*1 at common law. were non-recoverable wrongful death accrues DAVIS, Appellant,
right to recover for William Charles Where the statutory command. solely by v. recover dam- a method to provides statute Oklahoma, Appellee. The STATE which is ages person the death of another, the wrongful act of caused F-78-140, F-78-141. No. upon, the existence remedy predicated Appeals Oklahoma. of Criminal personal which was right of action right lived.8 The the decedent had he 9, 1983. May a cause of action under maintain is derivative and is wrongful death statute of the
dependent upon the continuance
right in the decedent at the time of decedent
death.9 Because claim which against appellees preclud-
might have had provided by the remedy
ed the exclusive Act, the wife’s Compensation
Workers’ is also
right of action for loss of consortium
barred.
B of action to recover dam- right
The wife’s of her husband has not
ages for the death Rather, it has been limit- abrogated.
been provision
ed. The benefit Act Compensation adopted
Workers’ of action remedy
a substituted for causes the death of workers covered
arising from the Act.10 The wife provisions statutorily prescribed com-
has received her
pensation benefits.
AFFIRMED. concur.
All the Justices Harris, Products, v. Graham, (Okl.1967). Inc. 10. Harter Concrete 35-38 v. 424 P.2d 8. Hill (Okl. 1979); Viersen & Cochran P.2d 1977); (Okl. Ford, Drilling Co. (Okl. Luethje, 503 P.2d 9. Haws (Okl. Merrill, P.2d Roberts v. 1972). 1963).
H87 *3 H89 *4 Ravitz, Defender, A. Robert Asst. Public City, Oklahoma Oklahoma for County, ap- pellant. Gen., Cartwright,
Jan Eric Atty. Susan Talbot, Gen., Asst. Atty. Gentry Tomilou Liddell, Intern, Legal City, Oklahoma appellee. survey, for a final and it apartment
OPINION point appellant this shot was at POWERS, Judge: Special them. convicted of Murder in appellant error, the proposition In his first Degree the First and sentenced death court maintains that the trial de County cases no. CRF-77-2905 Oklahoma present mitigation right nied him 2906. The sen- and assessed process deprived and him due his behalf (3) following after finding tence three of the laws when the equal protection case: aggravating circumstances each expert funds for provide court failed to heinous, especially murder was presentence in give or to him witnesses cruel; atrocious or the defendant was previ- vestigation. ously felony involving convicted of a right is no has held that there This Court person; use or threat of violence to the investigator funds to hire an to State great created a risk knowingly defendant factors mitigating psychiatrist present person. On March death more than one Eddings of a behalf defendant. M. im- the Honorable David Cook right sentences, judgments posed Constitution, guaranteed by counsel is by this stayed sentences of death were interpreted right but that has been 23, 1978, pend- of March Court its Order in the determina- expert include assistance this ar- ing appeal. the resolution of Oral punishment. Further- appropriate tion of August gument was heard *5 more, assertion the appellant’s the 31, 1981. requested the granted court should have morning early of an The two victims investigation report is without presentence 13, 1977, shooting August appel- at the presentence of the in- purpose merit. The were apartment City, lant’s in Oklahoma a vestigation is “... recommen- provide McLaughlin Wayne and Robert Dennis sentence, spe- and appropriate dation as to during not killed Jones. Wounded but against for or cifically a recommendation Rogers, Jones Kathy were same incident 1; 369, 1975, now Laws ch. probation.” § Davis, Hen- Kathy as Jones and also known spe- 982. That statute O.S.Supp.1980, 22 were (6) Jones. A of six bullets ry total the those cases in which cifically excludes .38 revolver. fired from the caliber this Court imposed. And penalty death motions pretrial has that the denial of held homicide, the prior Three to the days and investigation report a presentence for appel- met with the same four individuals a case in psychiatrist of a appointment lot Dumpty parking at a store Humpty lant sentenced to which a defendant has been apparently with reference Sapulpa, this statute. Ir- death was not error under and Kathy Rogers of separation the marital (Okl.Cr.1980), 588 vin v. 617 P.2d Henry appellant. the Jones and Robert reaffirming Bills Jones, brothers, Dennis Kathy’s and friend, Ka- McLaughlin, accompanied their meeting. thy Sapulpa the argu- alleges, in second ment, was selected in violation jury appel- at the group appeared then by the United mandated of the standards morn- apartment early Saturday lant’s were jurors Supreme Court. Certain States 13, Kathy’s August posses- remove ing, cause, objection of over the excluded for estranged her apartment sions from the counsel, of their beliefs result defense Kathy Henry Jones Rogers husband. and penalty. regarding the death stopped by first testified that four Illinois, Supreme pro- Witherspoon to obtain City Police station In Oklahoma of death sentence to the “... that a appellant’s in their visit Court held tection im- carried out if they were unsuccessful. cannot be apartment, but was chosen re- recommended posed all had been or Kathy’s property After simply cause be- excluding veniremen premises, the four returned moved from the general objections cause voiced to the you: THE I ask In a COURT: ease warrant, death law penalty expressed conscientious or where the evidence case, religious scruples against proper you, could without doing its infliction.” conscience, 510, 1770, your agree violence to a U.S. S.Ct. L.Ed.2d imposing Penalty? verdict the Death (1968), 521-522, at 391 at U.S. S.Ct. at 1776, 20 L.Ed.2d 784-85. a footnote to problems MS. METIVIER: I have with said, that opinion, the Court “The most that. can be demanded of venireman in this THE You COURT: what?
