Duckett v. State

We reject contention that Pointer’s 1367(d)

§ saved her state claims after the court.

dismissal the federal Section

1367(d) only operate can to save a claim that

initially comes before the federal court while controlling that

the statute of limitations ease, running. In the instant

claim is still filing governmental tort action

the time already expired

had when the state claim was short,

filed in federal court. there was no 1367(d) §

statute of limitations for to toll. timely in

Pointer commenced her action O.S.1991, pursuant §

federal court 100.

However, the action was once dismissed court, § nor

federal neither 28 U.S.C. 1367(d) permit

§ were available new result,

filing in state court. As a action timely

refiled state court was not as it was period provid-

filed after the commencement 157(B) O.S.1991, § expired.

ed for in 51 had correctly granted

The trial court the School

District’s motion to dismiss.

CERTIORARI PREVIOUSLY GRANT-

ED; THE OPINION OF COURT OF AP- VACATED; THE

PEALS JUDGMENT OF

DISTRICT AFFIRMED. COURT WILSON, C.J., HODGES,

ALMA

LAVENDER, SIMMS, WATT, OPALA and

JJ., concur.

KAUGER, V.C.J., and HARGRAVE and

SUMMERS, JJ., concur result. DUCKETT, Appellant,

Robert Don Oklahoma, Appellee.

STATE of

No. F-89-644. Appeals

Court of Criminal of Oklahoma.

Oct. 1995. 25,1996.

Rehearing July Denied Geer, Ruffin, Public

Kurt Joe Assistant Defenders, City, appellant at OHahoma trial. Merritt, Roberts,

Carolyn As- L. Dora S. Defenders, City, for sistant Public OHahoma appeal. appellant on Macy, Attorney, Brad H. District Robert Miller, Attorney, District OHa- Assistant City, at trial. homa for the State Loving, Attorney Brimer General Susan OHahoma, Blalock, Attor- A. Diane Assistant General, ney City, for the on OHahoma State appeal.

OPINION JOHNSON, Presiding Judge: Duckett, Appellant, was Robert Don charged, of the crimes of tried and convicted Concealing Degree, Sto- Murder in the First Property Larceny an Automobile len and County, in of OHahoma the District Court The filed a Case No. CRF-88-6248. State asking penal- Bill of Particulars for the death aggra- ty, jury found evidence of five and the 1) vating that Mr. Duckett circumstances: felony; previously convicted of a violent 2) heinous, especially that the murder was 3) cruel; that the murder was atrocious or avoiding purpose for the arrest committed 4) was com- prosecution; that the murder serving Duckett was a sen- mitted while Mr. 5) and that Mr. imprisonment; tence of continuing going cops to call the on him. a threat John was He Duckett constituted death, punishment gang-raped at told authorities that he had been society. The set years imprisonment, respec- prison, years and 10 and he and Mr. Howard were accordingly tively. fighting pass trial court sentenced a over homosexual Mr. Howard n withthe sentences on the lesser counts to him. made toward concurrently. Appellant does not con- run The State’s case consisted of evidence validity of the convictions on the test proved unprovoked an Ap- which attack and third counts. second pellant in order to rob Mr. Howard and a prevent having murder to Mr. Howard from Appellant thirty-two propositions of raised Appellant arrested. There was evidence that errors, none, found several error. While we fireplace poker the victim was beaten with a cumulatively, singly or warrant reversal ashtray. and the wooden stand from an His judgment or modification of the sentence. ankle was broken and he had been struck at judgment affirm the and sentence of We separate Among least 19 times. various oth- death. wounds, er head his skull was fractured in 18, 1988, Howard was On October John places eye rup- numerous and his left apartment. He had been found dead punctured. tured and There were blood severely fireplace poker and beaten with walls, spatters high both and low on the ashtray. of an His hands the wooden stand indicating continued beat bound with wire from a han- and feet were ground incapa- him after he was on the and ger. spatters and There were blood stains smears, running away. ble of Blood on the apart- the two all rooms but bedrooms jeans victim’s indicate that he either was keys missing, ment. His and car were trying away dragged through to crawl or was missing from the conve- over $200.00 spatters the blood. Blood on the windows manager. nience store where John was a Appel- and the closed curtains indicate this, prior A few weeks John had be- open, lant beat the victim with the curtains male, young Appellant, friended a transient then continued beat the victim after helped employment him to obtain at the stopping to close the curtains. The victim’s job Fair. later State He offered wire, hands and feet were bound with and he jobs helping odd at with convenience had, point, gagged at one been with a rolled managed, store which he and offered to let up sock and a bandanna. the medical While Appellant stay with him. The deceased was examiner could not tell if the wires were Appellant escapee was an from unaware ended, beating Dr. added before or after the prison, robbery by had been convicted of who testify un- Choi did that there were bruises force. Appellant the wire. stole the victim’s der keys and the store where robbed convenience 1, 1988, Appellant was ar- On November Appellant changed the victim worked. also Creek, Arizona. He rested Clear plates ear the license on the victim’s with driving car John Howard’s at the time. He parking another ear in the lot and stole the plates had switched the license on car John’s victim’s car. plates parking of car in with the another the apartment complex. lot of the victim’s Other relevant facts will be discussed Found in the trunk were a blood-stained assignments they of to which re- the error

jacket bags and Levis the from bank the late. store. I. PRETRIAL ISSUES During questioning by authori- Oklahoma ties, error, Ap Appellant assignment admitted that In his first of he John fight pellant had a where five or six blows were asserts he was denied effective assis left, exchanged, trial court’s refusal to but when he John was tance of counsel breathing. grant attorney’s request a continu on his feet and He further told his for only trial on authorities that he had bound John’s ance. This case was set for June 2, 1989, keep coming prosecution him filed hands to from after him. 1989. On June Being escapee, distinguishing list be- an he was also afraid that its bifurcated witness trial, witnesses, stage of As for the second stage en- first and second

tween witnesses, prejudiced or respectively. also fails to show how he was dorsing and 73 continuance, on the unprepared for a for trial. Of the 74 names Defense counsel moved list, second-stage June six were called. Of was denied. On witness which witness, Britten, second six, defense counsel with provided State David lived those one summaries, and on June stage evidence allowed to inter- out of state. Counsel was amended wit- prosecution filed two second-stage prior David Britten to the view lists, increasing the number of witnesses ness that he trial. has failed to show (second (first stage). stage) to 57 any of unprepared to cross-examine a continu- again moved for Defense counsel these witnesses. inability due to his to contact witnesses. ance 16, 1989, de- this motion On June also surprised defense counsel Where action, nied. his an he should withdraw at such ready file a for trial and nouncement rights that his to effec- Appellant contends continuance, in postponement for motion hampered by counsel were tive assistance of constituting facts which he should set out the of the witness lists because the excessiveness evidence, any, if surprise other such and the to contact all the his counsel was unable testimony of produce could to rebut the he period of people on the list in such a short witnesses if the trial of the such additional Appellant further contends that de- time. this, he fails to do ease is continued. Where hampered not fense counsel was also any, v. if is waived. Jones exactly would be knowing which witnesses (Okl.Cr.1975). trial, therefore, spreading his during called ease, showing surprise there was no effectively defend his resources too thin to note that it is the defense counsel. We client. County At District policy of the OMahoma counsel, a To show ineffective assistance of policy. torney’s open to have an file office two-prong set must meet the test defendant argument is without merit. Washington, out Strickland 668, 104

