donald who Perssons evidence, of the crime. Based on this Che- occupied Cheney in the cell next to the coun- ney raised a reasonable about his sani- doubt ty jail. psychology Perssons had a Ph.D in ty disprov- and the State bore the burden of practiced psychologist and had as a for a ing insanity beyond a reasonable doubt. years. number of Perssons also had been molestation, convicted of child contends to dis- distribution the State failed beyond pornography possession prove insanity child of a fire- a reasonable doubt. ques- opined arm. Perssons “It is a well established rule that the quite rational and that told him he tion of whether the State has carried its (Okl.Cr. (Okl.Cr. 40. Ballou 41. Manous 745 P.2d (Okl.Cr. 1987); 1985); (Okl. Munn v. Smith v. 1983). Cr.1982).

42.Manous, 745 P.2d at 744. sanity aforethought. Cheney proving burden of the defendant’s at with malice contends question the time of the crime is a of fact for precluded him form- his mental illness jury determination of the and where the sole ing requisite degree the for first mur- intent any tending support there is evidence its showing der. While there was evidence province finding, appellate it is not the of the Cheney mentally ill at of the was the time weigh court to the same.”43 The can State crime, of there was commission the also evi- disprove insanity by lay testimony as well as showing Cheney possessed the delib- dence testimony, prov- expert and it is within the Margaret Cheney’s erate intent to take life.47 jury disregard of the ince the medical example, Cheney For indicated before the give greater weight lay evidence and insanity murder that he would use the de- testimony.44 fense; bought gun day he a on the of the lay expert testimony the Here State’s and murder; Cheney in he waited for Mrs. the jury’s finding Cheney supported the hours; Oxy garage parking for several he Cheney at the time of murder. sane the him; Cheney chased Mrs. when she ran from focuses on the fact that none of the State’s shot, firing and after the first he waited one expressed opinion witnesses an about Che- firing remaining to two seconds before ney’s sanity at the moment of the itself crime shots. anyone the State failed to have evaluate after the crime. These repeatedly “This Court has held that the Nothing in omissions are not determinative. judge weight is the exclusive of the of requires produce the case law the State to credibility the evidence and the of the wit- expert testimony.45 testimony The of the testimony.”48 “Although may nesses there rebuttal witnesses as well as the evi- State’s testimony, be conflict if there is com- presented dence in the State’s case-in-ehief petent support jury’s finding, evidence to supports jury’s sanity.46 determination of this Court will not the verdict on disturb Cheney’s proposition first of error is denied. appeal.”49 Although there was a conflict in testimony, competent there was evidence Relying regarding on evidence his jury’s illness, support finding regarding Che- Cheney argues in mental his second ney’s Proposition to kill of error that the evidence was intent his wife.50 finding insufficient to a that he acted is denied. Manous, 745; Smith, involving question insanity appli