regard
willing
is that he be
all
consider
METIVIER:
I have problems
MS.
with
penalties provided by
law,
state
that.
committed,
that he not
irrevocably
be-
THE
You
problems
COURT:
have
with
fore the
begun,
against
trial has
to vote
I
Penalty?
the Death
And
ask
regardless
of the facts and
second question:
If
found beyond a
”
might
emerge....
circumstances
reasonable doubt that the Defendant was
Footnote
at 391 U.S.
88 S.Ct.
guilty
Degree,
of Murder
the First
Would refuse to You believe THE COURT: don’t Penalty? And she pose the Death said beyond a reasonable If found could? No. this case was that the Defendant in doubt Degree in the objection of Murder First guilty is overruled. THE COURT: evidence, and circum- if under facts “I have The Juror Metivier answered permit would of the case law stances problems with that” when asked if she death, are you to a. sentence consider case, could, imposing proper agree about the Death Penal- your reservations “Right” sentence. She answered *7 law, ty regardless such that if inflict when asked she would case, of the and the circumstances facts evidence, the spite of the penalty death Penalty? the Death you would not inflict law, and the When that circumstances. No. MS. MUSGRAVE: Court, she question repeated Ma’am? THE COURT: just in taking “I don’t believe answered I No. think I don’t life.” MS. MUSGRAVE: one’s would. gave an- Although conflicting the Juror You would not? THE COURT: by the questions swers to Coun- Huh-uh. MUSGRAVE: MS. sel, answers, in their en- her viewed when that a answer? positive Is clearly inability her to con- THE COURT: tirety, indicated any circum- Yes, sider the death sentence under sir. MS. MUSGRAVE: stances. not? THE COURT: Or Yes, sir. MUSGRAVE: MS. excusing
We now for examine objection, Your The same MR. majority Juror While the STUART: Dragus. cause of tentative, Honor. positive- she her answers were right. THE COURT: All objection consider it. The proper question is overruled. or not impos- whether could consider ing Penalty MR. I the Death in some case or a May STUART: be to ask allowed question? particular one this proper case. Not case. Yes, THE you may. objection COURT: THE COURT: The Defendant’s is overruled. The Juror will be MR. excused Musgrave, Miss I STUART: believe I for cause. you say heard question final Now, don’t think would. (The following were proceedings had in the that —Do I hear that to mean that hearing jury.) of the possibly impose could the Death Penalty you, THE COURT: Thank Mrs. Mus- particular some case? grave. You are excused for cause. right. MS. MUSGRAVE: Yes. That First, Musgrave Juror indicated that she Yes, MR. STUART: ma’am. That’s all I agree believed that she could to the death have. penalty doing her without violence to con- Well, THE I again. COURT: ask In this posi- science. The court demanded a more warrant, case if law and the evidence tive answer and she said that she didn’t case, proper ease, if proper this is a agree penalty believe she could to the death you, doing your could without violence to its an on her having effect con- conscience, agree imposing verdict science. her his Then court asked stan- Penalty? Death I accept any- cannot dard, your prevent you “Would reservations thing a positive response short of voting ques- from for the death penalty?” question, Musgrave. Miss Yes or no? said, “No,” tion. She I by, followed “No. say MS. MUSGRAVE: No. I would no. attorney don’t think I would.” The defense right. THE All Anything COURT: fur- possibly then asked if that meant she could ther? impose the in a penalty particular death Yes, May MR. I approach STUART: sir. case, said, “Yes. That right.” she the bench? standard, court asked her his Finally, the THE COURT: Yes. you agree imposing verdict “Could (The following proceedings were had out of doing death without its violence to hearing of jury.) your question, conscience?” and she answer- time, MR. At STUART: we move ed, “No”. mistrial, object we any would As was the voir the case in dire excusing Musgrave of Mrs. for cause as Metivier, Juror answers of the Juror said, question this second she think “I Musgrave conflicting were also and confus- I me could.” She told she in a could However, ing. when in their entire- viewed proper say didn’t she couldn’t in —She ty, clearly her answers also indicated her case, any and that is what Witherspoon is inability to consider death sentence un- at, strenuously directed and we object to der circumstances. excusing this Juror. MR. say ques- Supreme COATS: I would Court has held that a Counsel’s tions were so leading upheld po she would an- sentence of cannot if fairly swer it —She has jurors panel answered the are from tential excluded Judge’s questions out imposing punishment set the Court the basis of *8 which proper, and we move to have her penal personal their beliefs about the death excused. ty. supra. only legiti The Witherspoon, upon voir jury mate concern dire of the May MR. I the say STUART: further on panel will the im they that I is whether consider record think the Judge’s question sentence, regarding particular position of the death as one of the this case is not the law, proper question. A should proper provided case is to be alternatives state Jury. punish determined the the that appropriate This case is not case be for in point now. They properly can’t even ment.