First, performance he must show that the TO II. ISSUES RELATING is, That that trial trial counsel was deficient. JURY SELECTION really acting as “counsel” at counsel was not error, Ap assignment of In his third all, representation was unreasonable his pellant claims that the trial court excused norms, professional and that prevailing under who, although against cause Juror Weaver challenged action could not be considered fair and penalty, agreed to be the death Second, strategy. a defendant sound trial law, refusing to excuse Juror follow the while performance must show that trial counsel’s inability Hodge, expressly who admitted prejudiced him outcome of the case. and the agree with to follow the law. We do Any showing that outcome would have court’s Appellant’s assessment of the trial State, Fisher v. been different is sufficient. Ju actions. much effort to determine After (Okl.Cr.1987), 1003, 1011-1012 cert. 736 P.2d law, ability to follow the the ror Weaver’s denied, 1061, 2833, 100 486 108 S.Ct. U.S. following ensued: L.Ed.2d 933 telling you’re me is THE COURT: What Here, Appellant did not show that he was yourself indi- you cannot divorce from the testimony unduly by any prejudiced of the the that of the voice of vidual to become nothing witnesses. There State’s OMahoma; right? is that State investigation a show that more extensive As to the helped would have his defense. I think so. JUROR WEAVER: by stage, 17 called first of the witnesses And, you could follow the law MR. GEER: (3) state, original listed on the three were not you. Judge gives that They 2nd Information. were on the June Except for in the case list, giving adequate counsel JUROR WEAVER: thus defense penalty, I’m not too sure. of the death investigate before trial. time

15 Witt, 412, 424, Wainwright In 469 problem particular juror U.S. with that and was 844, 852, 841, 105 S.Ct. 83 L.Ed.2d 851-852 waiving any Also, challenge. defense counsel (1985), Supreme Court held that the test opposed was not so to Juror Hodge so as to juror properly for whether has been ex compelled be to use peremptory one of his juror’s cused is “whether the views would Therefore, challenges. Appellant any waived ‘prevent substantially impair perfor possible problems he Hodge. had with Juror juror mance of his duties as accordance proposition is without merit. ” with Apply his instructions and his oath.’ assignment his fourth Appel ing this standard to respons Juror Weaver’s lant contends that the pur was selected es, properly he was clearly excused. He suant to a scheme where cognizable certain inability indicated his to follow the law that classes of citizens part were not of the given by was to him the court. In Dutton v. pool. Appellant asserts that O.S.Supp. 38 1134, (Okl.Cr.1984), 674 P.2d , we State 1987, O.S.1981, 28(A) § § 18 and are un juror properly held that a dismissed who constitutional. previously We have ad (she) stated he or she did not think he could argument dressed this and found no merit. penalty. Therefore, consider the death it 676, See Sellers v. 809 P.2d 681-682 not error to dismiss Juror Weaver. (Okl.Cr.1991), denied, 912, cert. 502 U.S. though Even Hodge expressed Juror 310, (1991); 116 L.Ed.2d 252 Fox v. ability some reservations over his to find for State, 562, (Okl.Cr.1989), 779 P.2d cert. Appellant, knowing Appellant that had ad denied, 110 S.Ct. someone, killing properly mitted he was not (1990); L.Ed.2d 777 Moore v. During dire, excused for cause. voir he ex 165-166 cert. pressed ability concern over his Ap to find U.S. pellant guilty guilty by or not reason of (1987); Williams v. insanity knowing Appellant that had admit (Okl.Cr.1973). killing However, ted the victim. spe when cifically asked if he could be a fair impar III. FIRST STAGE ISSUES juror, Hodge tial Juror responded he would hope that he could. Appellant’s second First, error is two-fold. he asserts that dis After the elements that the state would covery abuse the State him denied due prove, proof, have to the burden of and more process and a fundamentally fair trial. Sec explained Hodge, law were to Juror he ond, improper he asserts that rebuttal evi asked, again if under those circum- deprived dence him of a fair trial. stances, juror did he think he could be a fair contends that the State acted in faith bad Hodge the trial. responded Juror that he failing to disclose the correct address of thought though he could. Even Juror David Britten. The State contended Hodge clearly expressed his reservations given address was the last known address for giving about guilty a verdict of not or not However, Mr. Britten. Mr. guilty by Britten was in insanity reason of when he knew prison in Washington, the State of a fact killing had admitted the vic- tim, prosecution known but the test is not revealed to whether he would be able to lay defense counsel. opinions aside his impressions solely

render a verdict pre- on the evidence purpose in furnishing a defendant with sented in court. Wooldridge v. 659 names and addresses of witnesses to be used (Okl.Cr.1983). See also Irvin apprise the State is to him who the wit Dowd, 717, 1639, v. 366 U.S. 81 S.Ct. 6 they may nesses are and where be found. (1961). L.Ed.2d 751 State, (Okl.Cr. Sprouse 481, v. 441 P.2d 484 1968). Hodge

Juror did state that The did not he could State disclose to defense addition, be fair and follow the law. In counsel a more definite address of the wit counsel, defense after continued voir requested by dire of ness when the defense. We Hodge, passed cause, Juror him for from admonish the State to be candid and fair and which it can be inferred that he had no to disclose.

