Fontenot v. State

Accordingly, respectfully I point ate in this case. the flash about the subcontractor struct dissent. product primer P-3100 rendered in the context of the unreasonably dangerous partic- active

manufacturer/distributor’s project and the ipation in the construction actually procedures the conditions under installation of the waterproofing used for addition Methodist Church First United 15, 1986. December majority Further, agree I with the do not FONTENOT, Appellant, Karl Allen & Electric Gas that Duane Oklahoma (Okla.1992) stands Company, 833 P.2d 284 Oklahoma, Appellee. The STATE of law that as a matter in an industrial product is used “where a No. F-88-571. job a supposedly skilled at his setting by one Appeals of Oklahoma. Criminal duty warn of dan has ‘no manufacturer task or which are creat gers inherent 8, 1994. June negligence of the contrac by oversight or ed Rehearing Denied and ” Petition for affirming employees.’ In fellow tor or Mandate Ordered Issued summary judgment, this Court trial court’s Sept. manufacturers, Shell and found Chevron, anticipate that a had no reason user, E, create a

knowledgeable & would OG by pumping compressed dangerous situation oil had from which the air into the switch drained, that tank. grind and then into Compa Electric v. Oklahoma Gas & Duane summary judgment ny, 833 P.2d at 287. case establishes Silicone record duty to review the Specialties, Inc. had a waterproofing and that installation manner knowledge failed installation due it had could This record to cold and wet weather. Specialties, finding that Silicone hazardous anticipated the Inc. should have danger of unreasonable and the situation in that situation when used Prime P-3100 injury plaintiffs. resulting to the and the proposition that a stands for the Duane liability claimant successful manufacturers’ have manufacturer could prove must that the use, danger in- particular foreseen the knowledge or in the use and the user’s volved danger knowledge and that lack of foresee- failure to warn of the manufacturer’s cause of the proximate able use was duty and Specialties, Inc.’s injury. Silicone unre- foreseeability disputed and remain are agree I with the Court fact issues. solved inappropri- Summary judgment is Appeals. Butner, Wewoka,

George trial counsel for appellant. Brown,

Cindy Appellate Indigent G.' Asst. Defender, Norman, ap- appellate counsel for pellant. Peterson, Atty., Dist. Ross

William Chris Evans, Ada, Attys., & Linda G. Asst. Dist. appellee. trial counsel Gen., Loving, Atty. B. A. Susan Diane Blalock, Gen., Atty. City, Asst. Oklahoma appellate appellee. counsel for

OPINION

CHAPEL, Judge: by Karl tried Allen Fontenot was Degree jury and convicted of First Malice (21 Aforethought O.S.Supp.1982, Murder (21 (Count 701.7) III), parole” without instruction Kidnapping O.S. not the “life § 741) (Count II) Robbery § with to which he is entitled.2 (21 Weapon O.S.Supp.1982, Dangerous surrounding The facts the abduction 801) (Count I), County Hughes § District Donna are set forth murder of CRF-88-43, Court, before the Case No. generally in Fontenot Powers, Judge. Donald E. District Honorable opinion, In that this Court twenty year prison sen- Fontenot received first set of convictions reversed Fontenot’s robbery conviction and ten tence for the present remanded for a new trial.3 The kidnapping year for the con- prison sentence appeal from the convictions obtained aggravating jury found three viction. The against during his second trial. circumstances and sentenced Any implicated appeal in this additional facts affirm the murder conviction. We death for in the discussion of those counts, will be set forth the murder all but must remand1 they propositions relate. resentencing to afford Fonte- to which conviction for after remanding "conviction.” Fontenot was convicted we are this case to trial 1. Because enacted, stage resentencing, provision and was thus entitled to the second errors court for VIII, DC, VII, X, parole propositions Fontenot raises in have his instructed on the life without XIII, XI, Florida, not be addressed. sentencing option. XIV and XVII will See Dobbert v. XV, Propositions (1977). XVI and XVIII raise both first U.S. 97 S.Ct. 53 L.Ed.2d 344 stage prop- Review of theses and second errors. failing sponte court erred in sua stage will be confined to the first errors ositions alleged. jury in with sec- instruct Fontenot’s accordance Legislature's procedural tion 701.9. The amend- provisions section 701.- ments to the remand Legislature "life 2. The enacted the Oklahoma section 701.9 10a did not obviate trial court’s possibility parole” option without the No sentencing error. O.S.Supp.1987, See 21 vember of 1987. Moreover, rejected argument we a similar Although §§ and 701.10. Fontenot com 701.9 Rehearing raised in its Petition for State date, prior at issue to this his mitted the offenses State, (Okl.Cr.1993) in v. 859 P.2d 517 Salazar conviction did not occur until second trial and (order denying petition rehearing). In re June of after the statute's enactment. 1988—well sponse claim that the amended to the State's circumstances, this Court's recent Under these rehearing section 701.10a warranted in Salazar's State, (Okl. opinions P.2d 729 in v. 852 Salazar case, apply we [section stated follows: "To State, Cr.1993) (Okl.Cr. and 852 P.2d 744 Hain deprive would him of a 701.10a] to Salazar sen 1993), require that case be remanded Fontenot's tencing option that this Court has stated was proceeding providing sentencing for a new him State, available to him in Wade v. (Okl.Cr. 1992), parole punishment option. with the without life State, 371, Allen v. 821 P.2d and request an instruc We note that Fontenot did not (Okl.Cr. 1991), and would result in harsher 376 parole. tion on life Salazar, however, As we stated in without penalty options, prohibi which would violate resulting error from in against imposing punishment tion a harsher range provide proper structions which fail to (Citations omitted). post an ex facto manner.” punishment is fundamental and cannot be his crime before but was Fontenot committed waived. parole provision tried after the life without be- argues Legislature has The dissent similarly came effective. He was therefore situ- effectively precluded applying this Court from Accordingly, ated to Salazar. Wade and Allen holdings to Fontenot's Hain and Salazar granted right to his sen- Fontenot the have opinions Shortly were handed case. down, after those parole op- tencer instructed on the life without Legislature amended the statute set- Legislature's tion. The fact that the amendment ting procedures forth the to be followed when to section 701.10a was enacted before rather capital case for resentenc- Court remands a opinion than after this Court rendered an remand, ing. may Upon the sentencer now im- deprive right. of this Fontenot's case cannot him pose "any sentence authorized law at the time of the crime...." 21 commission of originally Tommy 3.Fontenot and Ward were added). O.S.Supp.1993, (emphasis § 701.10a together kidnapping, robbery tried for the and amendment, The dissent claims this which Harraway. Court deter murder of Mrs. retroactive, expressly prohibits made this Court mined that the admission of Ward's confession granting from and relief under Hain Salazar during Fontenot's trial constituted reversible er all defendants whose cases are handed down convictions were reversed on identi ror. Ward's after its enactment. State, (Okl not, however, grounds 755 123 Legislature cal in Ward P.2d did amend 21 Cr.1988). 701.9, O.S.Supp.1987, clearly provides § . Both Ward and Fontenot were retried guilty separately. on all punishment degree Ward was also found that the for first murder shall trial, life, death, parole but received a and that three counts at his second life without punishment options upon his murder conviction. these are effective life sentence for