43. 745 P.2d at 646 P.2d at and is not 1287. cable here. Ballou, (Okl.Cr. Huckaby 47. v. 44. 694 P.2d at 951. 1990) ("Malice is that deliberate intention unlaw fully away being, to take the life aof human Munn, 45. See 658 P.2d at 486. which is manifested external circumstances capable proof”). cases, 46. cites several non-Oklahoma but Love, persuasive. Stacy these cases are not In Woodruff, 846 P.2d at 1134. See Hallan (6th Cir.1982), 679 F.2d 1209 cert. denied 459 (Okl.Cr. 1984). (1982), U.S. presented the State no evidence to rebut the Woodruff, 846 P.2d at 1134. insanity. parte defendant’s evidence of In Ex Turner, (Ala.1984), 455 So.2d 910 evidence of Florida, insanity substantially undisputed by also cites Enmund v. Lee, (1982). People State. 29 A.D.2d (N.Y.App.1968), propriety N.Y.S.2d 607 the court found Enmund concerned the of the death hypothetical penalty one answer to one contra for a defendant who neither killed nor —which victims, testimony simply dicted the otherwise unrefuted three intended to kill the but aided and expert disprove robbery during witnesses—was insufficient to in abetted in a the course of which Here, sanity. lay Cheney’s the State offered several killed. victims were Because death vacated, expert disprove and other evidence witnesses sentence has been the concerns raised insanity. jury's longer the defense claim of verdict in over, are Enmund no at issue here. More- Finally, Cheney Cheney's distinguishable should not be disturbed. cites case is from En- Green, (Tenn.Crim.App. State v. 643 S.W.2d 902 mund because killed his wife and the 1982). supported finding Green concerned Tennessee’s standards evidence of malice afore- reviewing sufficiency thought. of evidence in cases (1) ISSUES mission EVIDENTIARY regarding protec- FIRST STAGE during pro- tive orders issued the divorce 6, Cheney contends his con- Proposition ceedings limiting ability to contact should be reversed because viction (2) wife; the confrontation between during other crimes evidence admission of Cheney and that occurred on March his wife stage types were two the first of trial. There 30-31. during crimes evidence elicited first of other (1) Cheney lied on the stage: evidence spouse one Where commits (“ATF”) Alcohol, and Firearms form Tobacco against spouse, crime the other evidence of weapon to purchase filled out to used he protective against orders issued the offend (2) wife; prior alter- kill his evidence ing spouse may to be admissible show mo Cheney cations between and his wife. tive, malice or intent where intent is an is not admissible as Other crimes evidence protective issue.52 Evidence of violations of “may ... proof of character but be admissi- prior orders53 and altercations between proof as of mo- purposes, ble for other such intent, hostility, spouses is relevant to show tive, intent, opportunity, preparation, plan, or malice.54 motive identity knowledge, or absence of mistake or Here, protective evidence of the order and in this ease accident.”51 The State contends the March 31st incident was admissible and that the other crimes evidence at issue was relevant to establish intent and motive. or motive. relevant to show intent addition, this evidence was relevant and ad- respect Cheney’s misrepre With Cheney the claim that missible rebut form, on the ATF the trial court sentations at the time of the commission of the insane allowed this evidence to be admitted to show Although protective crime. order day Cheney’s state of mind on the the March 31st incident involved conduct oc- murder. evidence was relevant to re Such curring preceding killing, months Cheney’s claim that he was insane at the but Cheney’s intent, knowledge, awareness and This time of the commission of the crime. understanding prior of his behavior on these evidence, purpose admitted for the of show provided occasions circumstantial evidence ing Cheney’s state of mind and to rebut an questions sanity of intent and relevant defense, insanity proper. April 30.55 As this evidence was admissi- ble, prosecutor’s during complains about comments clos- also regarding prior ing argument regarding altercations with his wife. this evidence do not Specifically complains about the ad- constitute error. State, O.S.1991, 2404(B). (Okl.Cr. 1988) (prior § See v. incidents where husband at 51. 12 Coates (Okl.Cr. 1989). properly tacked wife was admitted in marital 773 P.2d 1281 State, case); 753 P.2d at 911 homicide Brown v. (testimony by two children con wife/decedent’s State, 263, (Okl.Cr.