16

However, evaluating admissibility In the overwhelming of the evi- in view videotape, Court uses the same balanc against Appellant and the fact this dence produce admissibility pho ing able to his own rebut- used for the Appellant was factors State, 269, David tographs. Chaney tal to rebut Britten’s rebut- v. 276 witnesses (Okl.Cr.1980). testimony, no photo tal we find reversible error. The admission of graphs Britten the Appellant was able to interview Mr. is a matter within trial court’s clearly discretion, prior testimony, and to his rebuttal discretion. Absent an abuse testimony going to be. what his was this Court not reverse the trial court’s knew will 384, such, prejudiced by not not ruling. As was v. Williamson denied, (Okl.Cr.1991), 973, trial. 503 having prior access to the witness 400 cert. U.S. 1592, (1992); 112 L.Ed.2d 118 308 (Okl.Cr.1984), Nuckols P.2d Additionally, v. Mr. was a rebut Britten denied, witness, rt. 105 S.Ct. tal testified that Mr. Duckett who ce (1985). during displayed homosexual tendencies years testimony used to prison. in was admissible, the of the To be contents Appellant’s defense that he was re rebut videotape and its probative must be relevant pulsed by a ad frightened and homosexual substantially outweigh prejudi value must its due fact that vance made the victim to the cial effect. Smith P.2d gang-raped prison. pre he in Witnesses cert. U.S. clearly not senting rebuttal evidence need be 98 L.Ed.2d The Lavicky v. endorsed. probative photographs of value of murder (Okl.Cr.1981). can be victims and crime scenes manifested ways, including showing na numerous the proposition contends Appellant also this ture, extent, wounds, depict and location of prior failed to to trial that the State disclose scene, ing corroborating the crime the regarding a agreement its with Mr. Britten Williamson, testimony. medical examiner’s against pending weapons charge him in Le- 812 P.2d at 400. County. charge The was indeed Flore July 3, on dropped the State 1989. How- videotape prej- We that the is find neither ever, clearly the record indicates that the videotape udicial the nor cumulative. While brought up during the deal State its direct graphic, gruesome is it is not so be as to Mr. examination of Britten. Mr. Britten prejudicial. The victim is in the considered hoped charges against that the stated that he background away and Ms head is turned so dropped. him counsel would be Defense major injuries upon inflicted victim fact, surprise, no more than showed constantly jury. being are not shown adequately assured that the knew that probative videotape does have value Mr. Britten could receive deal from the no pictures since were admitted that showed exchange testimony. State in for his We find shoulders, the deceased’s head or where the proposition to be without merit. majority injuries were sustained. The videotape also corroborates the medical ex- proposition fifth Appellant’s of error testimony Appellant’s aminer’s and refutes issue, evidentiary allegedly affect raises an theory crime was that the committed without ing stages of trial. He that the both asserts malice. tape admission of the video of the crime Appellant’s argument videotape that the is deprived impartial him of a fair and scene the cause of death was not relevant since prevented making a trial and from Williamson, rejected in contested has been as reasoned moral decision to whether to Additionally, reject Ap- we 812 P.2d at 400. penalty. impose the death con pellant’s tape “stage contention that videotape overly prejudi tends that the setting” prosecution’s theory depicts tape cial. He also contends proposition has of the case. This no merit. cumulative, “stage and consisted set more of Appellant’s sixth ting” prosecution’s for the case rather than rights a depiction an of he that Ms to fair trial accurate the crime scene. asserts any penalty by Appellant’s a arbi- and to uninfluenced second area of concern by trary were violated the trial court’s giving factor relates to the trial court’s of OUJI-CR discrediting comment his defense improper regarding Nos. 728 and de defendant’s jury. During arguments bench on insanity. before the fense of He contends that OUJI- evidence, admissibility of the rebuttal the incorrectly applicable CR 729 states the law judge following made the trial statements: upon jury required which the its to base worth, THE COURT: For what it’s indi- sanity determination of a in defendant’s or vidually judicially, and not it’s the Court’s sanity Appellant time of trial. at the relies post-traumatic syn- that opinion the stress (Okl.Cr. on Johnson v. 841 P.2d 595 copout by is a 1992) drome that has been used where we held that the the use of people— conjunctive word “and” rather than dis the junctive required “or” jury word the to find point, At this defense counsel Kurt Geer the insane prongs defendant under both of interrupted judge, voicing the concerns his jury might M’Naghten just the test rather that the be hear his than one able to judge they insanity. find comments. The continued: before could This Court held in Jones psy- COURT: proper THE That’s not a (Okl.Cr.1982) that a have, legally defendant was problem chological people that that insane, they merely have established this to cover (sic) up crimes that has been committed during [I]f the commission of he the crime Now, just the Vietnam Veterans. that suffering from a mental or disease for— rendering him defect unable to differenti- counsel, Ruffin, Defense Mr. then con- voiced right wrong, ate between or to unable jury might the cern that be able to hear the the consequences understand nature and

judge’s judge comments. Mr. asked of his acts. Miller, if standing who was near Mr. Ruffin We believe OUJI-729 does state a de- that he could hear. Mr. Miller indicated he may fendant be found to be if he insane hear, barely, jury but could and that the distinguish right wrong. cannot between away too far to hear. It may also states that a defendant be found ease, nothing In this there is record the insane if he cannot understand the nature jury did, fact, to that the hear reflect the consequences of his acts. The fact that judge’s words. Defense counsel not ask did put the framers of this instruction chose to polled. jury for a mistrial or ask that the be second-prong of separate the the test a such, implied it can As be coun- defense putting of sentence instead an “or” between objection. light sel his In of waived the the two sentences does not make the instruc- overwhelming Appellant against evidence confusing put tion or more more of a burden fact that and the there is no indication that on a defendant. any juror words, judge’s preju- heard the judge dicial comments of the not influ- did third concern about the insan jury’s such, propo- ence verdict. As instructions, ity Appellant contends that the sition is without merit. jury trial court failed to inform the on what Appellant’s eighth assignment they of error guilty to do should find him not First, i.e., insanity, three areas of raises concern. trial reason of the trial court failed (Defense give give court failed OUJI-CR 731. OUJI-CR Instruction No. Proof). Insanity-Burden person of that “no instructed the could be

points burden-of-proof person out that the instruc- if that convicted of a crime was insane given tion the trial court did not contain at the time of commission the act jury’s duty statement critical omissions that constitute the crime.” acquit upon finding insanity. accurately We have instruction states the law concern if given ing reviewed instructions in this case conviction a defendant is be found to whole, they adequately Additionally, legally and find as a do as insane. out, duty Appel- acquit points language

advise the of their similar to OUJI-CR upon finding insanity. appropriate lant was set forth in verdict form jury. propo- assignment, enth he contends there were

which was furnished to the prosecutorial nine different instances of mis- is without merit. sition that, combined, conduct when caused the error, proposition In his ninth unduly jury prejudiced towards him be Appellant flight the instruction was contends the verdict and sentence im- affected 1) given it allowed the improperly because individually. posed. These will be addressed flight jury to consider the evidence as a allegations allegedly oc- Two misconduct presume guilt finding without the factor and First, during curred voir dire. defense coun- beyond of the crime a reasonable elements sel, Geer, prospective juror Mr. asked 2) doubt; and there was insufficient evidence McCutchen, you possible think it’s that “[d]o support giving con the instruction. These might there are other reasons the defendant recently in our deci cerns were addressed stand?” Mr. not want to take the Geer then (Okl. P.2d 682 sion Mitchell v. approach complained asked to the bench and (Okl.Cr. Cr.1993), corrected in 887 P.2d 335 asked, question that when the was he heard 1994). decision, giving on said the Based Macy say, prior Mr. “like two convictions.” flight proper in instruction was this case comments, Macy maMng Mr. admitted these Appellant’s concerning his because statement they but said were in a low voice to co- voluntary departure was made in a statement Miller, prosecutor, and no one else heard Mr. Thus, prop which revealed at trial. it. Mr. stated for the record that he Geer osition is without merit. jury felt the was tainted and moved to have it judge dismissed. The overruled him. In his eleventh of er ror, Appellant contends that there was no time, counsel, The second co-defense Mr. (cid:127) support jury’s finding direct evidence to the Ruffin, juror prospective Smiley, asked aforethought, that circum of malice “[a]nd, you insanity cop- think defense is a support stantial evidence did not malice judge out?” Mr. Ruffin if could asked the he aforethought murder. The test for sufficien approach complained the bench. He cy of evidence where all of the evidence is asked, said, question Macy after the Mr. circumstantial is whether the State’s evi “[y]ou Macy bet.” Both Mr. and Mr. Miller every hy dence tends to exclude reasonable Macy anything. denied that Mr. had said However, pothesis guilt. other than the cir again jury Mr. Ruffin stated that every cumstantial evidence need not exclude tainted and asked the comment be possibility guilt. Berry than other him, judge stating stricken. The overruled (Okl.Cr.1992). imple 834 P.2d 1002 When that he did not hear the comment. At Mr. standard, menting this the evidence and its request, judge Ruffin’s admonished Mr. light in a inferences must be considered most Macy any not to make more comments that to the and the favorable determination Appellant could see or hear. has will be based on whether the rational trier of prejudice. shown no guilt. fact could have found Rudd v. remaining allegations of (Okl.Cr.1982). 791, 794 Based on prosecutorial place during misconduct took case, the facts in this there was sufficient closing arguments stages in both of trial. presented evidence such that the could allegations place during Five of the took Appellant have found that Mlled the victim closing arguments stage of the first of trial. aforethought. with malice We find no merit prosecutor’s comment One such was the proposition. in this expert, characterization of the defense Dr. Williams, clinician, essentially as “a a coun