75 freely RELATING TO the confessor did not ISSUES decide to Fulminante, give the statement. Arizona v. JURY SELECTION 279, 1246, 113 499 U.S. 111 S.Ct. L.Ed.2d 302 eighteenth proposition, In his Fonte- (1991). totality Under of the circum deny judge not claims that the trial erred in approach, stances both the characteristics ing pretrial jury panel motion to have the the accused and the interroga details of the individually argues voir dired. He that the State, tion are considered. Turner v. 803 case, history large number of 1152, denied, (Okl.Cr.1990), P.2d 1158 cert. venirepersons subject pretrial publicity 1233, 2859, 111 U.S. 115 L.Ed.2d special scrutiny required capital and (1991), citing Schneckloth v. Busta cases merited individual voir dire. We dis monte, 218, 412 U.S. 93 S.Ct. agree. (1973). L.Ed.2d 854 consistently This Court has held that testimony Fontenot cites the of Dr. Sandra right there is no to individual voir dire. See Petrick, psychologist, a clinical and Dr. Joel (Okl.Cr. State, Trice v. 853 P.2d Dryer, psychiatrist, as evidence of his men- 1993); Douma v. 749 P.2d 1165 tal deficiencies. Dr. Petrick had interviewed (Okl.Cr.1988). grant Whether a motion 17, 1985, May Fontenot on for the limited resting for individual voir dire is a decision purpose determining whether he was com- judge’s within the trial sound discretion. See petent to stand trial.5 She concluded that he Trice, supra at 209. See also Brown v. During trial, was. the second which is the Fon- subject present appeal, defense coun- has tenot not demonstrated an abuse of dis questions sel asked Dr. Petrick about her Accordingly, proposition cretion. is de session with Fontenot. Based the in- nied. obtained, formation she had she could not opinion