52. Rowland v. 817 P.2d 267 cerning husband/appellant’s pointing gun at wife 1991) (evidence protective of victim’s orders was probative appellant’s in was tent); motive and/or intent). relevant to show State, (Okl.Cr.), Villanueva v. 226, denied, 901, 88 cert. Id.; State, 476, (Okl.Cr. Holt 774 478 v. P.2d (1985) (prior L.Ed.2d 226 altercation between 1989) (violation protective admis- of victim order malice); husband and wife was relevant to show motive). sible to show State, 327, (Okl.Cr. Manning 330 630 P.2d cases, 1981) (”[i]n marital homicide a statement State, 54. See Hooker v. 887 P.2d 1359-60 showing ill-feelings, by conduct threats or similar - denied, -, (Okl.Cr.1994), rt. U.S. 116 spouse one towards the other is relevant to show ce 164, -L.Ed.2d-(1995) (defendant's State, malice”); S.Ct. Wadley v. 553 P.2d motive or admissible); prior estranged (Okl.Cr.1976) (in attack on wife was 523 marital homicide (Okl.Cr.1991), relating “ill-feeling, 825 P.2d Duvall cases evidence ment, ill-treat - violence, denied, -, assaults, personal jealousy, prior cert. U.S. threats, threats, (1992) (ill by feeling, any similar conduct or attitude L.Ed.2d 161 or similar admissible to show spouse husband toward the wife” is conduct one toward another in a mari malice). relevant); motive and tal homicide case is admissible and (Okl.Cr.1989) Holt v. 774 P.2d (violation protective generally order admissible to of victim 55. See Kiser motive); (Okl.Cr.1989). show Lamb v. (5) error, examination, during In his seventh tion. Later direct prosecutor again contends the trial court erred in asked if he Perssons permitting give improp Cheney’s per- Donald Perssons made a determination about er, irrelevant, opinion sonality prejudicial type. “diagnosed evi Perssons said he below, depressive For the reasons stated him dence. we as manic with extreme narcis- object find that the trial court did not commit re sistic tendencies.”56 did not (6) rulings testimony. prosecutor versible error its on Perssons’ to this asked testimony. if narcissistic tendencies could be treated Cheney objected with medication. that Pers- The State called Donald Perssons to rebut qualified question sons was not to answer the Cheney’s evidence that he was insane at the objection. and the trial court sustained the time of the crime. Perssons had a Ph.D. in (7) foundation, prosecutor After the laid a psychology practiced psychology and had Perssons testified narcissistic tendencies twenty years. approximately Perssons also through psychotherapy, par- can be treated (1) had been convicted in Utah for sexual ticularly group therapy. There was no ob- (2) child, exploitation abuse of a sexual of a (8) jection testimony. to this At the end of (3) minor, providing and harmful materials to examination, prosecutor the direct asked a minor. He was convicted federal court any if Perssons he had indication whether transportation pornog- interstate of child Cheney right wrong. Cheney knew from raphy and was convicted in federal court in objected and the trial court sustained the possession by fugitive. Tulsa of of a firearm a objection. Cheney was While incarcerated Tulsa County jail, occupied only Perssons appeal, testimony cell next On to which to him. Cheney objects testimony is Perssons’ that diagnosed Cheney depressive he manic “as Perssons testified about his observations with extreme narcissistic tendencies.” Since opinions concerning Cheney’s and mental Cheney object question did not to this at (or prosecutor condition. The elicited at trial, plain review is limited to error. elicit) attempted following least to (1) prosecutor Perssons: The sanity asked Perssons In cases in which the defendant’s is Cheney if witnesses, indicated was lay testifying he suicidal. Pers- at issue “after act, Cheney sons testified he did not think appearance was conduct and of the defen- Cheney objected dant, acts, may suicidal. to this comment state whether such conduct non-responsive, as judge appearance and the impressed being sustained and him as ra- (2) objection. prosecutor “However, The if asked tional or lay irrational.”57 wit- Perssons made a determination permitted give whether ness is not opinion to an suicidal, Cheney Cheney objected calling was that diagnosis.”58 for a medical Before a question beyond called for a conclusion testify expert, witness can as an he must be expertise, his qualified Here, and the trial court expert.59 sustained as an the State did (3) objection. prosecutor asked if expert not offer Perssons as an in the field of Perssons made a psychology determination about Che- and the trial court never ruled on ney’s objected, personality, Cheney qualifications expert. and the appears, as an It (4) objection. therefore, trial court sustained the Pers- that testifying Perssons was as a lay sons testified about his conversations with witness and it was error for Perssons to Cheney Cheney’s testify comment that he was diagnosis Cheney, about his medical going plead insanity i.e. thought to and that he Cheney manic-depressive was with opined However, he could do it. When Perssons narcissistic tendencies. rational,” “quite object- object was testimony did not to this and similar ed, objec- and the trial testimony court sustained the expert was elicited from other wit- Doyle, 56. Vol. IV Tr. 951. 785 P.2d at 322. (Okl.Cr. Doyle 785 P.2d (Okl.Cr. 59. Marr v. 741 P.2d 1989). See Lac Coarce v. 1987). (Okl.Cr.1957); Rice v. 80 Okl.Cr. (1945). most, during number of incidents of testifying as trial. At this evi- misconduct