IV. ISSUES RELATING TO as a or a selor. He is not trained scholar PROSECUTORIAL statistician, apparently very good he’s not a MISCONDUCT objected stating interpreter.” test Defense alleged prose- impugning raises instances of of the defense witness during stages opinion, cutorial misconduct both of was based on Mr. Miller’s own separate assignments nothing trial in three the record. The court overruled seven, objection, numbers ten and twelve. his sev- and allowed a con- objection to tinuing to the remainder them be harmless error. See Stover v. State, (Okl.Cr.1984). 674 P.2d 566 closing argument. Mr. Miller then continued closing argument, saying, that a “[i]s with his The final two remarks occurred thorough impartial Is that an evaluation? during prosecution’s closing argu final by an evaluation? Is that evaluation some- during stage ment the second of trial. Nei they’re getting one for someone because arguments objected ther of these were to. paid?” prosecutor may A on the comment comment, asked, Macy In the first Mr. veracity expert of the defense’s witnesses gentlemen, “Ladies and is he a threat to testimony. and their See Robertson v. society? you your Don’t bet lives on it.” (Okl.Cr.1974). The comment, Macy In the argued, second Mr. above comments were not error. Gentlemen, justice “Ladies and is it to prison, send this man down to himlet have remaining allegations prose- The of sleep every clean night, sheets to on three stage cutorial misconduct in the first of trial good day, by meals a visits his friends and occurred in last few sentences of Mr. family, while John in Howard lies cold said, closing argument where he Mac/s “jobberies grave? justice? Is your Is that con- everyday are committed for a lot justice? cept Jayme How do and Tom car, killings less than a robberies in which go and John’s son visit him?” Again, proper are involved.” this is a com These kinds of comments cannot be con- response ment on the evidence. It was in to doned. There is no reason for them and argument Appellant’s that he lacked the mo go counsel knows better and not does need tive to commit the murder would because he However, far in so the future. we cannot just not have done it to steal a ear. find that the comments affected the verdict. allegedly improper The final ar Allegations prosecutorial miscon gument during stage the first of trial duct do not warrant reversal of a conviction Macy’s in closing argument last sentence Mr. unless the cumulative effect was such to de said, says where he evidence he’s “[t]he prive the a fair Langdell defendant of trial. guilty. you party letting Don’t be a (Okl.Cr.1982). 657 P.2d 162 We do cold-blooded loose.” killer Defense counsel not deprived. believe was so objected. While we find this remark to be assignment is without merit. improper argument and one that is not con In his tenth Court, light doned in of the over Appellant assigns as reversible error whelming against Appellant evidence and the prosecutor’s advising jury, statement comment, fact that this was an isolated we do “[y]ou do not have to consider those offenses it prejudicial. not find to be you until that he decide did not commit the alleged prosecutorial degree, miscon crime of in ...” murder the first pointed during duct stage jury, out the second its instructions to the the trial court Macy trial is that Mr. should not have men included instructions on the lesser included and, too, rights tioned that John Howard had in Degree offenses of Murder the Second right Manslaughter that John Howard had a in Degree. Appel live. These the First statement, expressly argues comments have been lant condemned that the aforesaid in effect, overly being prejudicial this Court as to a withdrew those instructions on the (Okl. jury’s defendant. Jones v. 738 P.2d 525 lesser included offenses from the con Cr.1987). However, light in of the over sideration.

whelming against Appellant evidence and the Both the State and the defense are comment, fact that it was an isolated we do given closing arguments. wide latitude prejudicial. it find to be They right freely have a discuss the evi prosecution

Another contention is that the respective viewpoints dence from their improperly aligned arising themselves with the draw inferences and deductions from argument. “Only “State” to bolster their After argument re the evidence. when viewing question, prosecutor grossly improper comments we find unwar (1985). However, the record

ranted, rights, the accused’s will and affects jurors were led to argument.” does not reflect that the upon improper be based reversal they responsibility. We have believe had no McCaulley v. (Okl.Cr.1988): with the above comments context reviewed that, closing argument and find the entire exercising properly prosecution The contentions, contrary Appellant’s Mr. to on the evidence and to right its to comment actually that the Macy pains took to ensure it, by pointing from out how draw inferences responsibility great. jury that their knew support the lesser-in- did not the evidence proposition This is without merit. instructions, support did first- cluded but jury given full degree a murder. PUNISHMENT V. judge. The proper of instructions set proposition of er his thirteenth nullify argument did not the court’s State’s ror, Appellant that the trial court asserts offenses. on lesser-included instructions right process him due to wrongly denied his is without merit. jury. sentencing Pri- personally address his allegation prose- of Appellant’s last trial, sentencing phase of defense or to the presented proposi cutorial misconduct is Appellant to make an counsel moved to allow twelve, prose alleges where he that the tion jury. to the Defense “allocution” statement jury to that improperly cution led the believe indicated that his client would be counsel death, given, although would a sentence of mercy, limiting plea to a of his statement Thus, argues Appellant, his not be fulfilled. is, sorry pleading saying he was to is unreliable and warrants death sentence judge the motion for his life. The overruled relief. testimony Appellant persis based on dire, jury tently during interrogation that he During voir some members ex- denied the failure of the the crime. pressed concern about committed penalty to deter crime and the failure death Allocution has been defined as the formali- system swiftly strictly penal of the ty inquiry the court’s of a defendant as to Appellant con- impose penalty. the death any legal why he has cause to show whether tends that this indicated that members pronounced against judgment should not be jury panel equate a death sentence do not conviction; or, he him on verdict of whether contends that with death. further on his behalf would like to make a statement Maey encouraged during this belief Mr. present any mitigation information in telling jurors, closing argument “defen- Dictionary, Black’s Law his sentence.1 attorney you to kill his dant’s asked 1990). (6th Thus, place ed. “allocution” takes you you bring All can do is client and can’t. Appel- after the determination of sentence. Unfortunately, only in a of death. verdict that the same rationale for allow- lant claims you one else the twelve of can do that. No sentencing judge a ing allocution before you.” Appellant argues that the can do it for sentencing jury, apply capital to a should jury was thus removed from its sense other- especially where a defendant does not sentence, thereby responsibility for the death testify capital at wise a trial. rendering death verdict unreliable. search and review of other state stat- Our split a on whether a will utes and case law reveal