offer a conclusive on whether Fonte- knowingly voluntarily could have ISSUES RELATING TO rights prior waived his Miranda to his con- GUILT/INNOCENCE fession. argues in his first questioned Defense counsel also Dr. Pe- voluntary that his confession was not trick about some additions she made her suppressed. should therefore have been He original report, initially in which she conclud- police improper claims that used competent ed Fontenot was to stand trial. interrogation techniques exploit coercive to competency her While determination was un- According his mental deficiencies. to Fonte- conditional, Petrick Dr. also mentioned that not, explicit rights of waiver Miranda4 might Fontenot need assistance in under- subsequent confession no than was more standing legal terminology.6 After the first produet police exploitation of his low August generated trial in Dr. Petrick capability. disagree. mental We supplemental competency report in re- sponse The ultimate test of the to appellate voluntari Fontenot’s then counsel. report ness of a confession is whether it is the stated in that She Fontenot had product essentially competent of an free and uncon to stand but added the stipulation choice strained its maker. See “that he receive assistance in the Crawford (Okl.Cr.1992), legal terminology.” area of Dr. Petrick also 1, 7, citing Malloy Hogan, supplemental report stated in this U.S. that Fon- (1964). 1489, 1493, 12 A implications L.Ed.2d 653 tenot did not understand the of a involuntary During confession is or coerced confession when he was arrested. trial, “totality of the circumstances” demonstrates the second Dr. Petrick testified that she Arizona, Fontenot, ap- 4. Miranda v. 384 U.S. 86 S.Ct. 6.When Dr. Petrick interviewed he (1966). parently appreciate 16 L.Ed.2d 694 did not understand and attorney's prosecution. district role in his He given prior to 5. Dr. Petrick evaluated Fontenot to the first also referred the statement he had to police trial. as a “confessment.'' Agent Rogers Captain to be Dennis Smith these additions did not consider during interrogation. They report, merely- present were original in but changes her videotaping already acknowledged that the did on conclusions each elaborations detailed until almost two hours after not commence reached. police entered the station. Fontenot had May Dryer Fontenot on Dr. Joel evaluated Rogers Both and Smith also testified that trial, 23, 1988, just prior the second at they during period, hour time did two request. Dryer ulti- Dr. defense counsel’s supply any Fontenot with of the informa- suffered mately concluded that Fontenot surrounding tion the death of Mrs. Harra- disorder,” but “post-traumatic from stress Tommy way, other than to tell Fontenot that Harraway. not kill Donna that he did implicated him. Ward had confessed and part in on his review of conclusion was based Rogers ever and Smith denied threaten- report by a psychological written doctor ing coercing any in Fontenot manner. analyzed he six had Fontenot when was who fully appreciate years Dryer also obtained informa- Fontenot claims that old. Dr. degree police mother. Fontenot wit- misconduct which he tion about Fontenot’s subjected, apparently responsible felt for his was we must consider three other nessed and Dryer, separate improper According to Dr. instances of but related mother’s death. Dryer police people Dr. conclud- behavior toward other involved Fontenot wanted to die. wish, First, guilt and death cou- the case. Fontenot offers the cir- ed that Fontenot’s Tommy surrounding con- pled his loneliness and desire for atten- cumstances Ward’s with However, tion, falsely allegedly to confess to fession. the evidence caused Harraway. supporting Donna these claims is contained in the the murder of trial, transcripts from the first which is not testimony Fontenot claims that Drs. at issue is no here. Because there Dryer, testimony of witness Petrick and sup- in the record now before this Court to prone exaggera that was es who stated claims, port particular these we will not ad- tion, twenty year and the fact that he was a dress them. education, together grade a twelfth old with incapable argument po- support his claim that he was As his second misconduct, giving knowing voluntary points confession. lice the man- police allegedly interrogated if we to find Fontenot’s mental ner in which the Even were significant suspect condition to be a factor former and defendant Odell Tits- calculation, dispositive during in voluntariness worth.7 Fontenot claims that Tits- sessions, quiry police interrogation contribut four is whether misconduct worth’s three or Captain to the confession. See v. Con Smith and Detective Mike Baskin ed Colorado 157, 164, 515, 520, nelly, repeatedly him 479 U.S. 107 S.Ct. fed facts about the (1986). However, during prelimi- L.Ed.2d 473 therefore turn to case. asked We when nary allegations improper interroga hearing Fontenot’s whether he had learned facts officers, techniques. tion about the ease from these Titsworth initially replied really.” P.Hrg.Tr. “Not 809. warnings An officer read the Miranda himself, stating Titsworth later contradicted beginning of Fontenot at the his October that the officers had told him facts the about 1984, videotaped confession. Fontenot stat- already crimes which he did not know. rights agreed ed that he understood his and Rogers Finally, police. Agent Gary to talk to the Fontenot describes two instances giving him police then asked Fontenot he was the misconduct directed toward af- freely voluntarily; argues and ter that inci- statement Fontenot his confession and these stated that he was. dents are indicative of their mistreatment of ed, confessions, however, police 7. their Ward told when the determined In that police party days Harraway’s disappear- that third Odell Titsworth was the several before Mrs. ance, spiral Harraway’s debilitating involved in Mrs. abduction and ulti- he had suffered a frac- They instigated the would rendered mate death. claimed Titsworth ture of arm which have him eventually incapable helping the to abduct and murder her. crimes. Titsworth was exonerat- during proposition, in- In him the confession.8 The first his second Fonte- Captain argues Smith testified volved Titsworth. that was the evidence insufficient confession, days a few after Fontenot’s to sustain his convictions. He first claims his cell to see if he took Titsworth Fontenot’s competent confession cannot considered be there, identify could him. While evidence, independently since the failed State asked Titsworth if would like to Smith corpus to establish the delicti9 of the crimes Fontenot’s cell and “settle the score.” enter charged. Fontenot also claims his confession Titsworth was never fact allowed to enter support was unreliable and thus cannot his cell. the convictions. He maintains that because the Fontenot, present independent The second incident involved failed to State evidence confession, and Baskin. admitted Smith Smith that af- to corroborate his it was rendered confession, the ter he and Detective Baskin untrustworthy. a sack of human

took bones Fontenot’s cell persuade effort in an Fontenot to tell them Although relatively simple ques body Harraway’s Mrs. was where located. tion is whether confession Fontenot’s improper admitted that was an Baskin this sufficiently support reliable to his convic tactic, attorney prose- and that the district tions, prior opinions this has ob cuting pleased the ease had not been with the proper resolving scured method maneuver. previously together issue. We have utilized separate contradictory analyses Some of these incidents are disturb two However, they ing. addressing occurred either before when whether a con defendant’s during or after but not Fontenot’s confession. competent fession was a convic Fontenot has failed to cite and our research First, tion. we determined whether any not uncovered which holds that has case substantial, provided independent State evi involuntary can be confession found corpus delicti dence of the crime police directed toward basis misconduct charged. Then, we determined whether the confessor, someone other than the or direct provided independent evidence State sub ed toward the confessor after the statement stantially corroborating the confession. See given. at issue was (Okl.Cr. Thornburgh v. 1991); 384, 397 Williamson v. presented po- Fontenot has no evidence of — cert, (Okl.Cr.1991), denied, -, U.S. him lice misconduct directed toward either (1992). L.Ed.2d 308 If prior just during to or confession. Even presents independent the State evidence of intelligent very per- if Fontenot was not corpus unstable, delicti as well additional cor mentally haps there is no evidence evidence, roborating confession is police exploited possible these weak- competent deemed which a confessing. and coerced him into Af- nesses relevant, may reject all conviction be based. We now ter careful consideration of sur- corpus circumstances, analysis rounding find that delicti line of and reaffirm we Fonte- voluntarily given. prior adoption Court’s of the standard not’s confession was requires only sup- a confession proposition is denied. Again, extensively particular [the] Fontenot cites to the tran- mission some one of offense Ward, scripts charged.” from the first We will limit our trial. State ex rel. Peterson trial, generated by to evidence the second review P.2d The issue in prove which is now at issue before this Court. State case is not whether the must corpus charged delicti crime in order to of a by proving obtain a obvious that conviction. It is Corpus body delicti means or substance of 9. the beyond a reasonable doubt the elements of a charged. crime the 27 Wharton’s Criminal Law crime, given automatically proves the State (14th 1978). ed. of two 142 It consists elements: Rather, corpus delicti. the issue in this case is criminally prohibited injury criminally and a corpus charged whether the crime delicti prohibited act as its cause. Court has con- proven independent must be evidence of a sistently restated this as "the substan- definition confession, judicial necessary defendant's extra before that facts to tial fundamental fact or crime, may confession into evidence for the commission of a and means admitted when offense, applied any particular to the actual com- to consider.