nesses merely does not stages only cumulative and dence both of trial. We will consider Accordingly, plain error. rise to the level of occurring during those incidents the first prop- grant to relief based on this we decline trial, stage already granted as we have osition of error. sentencing Cheney. relief 10, Cheney argues Proposition Cheney’s allega- We have reviewed all of in admit the trial court abused its discretion prosecutorial tions of misconduct and found ting photograph was a Exhibit which However, many of them to be without merit. Cheney lying garage Mrs. on the floor short prosecutor on several occasions the did over- ly after she had been shot. contends step proper argument the bounds of unnecessary photograph that the as he prosecutor’s examination of witnesses. The shooting had admitted his wife.60 improper conduct was and raises serious con- parties only A for all trial court’s decision admit cerns the ease. Not is photographs of will be disturbing prosecutor the murder victim it to see a flout the law upheld unless its decision constitutes an ignore explicit rulings the direct and accurately abuse of discretion.61 Exhibit 3 court, the district but it also is reckless for depicted body dead at the Mrs. inject prosecutor potentially reversible er- murder scene and corroborated the testi by committing ror into a trial acts of miscon- mony eye of the medical examiner and case, although duct. In this some of the probative pho witnesses. The value of the prosecutor’s troubling, statements are we tograph outweighed prejudicial its effect find, consistent with other decisions of this admitting and the trial court did not err in overwhelming in Court66 and the Cheney’s distinguishable it. case is from case, that such errors are not suffi- State,62 Sattayarak v. v. Oxendine Accordingly, cient to warrant relief. post-autopsy photo Both State.63 involved proposition of error is denied. graphs of the victim. Exhibit 3 was not a post-autopsy photograph. Similarly, Che FIRST STAGE JURY INSTRUCTIONS ney’s distinguishable case is from Jones v.

State,64 State,65 and Tobler v. which con 3, 5, propositions Cheney objects In 4 and photographs decomposed body. of a cerned stage jury to certain first instructions. We Cheney’s body Mrs. was not in a state of jury proper find these instructions were rather, decomposition; photograph ac relief is not warranted. curately depicted Cheney’s handiwork and properly 3, admitted into evidence. We In Proposition relies on Johnson grant propo decline to relief based on this State,67 argue Jury 22 that Instruction sition of error. 22 was defective. Instruction mirrored the defining standard OUJI-CR instruction in

PROSECUTORIAL MISCONDUCT law, sanity under Oklahoma and we find the error, jury proposition given In instruction in this case to be his eleventh of Cheney alleges prosecutor engaged proper. 350, (Okl.Cr. 1984). complains also about the introduction 65. 688 P.2d 355-56 during stage Exhibit 53 the second of of trial. However, because we have found that we must (Okl. Cunningham 748 P.2d 522 modify Cheney’s death we need sentence not Cr.1987) (“When upon comments are based facts pertaining address other issues to the second evidence, or, here, introduced into as are stage of trial. minor misstatements of facts entered into evi dence, totality we review the of the evidence to (Okl. 61. McCormick v. 845 P.2d 898 determine whether the remark could have affect Cr.1993). trial”); ed the outcome of the see also Moore v. (Okl.Cr. 1994). (Okl.Cr.1986); 62. 887 P.2d 1330 Pannell (Okl.Cr.1982). (Okl.Cr.1958). 63. 335 P.2d (Okl.Cr .1992). 67. 841 P.2d 595 (Okl.Cr.1987).