1194 that actions were prove to jurors required of was voir dire examination the The passion upon of ade Metivier, out in the heat Musgrave, and as set executed Dragus in absence of herein, guidelines set forth in and the quate provocation followed the State, (Okl.Cr.1969) malice, effectively him to 456 549 forced Koonce v. P.2d which (Okl.Cr. manslaughter, and was Gibson v. the homicide prove that murder, 1972). citing voir degree When the dire examination Sandstrom not first 2450, 510, each and 61 entirety juror, Montana, in its as to viewed 442 99 S.Ct. v. U.S. Wilbur, in to the defend light Mullaney the most favorable v. (1979); and L.Ed.2d 39 ant, that trial conclude judge only 1881, the could 508 684, 95 44 L.Ed.2d 421 U.S. S.Ct. juror juror the of that mind each was said Patterson distinguishing (1975); and committed, before the trial irrevocably 197, 2319, was 53 York, 432 97 New U.S. S.Ct. began, of death against penalty to vote the (1977). 281 L.Ed.2d regardless of facts circumstances the and been instructions have The trial court’s the in the of might emerge that course 5, the court In Instruction No. examined. ambigu Their answers were proceedings. a rea- required proof beyond defined and ous, judge equivocal. hesitant and The trial all of the elements sonable doubt of position expres was the in a view facial degree, emphasis with in the first murder inflection, sions, in voice and mannerism the evidence was on malice. Circumstantial answering voir He questions the dire. In the subject No. 6. seventh of Instruction totality responses evaluated from instruction, manslaughter in the first de- and experience the courtroom environment of- as lesser included gree was defined day. supports his evalu The record degree, with murder in the first fense of Accordingly, ation. no error occurred of malice and heat of emphasis on absence excusing jurors. 8, 9 and Instructions No. passion. ad appellant’s proposition The third provoca- passion, adequate heat of defined jurors for who excusing dresses the cause tion, of malice. Instruction and absence cannot state that could consider summarized mur- the definitions of No. Witherspoon vis a vis penalty death under manslaughter and degree der in first bias, challenge jurors implied on the degree, emphasis with first 5859; 1910, O.S.1981, now 660. R.L. § § all beyond elements prove burden State’s sug this The classification of State’s operation and the a reasonable doubt Court gestion by appellant this in the defendant’s favor. presumptions ignore Supreme the mandate of the with charged appellant The State 660, hold Witherspoon proved each degree murder in the first and unconstitutional is unfounded. The Su Included element of crime. every jurors preme not who Court did hold under facts of within that crime must could not consider degree, in the first manslaughter case excluded, simply that was a valid said jury carefully and the court instructed basis for exclusion. every element of regarding each and argument precludes The that Section majority and concur- crime. both See has Witherspoon excusal for cause under 536 P.2d ring opinions Morgan Gibson, rejected supra, been this Court. of the word use Koonce, supra. unpersuaded We are manslaughter comparing “reduce” holdings these should be reconsidered. instructing on the heat when murder provocation, as was appel passion upon adequate In his fourth proposition, 9, oper- 8 and does not uncon done in Instructions lant states that the instructions proof ate to shift the burden stitutionally proof shifted burden of required to mitigate him to the homicide from murder defendant. State passion heat of at of malice and manslaughter, prove absence drawing Court’s had commit- proof that the No. specifically tention Instructions aforethought. 5A, with malice 7, 8, alleges 14. that he ted murder He
H95 However, the jury interpret 5A, was free to Instruction No. to which the de facts proved overruled, and objection determine that fense’s State was reads as had proved manslaughter rather than mur- follows: der. relationship This bears no any proof You are further a instructed that de- of the appellant.