78 disappeared. day she a man on the evidence with independent by “substantial ported old, gray to an man take her They ... trust- saw this [its] to establish would tend ” States, had Chevy pick-up, which Fontenot Opper primered .... v. United worthiness 158, 164, 84, 93, L.Ed. from the They 99 saw her enter 75 S.Ct. 348 U.S. described. (1954), side, following just v. adopted in Jones man passenger with the — 63, 68 P.2d had described. as Fontenot apply Opper stan Federal Courts Third, that he agent testified an insurance fact, the United States exclusively. In dard old, Chevy gray primered an had insured has Appeals for the Seventh Circuit eodefendant its truck for owner —former corpus longer no delicti rule that “the held knew both A witness who Ward’s brother. it system, ...” because federal exists the two testified that and Fontenot Ward original purpose. United to serve its failed had seen them and that he were friends (7th 932, Cir. Kerley, 838 F.2d v. States primered gray in a riding together around 1988). competence of a de Accordingly, the Fourth, had witness who Chevy pick-up. one upon the conditioned confession is fendant’s (the McAnally’s convenience store “ entered in having provided ‘substantial government abducted) Harraway was which Mrs. from to es which would tend dependent evidence he just testified that the abduction before Id. at trustworthiness....’” [its] tablish generally matching Fonte- two men had seen 93, 75 supra, 348 U.S. at quoting Opper, descriptions inside not’s and Ward’s at 164. old, driving an men were store. The two present case did in the The State pick-up. of the men gray primered One sufficient, in evidence provide corroborative to wanted the witness leave. acted as to show confession dependent of Fontenot’s competence.10 just and thus its Fifth, its trustworthiness who worked another witness First, extrajudicial, post- Fontenot made two road at anoth- of a mile down the one-fourth confessing to in addition crime statements having testified about er convenience store that he knew police. He told a friend meeting and Fonte- two men Ward’s seen specifi facts about the descriptions in store earlier on the abduction — not’s her And, identity. while cally perpetrator’s Harraway’s She evening of Mrs. abduction. county jail, a in the awaiting trial he was driving they as red described the truck were saying “I knew him fellow inmate overheard gray primered. The two resembled caught.” Tr. II 8.11 get we’d They watching were Fontenot and Ward. they uncomfortable. When her and she felt Second, Fontenot’s ac- in accordance with they p.m., or 9:00 headed abduction, left at around 8:30 saw three witnesses count McAnally’s. toward Harraway leaving convenience store Mrs. nothing in that it de independent leaves to be determined evidence We State’s note participation elements intentional need not have established the essential clares defendant's kidnapping, act, charged crimes of of each of the robbery of such and it must be a statement criminal settled, well ... guilt and murder: "It is than that of nature that no other inference proving there need not be corroborative may be drawn therefrom.” Brewer every before an admission element of the offense omitted). (Okl.Cr.1966) (citation P.2d United States can be received in evidence.” prove only tended to Fontenot's two admissions (11th Davanzo, Cir. 1100-01 699 F.2d supported guilt; they alone could not have his 1983). reemphasize, evi the corroborative To Thus, guilt. did not rise these admissions sufficiently dence substantial had to have been require inde confessions and did not the level of of Fontenot's state establish the trustworthiness pendent their introduction corroboration before Opper, supra. See ment. jury. Opper, supra, 348 U.S. at 89- to the But see (“[A]n accused’s admis 75 S.Ct. at 162-63 did not themselves 11. Fontenot’s two admissions crime, of essential facts or elements sions being prior require independent corroboration crime, subsequent are of the same charac jury. is some- introduced to the “An 'admission' corroboration [thus] as confessions and ter thing an ac- less than a confession and is but required.”). These two admissions should be knowledgment of some fact or circumstance part may properly of the State's be considered to authorize convic- which in itself is insufficient tending independent to establish the only proof of tion and which tends toward the Fontenot’s confession. guilt; trustworthiness of whereas a 'confession' the ultimate fact of death,

Sixth, McAnally’s manager the testified had been but stabbed to a bullet had from the store. her that been taken wound was found in skull and re- her $167.00 they in his that Fontenot stated confession mains did not that indicate she had been during robbery. stabbed; about had taken body $150.00 her not was found where Seventh, Harraway be; blouse Mrs. was body it said would signs her showed no evening on the wearing burned, of her abduction was having whereas Fontenot up the lace buttoned front and had around they and, body; said had set to her fire Odell said in the collar cuffs. Fontenot his Titsworth, originally impli- whom Fontenot that confession she had worn blouse with confession, ultimately cated his was exon- “ruffles” around the sleeves and collar and erated.