64. 738 P.2d trial, M’Naghten plain Oklahoma uses the test struction at thus we review for sanity of at the time only. determine issue error of the crime. This Court has held that the degree suggested Second murder was not test, M’Naghten insanity applied in as Okla degree the facts of this case. Second homa, prongs.68 has two Under the first murder is from conduct murder results prong, if the defendant is considered insane imminently dangerous that is to another but suffering disability he is from a mental such which “is not done with the intention of wrong that he does not know his acts are taking harming any particular the life of or distinguish right wrong he is unable Here, Cheney’s individual.”72 conduct was respect with to his acts.69 Under second specifically directed at his wife. The trial prong, if the defendant is considered insane giving court did not err in not the second disability suffering from a reason dis degree sponte.73 murder instructions sua ease of the mind such that he does not consequences understand the nature or of his error, fifth acts or omissions.70 The defendant need Cheney degree contends the first heat of only satisfy prongs one of these order to passion manslaughter given in instructions guilty by insanity. be found not reason jury this case should have instructed the adequate provocation was to be viewed Johnson,71 the Court reversed the de- subjectively from the circumstances of the jury fendant’s conviction a defective because defendant rather than from the view of a required satisfy instruction the defendant to hypothetical Essentially, reasonable man. prongs M’Naghten both test order Cheney urges adopt this Court to the Model guilty by insanity. to be found not reason of determining Penal Code standard for wheth Johnson, Unlike the defective instruction in adequate provocation er exists to warrant a require Instruction 22 did not to find finding Degree Manslaughter. of First We prongs M’Naghten both in order to find adopt decline to this standard and find that insanity. contrary, To the Instruction person the reasonable standard does not vio accurately reflected Oklahoma law and the Cheney’s right process. late to due jury properly instructed on this issue. proposition This is denied. INEFFECTIVE ASSISTANCE In Proposition Cheney complains OF COUNSEL by failing

the trial court erred to instruct the jury degree error, on the proposition lesser offense of second In his twelfth of request murder. did not in- this contends he was denied effective assistance (Okl.Cr. Pugh 68. though included offense instruction even the evi- 1989). Further, dence warranted the instruction. the penalty required jury Alabama death statute the upon Id. at finding 843-44. to sentence the defendant to death guilty capital the defendant of the offense. If the jury found that the defendant 70. Id. at committed a vio- impose lent crime but did not want to the death only option sentence the was to release the de- 71. 841 P.2d at 596. However, fendant. as the Court made clear in Arizona, compel Schad v. Beck does not the trial (Okl.Cr. 72. Palmer v. provide court to lesser-included offense instruc- 1994). supported tions where such instructions are not Schad, by the evidence. In the Court stated its Alabama, also relies on Beck v. primary all-or-nothing concern in Beck was the (1980), U.S. jury only effect of the state rule that the could Arizona, and Schad v. guilty capital find the defendant of murder and (1991), argue to that impose penalty jury the death or the had to find provide deprived failure to these instructions the case, Cheney's the defendant innocent. In how- jury ability impose non-capital of the to third ever, life, jury option imposing the had option supported by fife the law and evidence. Che- Beck, parole jury ney's argument persuasive. without or death. The also had the is not option Court of the lesser included reversed the defendant’s conviction and offense of first de- gree manslaughter. prohibited all-or-nothing death sentence because Alabama law concerns giving jury the trial court from a lesser- raised in Beck are not at issue here. (1) requested trial failed counsel to such an because Ms counsel have instruc- counsel challenges However, peremptory all and failed to ap- to use tion. tMs omission does not (2) cause; jurors for failed to excuse certain pear prejudiced Cheney to have and is not request degree murder instructions second sufficient to warrant relief. limiting instruction on other crimes (3) evidence; object failed to to the rebuttal Further, counsel was not ineffec Wakefield; of Toni Pruitt and Dr. failing object for tive to to rebuttal witnesses (4) object failed to to certain instances of properly by as those witnesses were called

prosecutorial disagree. misconduct. We the State. Since Pruitt was a rebuttal wit Washington,74 ness, prosecutor the Su- required Strickland was not preme laid out the well-known test for Court her ap endorse on the Information.76 On ineffective assistance of counsel claims: peal, contends trial counsel should