It is true that a death sentence capital in a case should have the and unconsti defendant be determined to be unreliable right to make a statement to the without where the is led to believe that tutional subject being to cross-examination. Some responsibility imposing the death sen given Mississip specifically the defendant lies elsewhere. Caldwell v. states have tence 2633, 2639, 320, 328-29, 105 right through a of crimi- statute or rule pi 472 U.S. information, statute, O.S.1981, plea and his and the a ment or 1. Oklahoma has similar verdict, thereon, any § asked which states: if and must be any legal why cause to show whether he has appears judgment, When the defendant he court, pronounced against judgment should not be the clerk must be informed direction, him. under its of the nature of the indict- O.S.1981, procedure.2 § nal states have concluded Some 3.Title 701.10: “... [t]he right protected by allocution is a their state and the defendant or his counsel shall permitted constitutions.3 Others have found that present argument state be for or right capital against the common-law allows defen- sentence of (emphasis death.” added). his or dant address her senteneers.4 Oth- courts, however, er state have concluded that This Court addressed the construction of is no

there common-law or constitutional 13(2) O.S.1981, II, § § and Article 20 in right allowing capital of allocution defen- (Okl.Cr. Fowler v. jury.5 Stephen- dant address the State v. 1973), grounds overruled on other in Broo son, (Tenn.1994). 878 S.W.2d (Okl.Cr.1979). kins v. adopted We Supreme construction of the impression This is a case of first Mims, Court of in People California v. 160 First, right Oklahoma6. we note that the to 589, (1958) Cal.App.2d 325 P.2d 234 where it allocution itself a constitutional was held that the fact that may a defendant right. California, v. See McGautha 402 U.S. person defend “in and with counsel” does not 183, 220, 1454, 1474, 91 S.Ct. 28 L.Ed.2d 711 mean that a may proceed defendant with (1971), grounds, on vacated other 408 U.S. questions counsel and also elect to ask 941, 2873, (1972). 92 S.Ct. 33 L.Ed.2d 765 otherwise handle his own trial. We now hold However, Appellant following claims that the 13(2) additionally O.S.1981, § that 22 give statutory authorities him a and constitu II, § give Article 20 do not a defendant a right jury tional to during address the statutory or right constitutional to make a sentencing stage: plea mercy, or otherwise address his 13(2): O.S.1981, § 1. 22 Title “To be al- sentencing jury, where he has elected coun counsel, actions, appear lowed as civil closing argument; you sel to make cannot counsel;” person and defend in and with have both. If a defendant elects to have his added). (emphasis attorney speak, he cannot have also a second II, § 2. Article 20 Oklahoma Constitu- closing argument. tion: “... [t]he defendant shall have the right counsel;” to be heard himself and grant Section 701.10 does a defen added). (emphasis right personally dant the “argue” the issue 32(a)(1)(C); Aim., 2. See Fed.R.Crim.P. jury, Ark.Code sworn regarding statement no discussion 16-90-106(b); 1200; Mak, § 692, § right); Cal.Penal Code Colo. source of State v. 105 Wash.2d 32(b); 546.570; 407, (1986), denied, § R.Crim.P. Mo.Rev.Stat. 718 P.2d 430 cert. 479 U.S. 380.50; Aim., 995, § 599, N.Y.Crim.Proc.Law (1986). P.R.Laws 107 S.Ct. 93 L.Ed.2d 599 34, 168; Ann., Title & Tex.Crim.Proc.Code 42.07; 972.14(2). § § People Wis.Stat. See also Nicolaus, 551, People 5. See v. 54 Cal.3d 286 854, (Colo. Borrego, 1989) (under v. 774 P.2d 856 628, 893, (1991), Cal.Rptr. 817 P.2d 910 cert. rule); Lord, 829, State v. 117 Wash.2d 822 P.2d denied, 1224, 3040, 505 U.S. 112 S.Ct. 120 177, (1991), denied, 856, 216-17 cert. 506 U.S. (1992); Kokoraleis, People L.Ed.2d 908 v. 132 164, (1992) (allocu 113 S.Ct. 121 L.Ed.2d 112 235, 233, 254-55, Ill.2d 138 Ill.Dec. 547 N.E.2d case, rule). capital tion in under 202, (1989), denied, 1032, 223-24 cert. 497 U.S. 3296, (1990); 110 S.Ct. 111 L.Ed.2d 804 State v. Schiedler, 91, DeAngelo v. 306 Or. 757 P.2d 3. 503, (Mo.1992) (en Whitfield, 837 S.W.2d 514 1355, (1988) (judge sentencing capi 1356-60 banc); Abu-Jamal, Commonwealth v. 521 Pa. case); Nicoletti, (R.I. tal State v. 471 A.2d 613 188, 846, (1989), denied, 555 A.2d 857-58 cert. 1984) case); State, (noncapital Harvey v. 835 881, 215, 498 U.S. 111 S.Ct. 112 L.Ed.2d 175 1074, denied, (Wyo.1992), 1081-82 cert. 506 (1990); Commonwealth, 844, Bassett v. 222 Va. 1022, 661, (1992) U.S. 113 S.Ct. 121 L.Ed.2d 586 844, (1981), denied, 284 S.E.2d 853 cert. 456 U.S. (noncapital). 938, 1996, (1982). 102 S.Ct. 72 L.Ed.2d 458 State, 344, 120, 4. See Harris v. 306 Md. 509 A.2d State, 1186, 6. In Mitchell v. 884 P.2d 1205 n. (1986); State, 127, 68 123-127 Homick v. 108 Nev. (Okl.Cr.1994), Court, citing 600, (1992); Zola, Freeman v. 825 P.2d 603-05 State v. 112 denied, 283, (Okl.Cr.1994), 384, 1022, 876 P.2d (1988), 289-290 - N.J. A.2d 548 1044-46 cert. cert. , 590, denied, 1022, 1146, - 115 S.Ct. L.Ed.2d 130 489 U.S. 109 S.Ct. 103 U.S. (1994), noted,: (1989); ''[w]e L.Ed.2d neither address nor Williams v. 445 So.2d 798, (Miss.1984), denied, request speak 813-14 decide the issue of a defendant's cert. 469 U.S. (1985) jury sentencing O.S.1991, 105 S.Ct. to the before under 21 (mentions 701.10(D).” § that defendant to make allowed un- (1994), trial court jury. L.Ed.2d 503 where the penalty to the See Bowen of the death (Okl.Cr.1984), Freeman gave the exact same instruction. denied, fairly accurately that the instruction 87 held cert. 473 U.S. (1985). However, This is without statute stated the law. L.Ed.2d provides that the defendant or his counsel merit. argue, not permitted be to so both. shall error, Appel proposition of In his fifteenth