elastic in the sleeves. While these inconsistencies were Eighth, the shoes found Mrs. Harra- with no by inconsequential, means we do not be soft-soled, way’s were canvas shoes. remains they lieve rendered Fontenot’s confession un Harraway’s Mrs. husband had characterized trustworthy incompetent. only However, these shoes as “tennis” shoes. calculating means of the trustworthiness of gave description a more Fontenot accurate is Fontenot’s statement to all the review specifically them. He Mrs. Harra- described independent other evidence and determine shoes, way’s stating shoes as “soft-soled” that sufficiently whether it to corroborative they were tennis shoes.12 suggest guilt that Fontenot’s admission of Ninth, generally, and most there was con- require was truthful. This standard does not testimony describing siderable Mrs. Harra- that each material charged element way’s marriage; her life: somewhat recent by offenses be indepen corroborated facts eager anticipation teaching degree; her of a confession13, dent of the or that there be no contentment; and, happiness her overall inconsistencies between whatsoever the facts job responsibilities. her dedication her proven and the related in facts the confess testimony corroborated Fontenot’s ion.14 Unless inconsistencies between the Harraway statement Mrs. did not will- confession and the other evidence so over ingly MeAnally’s, leave but was abducted. whelm the similarities the confession is untrustworthy, rendered it remains within first corroborating attacks these province determine wheth grounds facts on the much of what he the confession v. er is credible. See Crane police simply regurgitation said to the 683, 688, 2142, Kentucky, they 476 U.S. 106 S.Ct. already had what “fed” him. How- (1986), ever, citing 90 L.Ed.2d 636 established in Jackson we the discussion of the Denno, U.S. first that there was no evidence (1964), (“[(Questions L.Ed.2d 908 allegation. of credibili confession, strength ty, cast whether of a or of a tries to doubt on the of the witness corroborating jury,_”). pointing facts to the are See also follow- Maxwell (Okl.Cr.1987) (not ing 1165, 1169 inconsistencies between confession ing sufficiency and the evidence: he Mrs. that in reviewing said During argument, significantly 12. oral held before this Court relevant to and related to the com- 7, 1993, appellate mission of the or offenses. on December Fontenot's coun- offense sel stated that information about Mrs. Harra- Williamson, supra, 14.In 812 P.2d at way’s public prior had shoes not been made Court stated that "the essential facts were cor- his confession. despite roborated the inconsistencies between (cid:127)the State’s evidence and defendant's confes- Davanzo, supra 13. See n. We must also men- added). (Emphasis making sion.” When holding our tion that does not conflict with legal determination whether confession has OTJJI-CR-814. See n. 15. The "material sufficiently by independent infra been idence, corroborated ev- necessary fact and basic or facts for the commis- however, any we not believe that do fact charged” sion of the offense need not include the necessarily any is Rather, more "essential” than other. Rather, provid- elements crime. facts be on the focus should overall consis- independent ed discrepancies in the confession which the evi- tencies the confes- between and/or presented. dence must corroborate must be facts which are sion and the other evidence charged. Rawlings See doubt of the crimes appeal, appellate court must an