First, requested must show that coun- defendant have a continuance because he was performance was deficient. TMs re- However, sel’s surprised Pruitt.77 whether or quires showing that counsel made errors request point not to a continuance at that functiomng so serious that counsel was not appears strategy to be a reasonable trial guaranteed as the “counsel” the defendant prejudice Cheney. Additionally, did not it Second, by the Sixth Amendment. appear does that counsel could have suc defendant must show that the deficient cessfully challenged Dr. Wakefield performance prejudiced the defense. TMs grounds privilege,78 and counsel did not requires showing that counsel’s errors failing object testimony. err in to his deprive so were serious as the defen- Finally, regard improper argu- with trial, of a fair a trial dant whose result is ment, prosecu- we concluded earlier that the reliable. Unless a defendant makes both showmgs, it cannot be said that the convic- tor’s comments were not sufficient to war- tion or death sentence resulted from a rant relief. Trial counsel was not ineffective adversary process breakdown failing object to these comments. Ac- renders the result unreliable.75 cordingly, is denied. Here, trial counsel was not inef Having found none of the issues raised

fective. Counsel’s selection decisions concerning guilt-and-innoeence stage appear strategy. to be reasonable trial None relief, Cheney’s trial warrant affirm we jurors jmy who served on Degree conviction for First Murder. unqualified appear appears to be and there prejudice to be no based on trial Moreover, jury strategy. counsel’s selection DECISION suggest in

the facts this case do not second judgment of district court is AF- The murder, degree and counsel did not err in FIRMED and the sentence of death is failing request such an instruction. Re LIFE MODIFIED TO IMPRISONMENT garding request limiting the failure to in evidence, THE PA- WITHOUT POSSIBILITY OF struction on the other crimes it prudent probably would have been for trial ROLE. 668, 687, 2052, 2064, (Okl Wooldridge

74. 466 U.S. 76. .Cr.1983). (1984). L.Ed.2d 674 (OH. Id. 75. See Wilhoit v. Cr.1991) (in maHng ineffective assistance of claim, counsel "must able to estab- O.S.1991, 2503(D)(3) defendant be § 78. 12 states: 1) lish that counsel's assistance was not reason- privilege is under this Code as to a [There no] effective, 2) ably perfor- that his deficient physical, communication relevant to the mental mance denied the defendant a fair trial and that patient any condition of the in or emotional performance, proceeding patient upon but for counsel’s deficient the re- relies in which possibly sult of the trial could ent”). have been differ- claim or defense condition as an element of his JOHNSON, Presiding in It Judge: concurs is not for the Court to substitute its Therefore, judgment jury. part/dissents part. in for that of the I jury proper would find that the made a ver- majority I concur with the herein as it judgment dict and would affirm both the as it finding guilt. I relates to the would also guilt jury relates to and the sentence of jury’s affirm the verdict as it relates to the death. modify death sentence. I would not the sen- imprisonment possi- tence life without the

bility parole. juror, might impose

If I I were give death sentence this case. You must deference to the and their verdict based upon prior our case law. Our Court has held Joseph ROMANO, Appellant, John sufficiency there is a when of the evi- question, dence the State is entitled to have light evidence reviewed most fa- Oklahoma, Appellee. STATE of Spuehler vorable to it. (Okl.Cr.1985). clearly That is the case here- No. F-93-75. adequate

in. There is evidence to find the Appeals Court of Criminal Oklahoma. aggravating factor. Dec. question presented is was there seri Rehearing Denied Jan. physical ous abuse I torture. believe and/or separated both are here. The deceased was husband, protective her had a victim’s

order and armed herself with mace. oth words, everything

er she had done she could protect yet herself and her life was taken. times, six or although She shot seven fire, rapid weapon. from a .45 caliber There question premedi is no as to the defendant’s jury’s tated crime. The evidence from the standpoint clearly could allow them to find back, that the victim was shot once fell back, looking up on her and was at emptied defendant when he came and gun clearly into her. This shows

abuse and torture. There was conscious physical suffering and our Court has never

put a time limit to this. Nuckols v. (Okl.Cr.1991).

Again, outlining without all of the eviden- tiary points, jury could have found tor-

ture herein. The deceased had obtained a VPO, it is clear that she was scared to death

and, fact, her death did occur. There was struggle car, at witnesses heard a fear, woman in sprayed estranged she her mace, husband’s past face with and there was history evidence of a abuse. The clearly could have found that the de- great safety. ceased was fear for her

Case Details

Case Name: Cheney v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Dec 8, 1995

Citation: 909 P.2d 74

Docket Number: F-94-220

Court Abbreviation: Okla. Crim. App.