Additionally, 701.10 uses the term Section that the trial court should have lant claims encompasses than a “argument,” which more presumption on the instructed i.e., mercy, saying sorry and plea of he is He that the should have life. contends pleading Argument entails sum for his life. they should return a been instructed of the material in the record of the mation parole without instead of sentence life against case and inferences therefrom death, prosecution unless the demonstrated penalty. death beyond a reasonable doubt that death was only appropriate penalty. argument case, Appellant In this did not re rejected presented and in Fox v. merely quest closing argument to make but cert. closing plea mercy in addition to to make 1538, 108 L.Ed.2d con argument his counsel. We do not find no error in the trial We encompass to both. strue Section 701.10 Appellant’s requested give court’s failure to Thus, statutory, that no we conclude there is instruction. right7 of a de common-law or constitutional mercy plea to make a for or other fendant error, assignment Ap- In his sixteenth of sentencing jury, in wise address his addition regarding pellant claims that the instructions argument by The trial closing counsel. weighing aggravating circumstances the properly Appellant’s request. court denied against mitigating circumstances was con- trary O.S.Supp.1987, 21 to the dictates of assignment of In his fourteenth er Specifically, § he claims that OUJI- 701.11. ror, Appellant asserts that in one of its in jury weigh totali- 440 instructs the the CR jury, structions to the the trial court errone ty aggravating against each circumstances ously jury sympathy to consider allowed the factor, thereby mitigating dimin- individual victim, thereby rendering his sen for the contrary to ishing the State’s burden Section tence of death unreliable and unfair. The agree. 701.11. We do not complained instruction of is as follows: repeatedly that it This Court has held discretion, may, your [y]ou ... in consider specific for refuses to establish standards the your in sympathy as a factor deliberations balancing aggravating mitigating of the you and then determine whether or v. 812 circumstances. Williamson any give weight to such factor un- should (Okl.Cr.1991), denied, 384, 410 cert. 503 you in all the evidence have heard both der 973, 1592, 112 S.Ct. 118 L.Ed.2d 308 U.S. stages. the first and second Fox, (1992); P.2d at 573. The instruc 779 jury they that recently adequately in tion informs the This Court addressed this issue required aggravating that v. P.2d 283 are to find the Freeman 876 — denied, U.S. -, 590, 130 outweigh mitigating circumstances the cir cert. 115 S.Ct. adopt by jury Appellant’s request to death which never heard 7. We are mindful of sentenced the sound of his voice. Supreme Jersey, position the Court of New Zola, Zola, 384, 548 A.2d at 1045. where in State v. 112 N.J. 548 A.2d Cazes, v. We have also considered Tennessee denied, 1022, (1988), cert. 489 U.S. 109 - (Tenn.1994), 875 S.W.2d 253 cert. 1146, (1989), quoting 103 L.Ed.2d 205 S.Ct. U.S. -, 743, (1995), 115 S.Ct. 130 L.Ed.2d 220, 183, California, U.S. McGautha v. allowing approved where that court a new rule 1454, 1474, 711, (1971), S.Ct. 28 L.Ed.2d give narrowly capital confined tes defendants to grounds, vacated on other 408 U.S. 92 S.Ct. sentencing phase timony jury with to the at the (1972), the court reasoned: 33 L.Ed.2d 765 subject being Howev out er, to cross-examination. permits, bespeaks Legislature appropriate Whatever the Constitution it we deem it that our humanity regard. act in this our common that a defendant not be cumstances in order for them to recommend eighteenth proposition Ap penalty of death. This is 'with pellant points out that the instructions on out merit. mitigation jury did not instruct agreement upon unanimous mitigating assignment In his seventeenth of er required circumstances was not before the ror, Appellant argues that the trial court jury could consider them. con giving following erred instruction re instruction, tends that without this his sen garding mitigating evidence: imposed tence of death was in violation of Mitigating which, circumstances are those Maryland, Mills v. 486 U.S. mercy, may fairness and be considered (1988), 100 L.Ed.2d 384 McKoy extenuating reducing degree as or Carolina, 433, 110 North culpability moral or blame. The determi- nation of mitigating what are circum- you jurors stances is for as to resolve Appellant argues that because “the few under the facts and circumstances of this mitigation instructions on wedged were be case. tween regarding aggravating instructions cir cumstances, and those instructions made nu argues instructing He in the repeated merous and references to the need permissive language mitigating circum- unanimity,” for juror a reasonable could “may stances are those which have be considered” unanimity concluded that extenuating blame, required reducing as also instead of mitigating using mandatory circumstances. This Court language of “must be previously rejected argument has considered” allowed disregard (Okl.Cr Stiles v. mitigating argument evidence. This has .1992). find previously rejected by been We no error. this Court. In Pickens v. Appellant next asks this Court to — (Okl.Cr.1993), denied, -, cert. U.S. vacate his death sentence because the trial 942, (1994), 114 S.Ct. 127 L.Ed.2d 232 we court erred when it refused to instruct the held that “it would have been a misstatement jury they aggravating had to find the factors of law to jury instruct the that it ‘must’ outweighed mitigating “beyond the factors a mitigating consider the presented evidence Specific reasonable doubt.” standards for reduce the blame as away that would take balancing aggravating mitigating circum jury duty from the its to make an individual constitutionally required. stances are not ized determination appropriate punish Stephens, 862, Zant v. 462 U.S. Indeed, ment.” a review of the instructions 2733, (1983). 77 L.Ed.2d 235 See also Walk given jury adequately shows the in State, 273, (Okl.Cr.1986), er v. 723 P.2d 284 mitigating structed on They circumstances. denied, 995, 599, cert. 479 U.S. 107 S.Ct. 93 not disregard were told to mitigating the (1986). argument L.Ed.2d 600 This same fact, circumstances. Instruction No. 9 presented rejected in Romano v. specific listed fourteen jury items which the State, 368, (Okl.Cr.1993), 847 P.2d 392 af could consider as mitigate Appel evidence to firmed, -, 512 U.S. 114 129 S.Ct. punishment. They lant’s were instructed L.Ed.2d 1 Citing Johnson v. that whether the circumstances existed and (Okl.Cr.1987), denied, 731 P.2d 993 cert. they whether mitigating were evidence was 878, 108 (1987), U.S. S.Ct. L.Ed.2d 167 their Additionally, they decision. in were proof this Court held that the burden of structed that order to Appellant sentence analysis strictly applicable is not to the death, they unanimously must find the Romano, weighing process. 847 P.2d at 392. of aggravating existence one or more circum proposition This is without merit. stances, any and that aggravating such cir cumstance or outweighs circumstances assignment Ap- the In his twentieth of Thus, mitigating pellant circumstances. by the instruc asserts the trial court erred tions, given, as do not instructing jury they direct the right that had the disregard any mitigating despite evidence. This to return a sentence less than death a proposition is without merit. finding aggravating that factors out- inflicted, and that while none argu- blows were mitigating factors. This