evidence 160 (Okl.Cr.1987). 153, and credibili- accept all reasonable inferences 740 P.2d See support the decision ty that tend to Crawford, choices P.2d at supra, 840 fact.). the trier of of summarize, To we now hold that confession, reviewing Fontenot’s the After competent an is whether accused’s confession and corroborative evidence the independent depends upon a not conviction inconsistencies, find that his con- alleged we corpus of the whether substantial evidence trustworthy. Accordingly, it was was fession introduced, the has been delicti15 of crime jury competent evidence which the was enti- upon whether confession is trustwor but the against The consider him. was tled to thy. may considered trust A confession be between Fon- of the inconsistencies informed substantial, worthy by if it is corroborated confession and the other evidence tenot’s independent evidence. Under OMahoma presented, and it to believe Fontenot chose law, may statutory only the fact which not be participated that he stated the when proven by properly an admitted accused’s subsequent robbery Harraway’s in Mrs. and is the that a death occurred.16 confession fact A trier and murder. rational abduction case, present In the the evidence the could have fact faced with this evidence beyond presented independent a of Fontenot’s guilty reasonable State found requirement that and must be altered. OUJI-CR-815 reads as 15. Our decision abolish corpus charged follows: delicti of crime must a be may [any person No convicted of homicide] be substantially independently proven and before an person both the death of the unless fact of the compe- may confession be considered accused’s allegedly killed the fact that death and O.S.1981, his/her not with 21 tent evidence does conflict person by caused of another the conduct 693, necessary § "Proof to conviction murder independent are established as facts and be- manslaughter.” that Section 693 states yond proof a Such reasonable doubt. must person can be of murder or [n]o convicted wholly indepen- is consist evidence which suicide, manslaughter, aiding unless by or of any [confession] dent of made the defen- however, dants). evidence, person alleged may have been killed death of the Such cir- be proof killing by the fact of the the accused are cumstantial and need not include of the and identity independent beyond person of the caused the as who death. each established facts added). portion (Emphasis unhighlighted doubt. reasonable the instruction is verbatim section 693 only almost We believe this section was intended highlighted portion and shall remain as is. The prohibit using State from a defendant's con- is incorrect and must be excised. prove that a death occurred. See fession to State Additionally, OUJI-CR-814 shall henceforth be Gibson, (1938) (in N.D. 284 N.W. 209 which a administered in homicide cases in defen- response to claim that section 693 defendant’s given extrajudicial properly dant has admitted using prototype prohibited the State from portion pertinent confession. The in- victim, prove confession to that he killed the struction reads as follows: only the victim's court held fact of the death justify A confession alone does not corroborated, conviction by proof supplied by be established direct must is, unless it is confirmed confession). independent "The supported by other evidence materi- killing” proven as fact of the which must be an necessary al and basic facts fact or for doubt, independent beyond fact a reasonable charged. commission of the offense Unless proven may indeed be a defendant's own made, confession, you find corrob- properly admitted confession. orated, you disregard must it. mistakenly has construed This Court section overly interpreta- Because of this Court’s broad "super” corpus requiring 693 as a delicti rule caption tion of section before and notes corpus homicide be [a] "that delicti of estab judges after OUJI-CR-814 admonish trial not to independent of lished the confession or statement particular instruction in administer homi- defendant, beyond by the a reasonable doubt.” Rather, judges cases. are told cide to ad- Ward, ex rel. Peterson v. State OUJI-CR-815, minister the instruction outlined (Okl.Cr.1985) added). (emphasis n. 1 That preceding paragraphs. Again, OUJI-CR- interpretation of section 693 is too broad. Inter both the 815 must altered to reflect actual estingly, consistently applied it has language today’s section 693 decision Thornburgh, supra, homicide cases. See adopting extrajudicial the trustworthiness test (The prosecution required P.2d at 187 “is not confessions. Both OUJI-CR-815 altered and prove corpus beyond a reasonable delicti OUJI-CR-814 must be administered from now independent of doubt a defendant’s confession.” extrajudi- on in all cases in which a defendant's added). (Emphasis properly cial confession has been admitted. misconstrued, Because section 693 has been O.S.1981, 693, supra § n. 15. instruction it is incorrect 16. See 21 based Further, sufficiently placed of was corroborative defense counsel confession trustworthy. emphasis render it The on connection the confession to between Ward’s discovery Harraway’s pro- and begin of remains Fontenot’s confessions. At the Mrs. proof ning of independent Captain of her death as re- of vided cross-examination Smith by prior quired Accordingly, complained testimony, section 693. the evi- and to the of Smith, properly presented at trial was suffi- defense counsel to “[Y]ou dence said had Tommy Ward, to Fontenot’s convictions for information that connected cient Titsworth, robbery, kidnapping you and Fonte- Karl Fontenot and Odell murder. did Ill, proposition not’s second is denied. not?” Tr. 100. Defense counsel then Agent Rogers asked Smith what had said to in argues proposition Fontenot his third Fontenot in to stop order convince him to in that an effort to corroborate confes- denying Harraway his involvement in the sion, testimony describing the State elicited response, abduction. In Smith testified that key portions Tommy of confession Ward’s Rogers “Karl, had already said we have which had been ruled unreliable and inadmis- Tommy to and talked we have confession a State, by this sible Fontenot Ill, from him.” 104. Tr. These connections supra. Fontenot also claims that some of between Ward’s Fontenot’s statements testimony constituted hear- inadmissible clearly by were or offered invited defense say the introduction of which violated his counsel. Fontenot has no basis right Amendment to Sixth confront witnesses complain alleged to of these errors. See against separately him. will review each We (Okl.Cr.1989). Price v. portion testimony of contested corre- See Penn v. sponding against claims them. First, response to defense coun portion testimony second Fontenot question asking sel’s to Detective Smith Captain attacks concerns Smith’s statement given description whether he had been a prior confession, that to Fontenot’s he told Harraway’s prior interviewing Mrs. blouse to police that spoken had with Fontenot, replied Tommy Smith “From Ward and had a obtained confession from III, argues Tr. Ward.” that responded him. Smith later to defense responsive Smith’s answer was not to the by “Tommy question stating said that.” Ward emphasize question, and calculated was Smith, Finally, again responding to defense implicated the fact that Ward had questions, referred the “confessions” and prejudice Fontenot. Fontenot claims the “they Again, what in the said” confessions. by reemphasized caused this statement was transcript our review of the indicates all of by the State on redirect examination. At responses encouraged these elicited were time, Smith testified that because both by defense counsel. given Ward and Fontenot had the same de scription of the blouse Mrs. had portion The third and final of testi wearing, description the blouse became mony prejudicial Fontenot claims in was important piece inculpatory an evidence Agent Rogers’s descriptions volves several against Fontenot. actions he took as result of his interview with Ward. In accordance with defense note that We first none Ward’s objection, Rogers counsel’s never related actually placed inadmissible statements were Rather, anything had said to him. Ward Thus, jury. ruling before the this Court’s as a described what he did result Fontenot, And, supra, violated. of their conversation. testimony hearsay, can not be considered statement, Rogers which is defined “a other than made three calls to Bas- Detective testifying one made the declarant while at kin. He search for first directed Baskin to hearing, the trial or Harraway’s offered in remains in around Mrs. an area asserted; call, prove power plant. Rogers the truth local In a matter second O.S.1981, 2801(3) § -” (emphasis add told Baskin to for an house look incinerated ed). property surrounding plant. power on the in his fourth try to locate a Fontenot claims