demanded sign may to effect death be inferred from the fact of the that killing killing when is appellant The maintains Mullaney that dangerous weapon done of a by use Wilbursupra, controls. Mullaney, In such a manner as naturally and probably statutory presumption operated against the to cause death unless the circumstances defendant he had committed the homi- raise a reasonable doubt whether such cide with aforethought. malice This pre- design existed. sumption, however, could be rebutted defendant, proof, by the that he had acted The appellant maintains that this instruc- in the heat passion. of Mullaney’s jury was parallels tion presump- unconstitutional instructed that malice aforethought and tion Montana, struck down Sandstrom v. heat passion are inconsistencies and Sandstrom, supra. jury In was told negate defendant could by former that “the law presumes person in- proving the Supreme latter. The ordinary tends consequences of his vol- held that this was a shifting acts,” the burden untary absolving thus effectively persuasion defendant, to the proving contra- every State from each and element right vention of process his due beyond a reasonable doubt.
law. The is distinction obvious. In the case at hand, presumption no was York,
In
declared. An
Patterson v. New
supra,
inference
provided,
was
but the
was
statutory
provided
scheme
for the affirma-
legal presumption
not directed
tive defense
the defendant had acted
should or
under
would
followed.
an extreme emotional disturbance for
which there was a reasonable excuse. The
assignment
error,
As his fifth
the ap-
Supreme Court held that
the Patterson
pellant seeks reversal
basis of certain
court,
Mullaney,
unlike
did not shift
says
instructions which he
denied him his
burden to the
disprove any
defendant
right
to have his claim self-defense con-
fact essential
to the offense because the
jury. Specifically
sidered
it is al-
affirmative defense of emotional distur-
12, 12A,
No.
leged
Instructions
and
bance bore no direct
relationship
12B misstated the law and denied him his
element of murder.
Mullaney,
Unlike
noth-
theory;
self-defense
and that
Instruction
ing
presumed
in Patterson. The Court No. 12A
the burden
proof
shifted
to him.
held,
recognize
“To
all mitigating
at
cir-
objections
The only
made at trial went to
cumstance
require
does not
the State to
12A
12B
repetitive
confusing.
prove its
nonexistence
each case in which
argument
primary
The
is that In
is put
fact
in issue...”
at
U.S.
struction No. which
the self-de
parallels
at
97 S.Ct.
H97
*11
reveals
fense
the
was not The
on
appellant
ruling
advisory
a motion in limine is
theory.
denied his defense
only,
ruling
and an incorrect
is not reversi
fact,
ble
In
no error
error.
occurs until the
Also attacked are two
of
portions
trial,
during
objection
matter arises
an
is
closing arguments by
the
the prosecutors,
entered, and,
time,
the
at
trial court
appellant
which the
bring
cites to
this case
incorrectly permits or prohibits
Teegar
it.
However,
directly within the Neal rule.
an
State,
den v.
563 P.2d
(Okl.Cr.1977).
660
In
arguments
examination of those
reveals no
hand,
the case
the appellant’s
at
own testi
improprieties
nor exacerbation of
con
mony
by
was the source which the
was
by
fusion created
12.