weighed the themselves, by were fatal rejected by this the blows previously too has been ment lungs filling with 410; with the Williamson, blows combined P.2d at See Court. evidence the death. Further fluid caused Fox, proposition This 779 P.2d at 573. conscious when that the victim was shows without merit. There many the blows were inflicted. Next, during sentencing phase, covering large area of splatters a were blood that stipulation counsel entered defense higher up Many were on the apartment. prior of a vio had convicted been walls, was con indicating that the victim piece felony. stipulation was on lent The moving when these blows were scious and counsel’s hand yellow legal paper, defense over 19 blows inflicted. The victim suffered signed Appellant. writing, but multiple body. skull had blows to his His consti trial counsel claims that this action eye punctured. This evi and his left counsel. He tuted ineffective assistance that the victim dence is sufficient to show court did not that the trial further contends prior physical suffered serious abuse procedure to ascertain follow the correct in accor The was instructed death. stipulation knowingly entering the he was Applying the dance with OUJI-CR 436. and conse the nature and that he understood analysis forth in Nuckols v. two-step as set quences of his acts. (Okl.Cr.1991), 672, 674 cert. 805 P.2d (Okl.Cr.1982), In Brewer v. denied, 2276, 114 500 U.S. S.Ct. denied, 1150, 103 S.Ct. 459 U.S. rt. (1991), aggra- L.Ed.2d 727 we find that ce (1983), we held that a supported than the evi vator is more stipulate that the personally must defendant fail. dence. This must conviction(s) alleged by felony the State prior Second, Appellant claims OUJI-CR threat of violence to did involve the use or unconstitutionally it is vague 436 is for the defendant must person. Counsel jury’s adequately channel the dis does not him. stipulate to so not be allowed agree. instruction cretion. do not We satisfy that the defendant judge must himself constitutionally valid and has been held to be appreciates the nature of understands Romano, 386; 847 P.2d at Boltz clear. See stipulation and the conse proposed arising an quences potentially from either 846, 112 cert. stipulate before he agreement or a refusal to State, (1991); v. 788 P.2d L.Ed.2d 109 Moore may accept the defendant’s decision. (Okl.Cr.1990), denied, 387, cert. 498 401-02 Here, “prior to the Appellant’s stipulation 227, 881, 182 111 112 L.Ed.2d U.S. S.Ct. harmless at felony” aggravator was (1990); Fox, 576; violent Fowler v. 779 P.2d at preju- (Okl.Cr.1989), He fails to show how he State, best. cert. de 779 P.2d 580 by agreeing counsel’s decision to 1537, diced his nied, 1060, 110 108 494 U.S. S.Ct. felony The stipulate prior (1990). to the conviction. paragraph The second L.Ed.2d 775 surrounding prior felony con- evidence sufficiently aggra of this application narrows prove introduced to viction would have been instances where vating circumstance to those aggravator” regard- “continuing threat preceded victim was torture death of the Appellant stipulated had to it less of whether physical abuse. As of the victim or serious Washington, 466 U.S. or not. Strickland v. such, applied in a consti this instruction was (1984). 668, 2052, L.Ed.2d 674 104 S.Ct. 80 is merit- proposition tutional manner. This We find no harm. less. assignment twenty-fourth In twenty-second and twen

Appellant’s evi ag- Appellant contends ty-third allegations concern the of error heinous, prove that he killed was insufficient to gravator, “especially atrocious or dence avoiding purpose of or First, the decedent for the he claims that the evidence cruel.” prosecution. The jury’s finding preventing lawful arrest or support the was insufficient to aggravating circumstance existence of this aggravator. A review of the evidence of said looking killer’s intent. at the alive when the determined reveals that the victim was

25 Fox, Williamson, 407; prosecuted. 812 P.2d at 779 P.2d arrested or TMs Fowler, 588; 576; 779 P.2d at v. must fail. at Stouffer (Okl.Cr.1987), 1349, P.2d 1361-1362 738 denied, 1036, twenty-fifth In assignment Ms of er rt. 484 U.S. 108 S.Ct. ce ror, (1988); Appellant 763, application asserts that the L.Ed.2d 779 Moore v. denied, 161, (Okl.Cr.1987), serving the “while a imprisonment” term of cert. aggravator 873, 212, improper. in Ms ease was He 484 U.S. 108 S.Ct. 98 L.Ed.2d 163 argues aggravator that tMs “In is limited to kill the absence of Ms own state ings intent, prison within a or may in correctional institu ments of such evidence be Appellant escapee tion. anwas at the time ferred from circumstantial evidence.” Ro mano, such, he committed the P.2d at offense. As he con 387. aggravatmg tends that this circumstance is presented Evidence the State showed teehmeally, invalid because he was not “serv Appellant knew John Howard. After ing imprisonment” a sentence at the time beating him he took the victim’s ear and he killed John Howard. plate switched the license with another car parking lot. He then drove to the store impression TMs is a case of first in OMa- using where Howard worked and the' stolen applied aggrava homa. While we have tMs keys entry, money bags to obtain stole the killings occurring tor to those within OMa- register. from underneath the cash TMs is prison killings homa facilities8 and to those ju- sufficient evidence from which a rational Pre-parole committed while on the Condi beyond ror could have found a reasonable Supervision Program,9 tional we have not aggravatmg doubt the existence of tMs cir- application determined escapees. its cumstance. Many legislatures specifically state have ad addition, during interrogation Appellant problem by wording dressed tMs the careful statutes, i.e., stated that he didn’t kill escaped John Howard their “who has from confinement,” breathing. custody that Howard was on Ms feet and lawful or “after mumbled, “I having escaped,” escaping, He then was afraid he was or “while going cops attempting escape escaped.” to call the on me.” TMs state- or had Some escapees by using ment shows that knew that he states have included as, wording would be trouble if John Howard called such “has been sentenced to him cops beating felony,” on him. It can be imprison “under sentence of (Delaware10, inferred from Georgia Kentucky12, this statement ment.” Massachusetts13, Alabama14, being Arizona15, killed m John Howard order to avoid VanWoundenberg escaped custody peace 8. See has from Me lawful aof (Okl.Cr.1986), denied, place cert. officer or of lawful confinement. (1986); 93 L.Ed.2d 395 James v. cert. Statute, 532.025(2)(a)5: Kentucky 12. KRS (1987); U.S. by person offense of murder was committed a State, 1032, (Okl.Cr.1985), v. 713 P.2d Green 1040 prisoner prison who was a and the victim was a denied, 871, 241, rt. 479 U.S. 107 S.Ct. ce employee engaged at the time of the act in the (1986), separate 93 L.Ed.2d 165 overruled on performance his of duties. State, 354, grounds in Brewer v. 718 P.2d 366 (Okl.Cr.1986). (M.G.L.A. 279, 69(2): § 13. Ch. Massachusetts— by The murder was committed a who defendant State, 323, 9. See McCracken v. 887 P.2d 331 jail, was at the time incarcerated in a house of - (Okl.Cr.1994), -, rt. correction, denied U.S. 116 prison, prison ce state or a correctional 166, (1995). S.Ct. 133 L.Ed.2d 108 penal facility or institution or a used for the housing housing treatment or and treatment 11, prisoners. of Aggravatmg 10. Title Section 4209: circum- person stance includes who has committed of- having escaped 49(1): fense after from confinement or capi- § 14. Alabama—Ala.Code The 13A-5— yet re-cap- law enforcement and has not been person tal offense was committed a under tured. imprisonment. sentence of 17-10-30(b)(9): Georgia § 11. Statute The offense 15. Arizona—A.R.S.A. 13-703: The defendant in, by person custody of a murder committed or who committed the offense while in the of the 26 Boltz, Florida17). 389;