Lastly, Rogers told Baskin to ground in the his convictions must be reversed be- bunker hole concrete prejudicial crimes evidence was property. cause other against him. In his improperly admitted testimony Rogers’s claims de Fontenot confession, having to admitted Fontenot of his inter scribing what he did as a result raped Harraway. Mrs. Both before and dur- inadmissible with Ward constituted view trial, vigorously side ing the second each testimony, hearsay. attacking In this howev respective positions on the argued their issue hearsay er, that the rule Fontenot concedes rape the to the should of whether references testifying from preclude not witness does videotaped from the confession. be deleted result actions he or took as a the she about judge ultimately that ruled Fonte- The party. awith third See Greer a conversation concerning rape statements the were not’s (Okl.Cr.1988). State, P.2d v. gestae exception to admissible under the res is that thrust of Fontenot’s claim this The prohibition against the admission other testimony conclusively connected Fonte- so crimes evidence. apprise to and Ward’s confessions as not’s inculpated jury that Ward had in fact the rape Fontenot’s attack the evidence According to Fontenot as well himself. language primarily based from this Fontenot, testimony the admission of this Peterson, opinion in ex rel. Court’s State Washington ruling this Court’s violated originally were supra. Fontenot and Ward We dis charged prior having to first trial with the agree. Harraway. rape raped Mrs. Each count was Washington, police spoken had In officer hearing preliminary magis the dismissed eyewitness. During to an direct examination trate, appealed ruling. In and the State trial, prosecutor the asked the officer what at Peterson, ex rel. this Court State reviewed to the infor- response actions he had taken in rape the the State’s claim and reinstated eyewitness him. given had mation charges, concluding that the State had met replied having spoken that to officer after the at preliminary hearing burden. Id. its investigation eyewitness, he directed his to- However, this on to Court then went caution the defendant. This held that ward strengthen that if not the State it could its error, testimony al- this officer’s constituted counts, rape charges case on the the should ultimately though it was ruled harmless. We to dismissed “all [that references may tell that while a witness the reasoned ... should be deleted from the confessions.” crime] response to infor- about actions taken Id. nontestifying received from a mation third testimony party, such is rendered inadmissi- first note this Court’s decision in We “finger effectively points it ble when Peterson, bearing supra, ex rel. has no State Id, at at the defendant. 309-10. accusation” cautioning us. In upon the issue now before words, may indirectly not In other State rape all references State delete hearsay accomplish directly what rule charges dropped, were that offense forbids. specific addressing were not we issue here, rape raised i.e. whether testimony point not Detective Smith’s did gestae part the res of the constituted finger of at Fontenot and accusation did crimes for which and Fontenot were on Ward not, therefore, type constitute the of evidence legal arguments against for and trial. The Washington. talking criticized in After with part rape admission of the evidence as of the Ward, search Smith ordered BasMns to gestae presented had in that res not been area for certain Mrs. remains. Harrawa/s appeal, Rule Six and we did consider body might He described where her have Accordingly, them. we will now address hardly placed. testimony sug- Smith’s argument inculpated Fontenot’s “other crimes” on its gested to the had Ward Fontenot. This is denied. merits. eventually dropped. rape charges against Ward and tenot were

17. The both Fon-

«3 reviewing degree After Fontenot’s “other right murder violated19 his to due contention, requested. crimes” we that the de process. conclude Both instructions were scription Harraway’s rape Accordingly, any alleged preserved of Mrs. contained error was videotaped properly confession was for review. gestae part admitted as of the res confession, In his pri- stated charged helped offenses. The evidence to committing against the offenses Mrs. transaction,” “complete picture a full Harraway, “pot,” “got- he had smoked some present properly and was introduced high,” drinking ten and had been “some.” jury “enough facts to the full understand argues judge that once the trial sequence of events.” Johnson reliable, ruled his confession all the informa- (Okl.Cr.1988) 838, (Parks, J., Spe P.2d 840 tion contained in that to confession had have cially evidence, Concurring). Without Accordingly, truthful. been considered the leading of Fontenot’s account the facts to the judge trial have should considered Fontenot’s Harraway murder of Mrs. would have been descriptions pre-crime of cognitive his state “Inexplicable gaps” nonsensical. would have conclusively supported to be evidence which jury left' the a picture without clear the voluntary a intoxication defense. We dis- during periods. events those time See Du agree. State, (Okl.Cr. nagan 102, 765 104 v. P.2d 1988). State, 22, See also Carter v. 698 P.2d Fontenot was to an in entitled (Okl.Cr.1985). 25 voluntary struction the defense of intoxi only cation was there sufficient evidence of Further, probative the value of this impairment “to raise reasonable doubt as outweighed by danger evidence was not the ability requisite to his form to the criminal O.S.1981, prejudice. § of unfair 12 See degree intent” to commit first murder. Cal Although rape por account Fontenot’s of the (Okl.Cr. State, 819, v. houn P.2d 820 822 trayed callous, omitting him as cruel and 1991). State, 676, See also v. P.2d Sellers 809 might jury have left the with the — (Okl.Cr.1991), denied, 686-87 cert. U.S. impression more damaging that he had com (1991). -, 310, 112 S.Ct. 116 252 L.Ed.2d absolutely mitted the murder for no reason. evidence, supported by voluntary If the in portions The of Fontenot’s confession in negate may toxication to kill” “intent participation he describes his in the degree mens rea element of first murder. raping part of Mrs. constituted State, (Okl Stanley 946, See v. 762 P.2d 949 gestae charged the res of the offenses and .Cr.1988), State, citing v. 513 Williams P.2d properly was admitted.18 This 335 denied. In proposition, his fifth Fontenot claims Fontenot did to drink While confess that ing marijuana the trial court’s failure instruct liquor smotóng to some some voluntary on the defense of prior abducting Harraway, intoxication to Mrs. this evi and on the included lesser offense second dence did not as to raise reasonable doubt rape non-capital degree 18. Fontenot also claims that even if the offense second murder vio- part gestae evidence constituted of the res of die Supreme holding lated the United States Court's 625, offenses, charged it did not meet the "clear and Alabama, in Beck v. 2382, 447 100 U.S. convincing” proof required by level or Burks v. (1980), 65 392 L.Ed.2d as reaffirmed in State, (Okl.Cr.1979), 771 594 P.2d reversed on Arizona, 624, 2491, Schad v. 501 U.S. 111 S.Ct. State, 922, grounds, other 772 P.2d Jones 925 (1991). Beck, Supreme 115 L.Ed.2d In 555 (Okl.Cr. 1989), independent because there was no cases, capital in concluded that defen- corpus rape. evidence of delicti How constitutionally dant is entitled to an instruction ever, requirements apply none of the Burks to res lesser-included, noncapital on a offense where State, gestae evidence. See Dean v. the evidence would offense. lesser (Okl.Cr.1988); 1356 Duvall impli- We note that neither Beck nor Schad were (Okl.Cr.1989). Accordingly, P.2d we case, present cated in the since the did in need not determine whether the evidence of the noncapital fact receive an on the of- rape instruction convincing." was “clear and manslaugh- degree passion fense of first heat of argues 19. Fontenot that the trial court's failure ter. requested to administer his instruction on the for a conviction part] relies ability [in to Mil her. He The State to form the intent his In order to any circumstantial evidence. judgment stated his never upon circum- conviction of a crime by alcohol or warrant way impaired having drunk evidence, necessary fact each marijuana, stantial that his actions were smoked or defendant(s) guilt of must be prove the way impaired mental any by caused his beyond a rea- Further, the evidence gaps no established there were state. necessary doubt. All facts sonable suggest of what occurred account with each proof must consistent during such the events might dazed have guilt and with conclusion Harraway’s See Cal other leading to Mrs. death. It is not neces- houn, state seeks establish. supra, at 822. also Banks v. See proven sary 1294 (Okl.Cr.1991), ex- circumstances cert. P.2d — any possi- every theory negate denied, -, clude U.S. 112 S.Ct. (1992). bility guilty, than but judge [a]ll other did not L.Ed.2d 787 circumstances, together, taken refusing administer facts his discretion in abuse any must be inconsistent with reasonable requested voluntary intoxication Fontenot’s theory or of a defendant’s inno- conclusion instruction.20 defense circumstances, All facts and