Instruction No.
exposed
prior
to the evidence of his
convic
Finally, an attempt
is made to
appeal.
tion. No relief is available on
characterize
shifting
Instruction No. 12A as
The
proposition
appeal
seventh
on
burden,
Mullaney
in violation of
Wil
v.
addresses the trial court’s
ap
denial of the
bur,
however,
supra.
argument,
That
is
continuance,
pellant’s motion for
on
filed
completely without merit. No
part
trial,
day
the first
which was based upon
cited instruction indicates that
the defend
pendency of
collateral attack on the
ant bears the burden to prove beyond a
prior
murder conviction Missouri. That
reasonable
that he
doubt
acted in self de
conviction, arising out of a guilty plea, was
Furthermore,
fense.
the citation to Berrier
allegedly
Boykin
secured in violation of
v.
v. Egeler,
(6th Cir.1978),
see § they pulled guns up those on me there in Sapulpa. Finally, hearsay these statements demon- Q. right. already All You had two strate a spirit trustworthiness within the Why guns. get did another one? specific exceptions. Well, A. had Kathy one them. 2803(24); 2804(B)(5). allega- § tion error is not supported by Q. right. law. All A. Highway And Patrol State In his argument, appel tenth Chandler had the other one. lant contends that the trial court erroneous Q. get How did it? *13 ly ruled testimony inadmissible the of his They A. took it off me. probation officer, in which she would have Q. take off appellant you? testified that the Where did he had stated to her, homicide, after the that his actions freeway. A. On the were in self-defense. The evidence alleged Q. you Is that after had been at this ly should have been admitted under the meeting Sapulpa? hearsay exclusion, which is now embodied Yes, A. sir. in 12 2801(4)(a)(2). perti The Q. gun up you? So had a there with portion nent 2801 is Section as follows: Yes, A. sir. 4. A is hearsay statement not if: Honor, MR. may STUART: Your I ap- (a) the declarant testifies at the trial ... proach the bench? subject is to cross-examination con- THE Yes. COURT: statement, the cerning and the statement (The following proceedings were out of had Jury.) the of the hearing (2) consistent with testimony and is time, MR. At the STUART: this De- express to an offered rebut implied fendant moves for mistrial because of charge against him of recent fabrica- the admission of evidence of another tion. .. at the by Highway crime arrest Pa- However, trial, in this the excluded evi- affect, trolman and its prejudicial [sic] prior dence was offered any testimony to I don’t any probative see value. establishing self-defense, and therefore it MR. He it. COATS: volunteered I properly could not have been characterized didn’t ask him about specifically it. a prior consistent statement to rebut any THE Overruled. COURT: tending State’s evidence establish to recent There are several bases which the fabrication. trial court’s invi ruling sustainable: eleven, proposition number by tation of this evidence both an unrespon appellant addresses the failure of the trial by appellant’s sive answer and own court to declare a mistrial when the appel testimony meeting Sapul- regarding lant testified to evidence of another crime. pa guns, and the existence of certain Hain following dialogue occurred on cross- State, (Okl.Cr.1979); ta v. fail appellant by examination the District object ure time defense counsel to Attorney: prevent hearing from this evi Q. Now, many guns how did own dence; giving and the of an instruction during prior August the week the 13th the court which evidence other crimes of 1977? only pur was to be considered for limited A. Two. However, poses. primary issue here is
Q. guns they? What kind of were whether the evidence of other crimes af- 1200 find that (Okl.Cr.1966). 920 We jury, we find P.2d verdict
fected the ar- Attorney’s of the District susceptible portion facts are first that it did not. These State, he Agee he states that believed ruling in in which gument, to this Court’s Degree where (Okl.Cr.1977), there in the First at P.2d 913 it was Murder crime, another obvi- only implication of error was harmless when filing, an time of if extend defense counsel. “To only guilt. ous the evidence of weighed against rule California, of this protection U.S. 87 S.Ct. Chapman v. [other crimes] might which implication every possible (1967); James v. L.Ed.2d 705 be a defense counsel would conceived P.2d 862 rule. stretching of the This Court severe assignment of er- fourteenth Under his far.” willing extend rule ror, argues that the miscon- the defendant Agee, at 916. supra, argu- during closing prosecutor duct pro- sub impeachment is the trial Improper stage ments the second appeal. ceedings prejudiced on defend- ject proposition irreparably of the twelfth testified, trial. impartial examina a fair and right direct ant’s tion, for murder. to his former conviction in his prosecutor The statements cross-examination, the elicited During State com- argument of which defendant final parole evidence of related violations. are losing are “We plains as follows: is
Although both addressed this Doesn’t it some- parties ability angry. to become author appeal, sue neither cited relevant sometimes feel that some- times—Don’t (Okl.Cr. up P.2d no ity. got say Dick v. we times have stand *14 alleged error will not be con 1979). This No more.” more? You know? sidered. objection was over- After defendant’s error, the assignment continued,