Colorado16, 847 at 806 Romano v. P.2d 324, 1125; v. P.2d Munson at 701.12(6) 21, O.S.1981, § uses the Title 1019, (Okl.Cr.1988), denied, 335 cert. 488 U.S. serving impris a sentence of phrase, “while (1989); Liles 109 S.Ct. ...” found no other state onment. haveWe (Okl.Cr.1985), v. 1031 wording. Appellant contends that uses this denied, 1164, 106 cert. U.S. S.Ct. serving” that the that the words “while mean (1986); VanWoundenberg v. L.Ed.2d 732 actually in “serv defendant was confinement cert. ing” his at the time he committed sentence Further, he con question. the offense in (1986). aggravator would that to extend this tends L.Ed.2d 395 overbroad, vague thereby mak it and render parole of as The addition life without argues He that crim ing it unconstitutional. sentencing option a does not create the need provide inal statutes sufficient notice must concerning appli law prior to case review person would that his that a reasonable know A aggravating cation this circumstance. of liability. subject to criminal or her conduct is finding aggravating does of an circumstance Maynard Cartwright, U.S. jury require not to the defen sentence 1853, 100L.Ed.2d 372 death, merely jury it dant to authorizes support argument, Appellant In of his option, parole to do the life so.- With without escapee out the time an points that from now has broader discretion not to tolled, escapes, his sentence is time towards to sentence defendant death. thus, “serving” he not his sentence. and is argument unpersuasive. find this to be We Next, Appellant that use of un- contends finding exempt To make such a would from testimony that he corroborated to establish application aggravator prisoners this failing continuing society threat and to enough escape. have fortuitous who been give requested accomplice corroboration Legislature intend to did not benefit one instructions were fundamental and reversible escapee. Logic you is an tells cannot who us Britten he was error. David testified that aggra- your benefit from acts and avoid the Thus, Appellant. crimes with involved two Therefore, proposition this is without vator. give it the instructions was error merit. corroboration, regarding accomplice unless Appellant’s propositions of error numbers other showed corroboration or con- evidence 26, 27, “continuing 29 concern the Here, tinuing threat. corroboration aggravator. Appellant threat” contends testimony Appellant, shown as well “Continuing aggravator Threat” Oklahoma’s proposition as This is with- other evidence. vague overbroad because it is not out merit. sufficiently nar- defined for the assignment Appel- thirtieth constitutionally permissible within lim- rowed challenges authority re- lant this Court’s He also that the of life its. contends addition reweigh ag- evaluate the death sentence and parole sentencing option without in the war- gravating against mitigating circumstances rants this of its reconsideration Court aggravating has where one factors concerning the prior application case law been This is with- declared unconstitutional. aggravating proposi- circumstance. This aggravators out all of the found merit since tion is without merit. are valid. consistently upheld court has thirty-one Appellant argues “continuing aggravator being spe threat” as cific, circumstances, vague, readily aggravating and that other than understandable. Corrections, (1991), ag Department state of a law enforce- the L.Ed.2d gravating court extended agency county city jail. to ment or or circumstance include those defen paroled. dants who had been l-103(6)(a): § 16. Colorado—C.R.S. 16-1 The 921.141(5)(a): § was crime committed while the defendant was 17. Florida —West’s F.S.A. imprisonment.” People capital felony by person "under v. was committed a under sentence of In Davis, 159, (Colo.1990), imprisonment placed commu- 180-182 cert. sentence of or on denied, nity control. U.S. provides guidance no 4. That the the Oklahoma statute murders were committed for first-degree purpose in prosecutors preventing a the lawful or restraint arrest prosecution. guidelines, the and murder case. Without these penalty, depends decision to seek the death 5. That the murder was committed while prosecutors, on the whims of the individual serving Mr. Duckett was a sentence of inevitably arbitrary capri- and leads to

which imprisonment. rejected argument This cious actions. eases, Finally, upon capital review of we Romano, recently in 847 P.2d at 391-92. find the sentence of death in this case is This is without merit. supported by the evidence. See Salazar thirty-two, Appellant In proposition chal- (Okl.Cr.1993); 852 P.2d 729 Pickens v. constitutionality lenges the of Title 21 O.S. (Okl.Cr.1993), 850 P.2d 328 cert. de 1981, 701.11, § being opposition as in to Arti- nied, 510 U.S. 114 S.Ct. 7, § cle 15 of the Oklahoma Constitution. (1994); L.Ed.2d 232 Fox v. O.S.1981, 701.11, § provides part in Title cert. death, jury if returns a verdict of “it designate writing statutory in ... shall the Judgments and Sentences are AFFIRMED. aggravating circumstance or circumstances unanimously beyond that it found a reason- CHAPEL, V.P.J., and LANE and 7, § Article 15 of the Oklahoma able doubt.” STRUBHAR, JJ., concur in result. part jury provides Constitution in that “in all trials, verdict, general the shall return a LUMPKIN, J., concurs. any in and no law force nor law hereinafter require enacted shall the Court to direct the LANE, Judge, concurring in result. findings particular questions to make I write to address the use of the demons- fact, discretion, may, but the Court in its tape, trative State Exhibit Number 142. special findings.” direct such ar- same Upon viewing, pro- it it is obvious that was Romano, rejected gument was raised and in duced to be introduced as evidence a trial. assignment 847 P.2d at 391-92. This of er- witness, depicts sponsoring It the Lt. Tom ror is of no merit. Bevel, narrating leading the viewer through the It crime scene. shows the wit- VI. MANDATORY SENTENCE demonstrating ness his theories toas how REVIEW acting the murder occurred out the Finally, charged by this Court is role of the At times killer. Bevel is asked (1) Legislature to determine: whether the questions by (presumably a voice off camera imposed sentence of death was under the Scott, operator). R. the camera It also passion, prejudice any influence of other graphic eloseups prior shows of the victim (2) arbitrary factor and whether the evidence corpse being removed from the scene supports jury’s statutory finding of the calling with Bevel attention to as- various aggravating circumstances found. body pects surrounding and the area. passion, prej- We are satisfied that neither tape I that the find introduction of the any arbitrary pres- udice nor other factor is unnecessary repeti- It be error. ent the record to undermine our confi- already tious. Bevel had testified as to the jury’s Ample dence verdict. evidence spatters blood and his theories use of (5) supports jury’s finding of the five diagrams overlays tape when the aggravating factors: short, nothing it introduced. added previously 1. That had been proceeding already that was not introduced felony involving convicted of a violence. time, by the same witness. At the same continuing 2. That was a threat presentation gore the blood and with society. running commentary by the witness contrib- nothing 3. That the murder of Howard was uted to the factual basis of the ease. John heinous, Instead, especially gruesome atrocious or it called cruel. attention outweighed the prejudicial Its value scenes.

probative value. opposed to the use of television

I am not

recordings in a trial under the as evidence There are times

proper circumstances.1 may that can they be the best evidence

when they introduced such as when are made

be They

simultaneously with the event. are person of a

also useful to show demeanor under which a confession is

circumstances

made.2

However, I not find the error in this do to cause reversal. Bevel was

case sufficient examination, for cross and the re-

available

maining evidence was sufficient overcome However, prop- tape.

the admission tape use of a television

er circumstances the may

in this manner be sufficient cause

reversal. It is so this ease.

STRUBHAR, Judge, concurring in results.

My that I concur in the re- vote reflects however, majority; I

sults reached

disagree analysis Appellant’s with the

thirteenth of error which he

alleges process was denied his due he sentencing

right personally address his

jury. non-testifying capital A in a defendant per- should be allowed to make a brief

case mercy. plea

sonal DIXON, Appellant,

Nita Jo DIXON, Appellee.

Kenneth

No. 84334. Oklahoma, Appeals

Court of

Division 3.No.

May 1996. (Okl.Cr. 1. 2. See Burke v. See Williams v. P.2d 989 1951). rt. 504 U.S. (1992) (Lane, ce dissenting). L.Ed.2d 565 J.

Case Details

Case Name: Duckett v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Oct 17, 1995

Citation: 919 P.2d 7

Docket Number: F-89-644

Court Abbreviation: Okla. Crim. App.