In ruled, his thirteenth “That has the prosecutor to the appellant calls this Court’s attention commit crimes you to and cannot got stop? argument by made the District life following And a impunity. of this kind with stage of the first Attorney punitive. at close man We sentence for this isn’t trial: it didn’t already. tried that And ” work.... thought believed ... I and MR. COATS:
that when I believe : n it was Murder that it filed n : this sfc now. case in the First sh ... I think [*] Degree n : we pick a week He continues ... up I suppose you five morning paper in month further, years, don’t do and he it, has and killed you or live with you else. How do somebody entered and objection was overruled.] [An You yourself: to say that? How do point, at this equally ... I am convinced know, courage do to if I had had the of the witnesses. listening to evidence the evidence right what was and what demonstrates, amply I think the evidence I requires, if compels what the law and here, way through all the and then, it courage to do had had the ultimate may compelled one happened. only Not wouldn’t have conclusion, is this Defendant and by coming possibility there distinct two of Murder in committed cases more, you might no saying out and Degree... First act.... deter others from this prosecutor is permitted overruled, objection was After further and state his conclu logical draw inferences prosecutor continued: Williams v. sions based the evidence. your judgment State, Suppose How know P.2d 557 920 courage stand having ever, here and prosecutor it is for the improper just deter one it, suppose you up say and personal opinion or to influence state his committing crime. person other from rely expertise just a State, to think minute person 413 one attorney. Davis v. Cause State’s See
1201 they before it. they pull do Before For assignment his fifteenth of error ap- won’t, trigger, and and the score is pellant argues that the Oklahoma death even.... statute, 701.9, 21 penalty O.S.1981 consti- § punishment; tutes cruel and unusual vio- support allegation, of this defendant right process lates his to due equal cites a number of cases wherein this Court laws; protection of the argument perpetrates has held that the ar- counsel should be particular to surrounding the circumstances bitrary infliction of the death penalty; and the crime of the individual defendant and reveals the total absence of statutory not for the need of the community speak mitigating circumstances. (Mitchell State, out and deter others. v. Okl.Cr., 566; 408 Okl.Cr., P.2d Ball v. That the death is not cruel 340; State, Okl.Cr., 375 P.2d Potter v. 511 and punishment firmly unusual estab 1120);
P.2d
should
attempt
not
to make the
153,
v.
Gregg Georgia,
lished
U.S.
defendant bear the burden for an entire
2909,
(1976).
S.Ct.
L.Ed.2d 859
We reit
group
wrongdoers (Chase
v.
Okl.
erate that
it was constitutionally incorpo
Cr.,
867);
541 P.2d
attempt
should not
rated into our
procedure. Eddings
criminal
get
of parole
issue
jury.
before the
State, Okl.Cr., 1980,
None of the cases cited defend (remanded 68 L.Ed.2d for resentenc- argument ant deals with of counsel in the ing), comports process therefore it with due second stage of proceeding involving and equal protection requirements. death penalty. There was evidence in the us, during case before stage second While it is true that as it appears trial, that the pre defendant had been 701.9 does not enumerate viously murder, convicted of and he did specific mitigating circumstances as re prison once, return from again, to kill quired by Gregg, supra, grounds this is not twice, but bodily caused serious injury for reversal because its instructions the to two others. Nor can the remarks of the eight trial court submitted such circum prosecutor be considered an “unmistakable *15 stances further that jury and instructed the reference” pardon to the parole system. and need not confine its deliberations them. His remarks were solely derived from the They were allowed to consider addition direct presented evidence during both mitigation al ap circumstance which stages of prosecutor the trial. The was peared from the evidence. No oc error justified remarks, in his which fell within curred. permissible the boundaries closing argu ment. Appellant’s assignment sixteenth Furthermore, any alleged error is error that 701.9 is un might which have occurred was by waived constitutional because the has State failed the defendant’s failure request that the penalty to show that the death fulfills a jury be admonished disregard the state compelling State interest which cannot be ment. In supra, Sallee this Court gratified by less drastic means. held that for an alleged error to be properly However, adopted this rationale was not preserved by for review ap this Court on Supreme Gregg Georgia, the Court in peal, defense counsel must not only voice a supra: timely objection, but must request also that Although category we invalidate a cannot jury be admonished to disregard penalties deem less severe because we case, statement. In that the defendant penalties adequate to serve the ends of request failed to an admonishment penology, imposed court held ... the sanction can- preserve he failed to properly record, thereby jus- waiving right totally penological his to com be so plain of the comments alleged as error. gratuitous tification that results in accord- was also instructed 182,183, jury suffering. 428 U.S.
infliction of
701.11 that
sen-
ance with Section
at 2929.
S.Ct.
require
we
ture
lected
penalty selected
Therefore in
severe
[*]
presume
against
penalty possible
n
democratically
legislature
the constitutional
its
assessing
!
n is not
validity. We
n
a
cruelly
punishment
select
elected
long as the
[*]
inhumane
measure,
may not
the least
legisla-
[*]
se-
tence
We hold these instructions
aggravating
sufficient
found
trary
mitigating
or
would
penalty.
no
discriminating
aggravating
guidance
circumstances
circumstances
life
imprisonment
circumstances
application
prevent
outweighed the
gave
they found.
an arbi-
if
or if
jury
crime invoked.
or disproportionate
was not
proof
We
burden
find that
on those who
And
burden rests
heavy
by these instructions.
shifted
repre-
judgment of the
attack the
would
error
proposition of
eighteenth
For
people.
sentatives
the aggravating
appellant contends
is without merit.
proposition
Therefore
the offense committed
circumstance
assignment of
For his seventeenth
heinous, atrocious and cruel
especially
n
instruction
appellant alleges
error
vague and overbroad.
unconstitutionally
unconstitutionally shifted the
number five
our
and reaffirm
reject
We
this contention
proof to the defendant:
burden of
supra, that Instruction
Chaney,
decision
you
the event
You
instructed that in
are
adequate guidance:
gave
No. 8
more of
unanimously find that one or
that the term
instructed
You are further
circumstances existed
aggravating
these
‘heinous,’
as that
term
used in these
doubt,
then
beyond a reasonable
extremely
or
wicked
means
instructions
imposing
to consider
would be authorized
evil,
‘atrocious’
shockingly
a sentence of death.
vile;
wicked and
outrageously
means
unanimously
beyond
If
find
do not
high
to inflict
designed
‘cruel’ means
or more of the stat-
doubt one
reasonable
to, or
pain, utter indifference
degree of
existed,
aggravating circumstances
utory
others;
of,
suffering of
enjoyment
to con-
then
not be authorized
you would
pitiless.
event
penalty
sider the
of death.
assignment
imprisonment
would be
For his nineteenth
sentence
life.
that the evidence
asserts
error
a matter
insufficient as
prosecution
one or more
unanimously
If
do
find
doubt
exist-
a reasonable
prove beyond
circumstances
of law to
aggravating
these
ed,
you would not be authorized to
then
circumstance
aggravating
heinous, atrocious,
of death.
In that
consider the
especially
crime was
*16
imprison-
would be
event
sentence
that
order
essentially argues
He
cruel.
ment for life.
category
within
for the crime
fall
one or more
or mental
you
unanimously
physical
If
do
find
amount of
substantial
killing;
circumstances exist-
has
aggravating
these
which
precede
torture must
ed
doubt and
beyond a reasonable
of the Flori
general interpretation
been the
cir-
aggravating
further
that such
(Fla.
find
1
Dixon, 283 So.2d
v.
da court. State
out-
or circumstances
Florida,
242,
cumstance
428 U.S.
v.
1973). See Proffitt
more
weighed
finding
of one or
However, in
2960, 49
913.
96
L.Ed.2d
S.Ct.
pen-
mitigating circumstances the death
701.12(4),we
construing
O.S.Supp.1976
§
alty
In that event
imposed.
shall not be
by the limitation
only
are not bound
for
imprisonment
the sentence would be
open-ended.
not be
our
interpretation
life.
Accordingly we
Georgia, supra.
Gregg
perpetrated
appellant
since
find
passed constitu-
instructions have
Similar
gunshot
inflicting multiple
mass-murder
Chaney
tional
612 P.2d
muster.
present-
jury
to his victims
(Okl.Cr.1980), we held:
wounds
ed with
evidence
cumstances,
sufficient
from which they
if any
find from the
could find the acts “atrocious” as defined in
evidence
this case. What are and what
the instructions. No error occurred.
are not additional mitigating circum-
the jury
stances
for
to determine.
his
assignment
For
twentieth
of er
The appellant specifically argues
In-
appellant argues
ror
that the instructions of
precluded
struction No. 13
the jury from
the trial
during
court
stage
second
considering mitigating
circumstances of
the trial proceedings were inadequate as a
prior
character and
record. We do not
matter of law. Particularly arguing that
agree.
6,
When read with No.
the context
the jury was not instructed properly under
jurors
of these instructions bound the
21 O.S.Supp.1976,
they
701.11
§
may
confine their
objective
deliberation to
anal-
impose
refuse to
the sentence of death after
ysis
presented
of the evidence
dis-
finding
presence
anof
aggravating cir
pense with any deep seated bias or arbitrar-
cumstance which outweighs mitigating cir
iness. No error occurred.
cumstances, appellant demands reversal.
twenty-third
For
assignment
his
of error
Appellant
object
did not
at trial and offers
appellant argues that
the trial court im-
no authority
proposition.
for his
We find
properly
jury
unanimously
instructed the
that the
fairly
instruction’s
and accurately
return a verdict and select a verdict form in
the applicable
stated
law. Batie v.
violation of 21 O.S.Supp.1981
701.11.
§
Furthering
reversal,
argument
it is
For his twenty-first assignment of
argued that
701.11
mandates
trial
§
error
argues that error occurred
jury
court to instruct the
to render a life
in an instruction which
jury
allowed the
if they
reasonably agree
sentence
cannot
consider all the facts and circumstances
verdict;
that the
if
court would intervene
presented
stage
first
proceed
of the
agree.
could not
ings in considering the
punishment.
correct
Jury verdicts in Oklahoma criminal
However this contention is without merit in
procedure
must
unanimous. 22
light
Ohio,
Lockett v.
438 U.S.
conjunction
922.
When read
with
§
S.Ct.
(1978)
Judge R. whether will sentence, Don- this and the Honorable as one of alterna- appeal ment in death Powers, law, case Judge for the 23rd should the ald E. District state provided tives appointed punishment. to serve in Judicial District was be for that appropriate this Judge his stead. Powers authored mind, the stan- trial court’s With opinion. question pertinent. is not dard first read, and it confusing to question second BUSSEY, P.J., concurs. hear. Giv- confusing to must be even more BRETT, Justice, part concurs in and dis- response to that, and Metivier’s en Juror part: sents attorney’s question, excusal the defense was error. juror of this for cause agree I the conviction for While Degree should be af- Murder in First analysis majority’s that the I also believe firmed, majority I concur with the cannot clearly Musgrave voir Juror dire of death should be affirmed that the sentence First, Musgrave Juror indicated erroneous. Metivier and because I believe that Jurors agree to the that she could that she believed Musgrave were excused in violation to her doing violence without penalty death Illinois, 510, 88 Witherspoon v. 391 U.S. more The court demanded conscience. (1968). S.Ct. L.Ed.2d she that she didn’t positive answer and said death agree to the Metivier the believe she could When court asked Juror on her con- having its an effect question your “... ending, reserva- [A]re her his stan- Then the court asked [djeath [pjenalty?” tions about the She an- science. dard, prevent swered, “Would reservations negative response your “No.”1 A ques- mean, penalty?” voting for the question interpreted from must I “No,” by, “No. said, followed “No, are I my reservations not such that tion. She attorney I The defense think would.” penalty.” would not inflict the death How- don’t language. apparently 1. from the use Confusion stems question negative the court of a couched *18 if possibly then asked that meant she could
impose particular the death in a penalty
case, said, she is right.” “Yes. That standard,
Finally, the court asked her his agree
“Could to a imposing verdict
death penalty doing violence to
your question, conscience?” and she answer- ed, said, already “No.” As I have whether
it would do violence to her conscience is not voir issue. This dire is replete with
confusion, only and the two things that are
clear are as follows: It would affect her
conscience. And this prevent would not her
from considering the penalty under appropriate circumstances.
The exclusion Musgrave of Juror was er-
ror. reasons,
For these I believe sen-
tence should be to imprisonment modified
for life.
Roger STAFFORD, Sr., Appellant, Dale Oklahoma, Appellee. STATE
No. F-79-722.
Court of Criminal Appeals of Oklahoma.
June 1983.
Rehearing July Denied 1983. alternatives, jur- punishment 2. The crucial determination whether the one of the conscientiously or would consider the death not whether affect her conscience. would