cence. your claims the trial together, Fontenot also sat- taken must establish defendant(s) in refusing guilt to administer his court erred the the be- isfaction of offense of requested instruction on the lesser yond a doubt. reasonable degree He was entitled a second murder. argues the 182. Fontenot trial O.R. only if included offense instruction the lesser jury phrase the court’s additional allowed support it. See was sufficient to evidence discrepancies the in the State’s evi- discount (Okl.Cr State, 1363, Boyd 839 1367 v. P.2d dence, interpret- jury and that the could have .1992). State, 807 See also Williams v. P.2d authorizing it as his conviction even the ed (OM.Cr.1991). 271, Apart from 274-75 the negated guilt. The State ar- evidence his intoxication, Fontenot alleged evidence of gues correctly that the modified instruction evidentiary justification for provides no the applicable the law and was therefore stated degree We have murder instruction. second proper. already not suffi determined that there was jury a Generally speaMng, when voluntary support a intoxi cient evidence subject, must be instructed on a certain the Accordingly, there cation instruction. uniform “shall be used relevant instruction under Fontenot’s the not sufficient evidence it does unless the court determines that not degree the murder ory to second State, accurately state Palmer v. the law.” proposition is denied. instruction. 404, (Okl.Cr.1990), citing 408 12 788 P.2d O.S.1991, original). § argues (emphasis 577.2 in in his sixth rule, however, general Failure to follow this that the trial court committed reversible er- version not warrant automatic reversal. See administering in a modified of does ror State, (Okl 142, OUJI-CR-804, 144 requested had Smallwood 763 P.2d when he the .Cr.1988). Rather, overriding concern on version instruction. The the unmodified of that administered, at highlight- appeal is whether the instruction issue with the instruction fairly applicable accurately addi- and stated the portion indicating the trial court’s ed State, supra, phrase, follows: law. Id. See Sellers v. tional reads as take important to in the the defendant to It is note that the trial court did existed mind of 20. life. include human External circumstances requested one of instruc- administer Fontenot’s words, conduct, motive, demeanor, all and oth- jury to consider the tions which allowed the with a homicidal er circumstances connected Harraway’s surrounding circumstances Mrs. act. determining death in whether he had formed the Although jury did not Fontenot’s re- O.R. requisite intent to kill her. That instruction instruction, voluntary ceive the intoxication the reads as follows: above-quoted allowed it to consider instruction surrounding surrounding external circumstances the all circumstances the homicidal act requisite may determining of a be consid- the in- commission homicidal act whether he had finding kill. deliberate intent tent to ered in whether or not 85 Even if was commit- In the P.2d at 685. error comment which was met ted, contemporaneous objection, prose is not er- required reversal unless such with miscarriage justice in a cutor referred to ror “resulted one the books of the particular Bible. He said constituted a substantial violation of a consti- book State, statutory right.” Bible states theré is a time to live tutional or Brown v. and time 1355, die, (Okl.Cr.1989), 777 P.2d 20 to that God citing did intend for Mrs. O.S.1991, Harraway § to die on March and 3001.1. Fontenot Ward decided she would die on modify Fontenot concedes the trial court’s day. Closing argument during a crimi ing phrase language mirrors this Court’s nal should not include biblical referenc State, opinions. several See R.D.O. v. though prosecutor’s es. Even mention of (Okl.Cr.1987); P.2d Banks present improper, the Bible case was (Okl.Cr.1986). He claims question appeal is whether com appropriate appellate is the review stan deprived right ment to a fair dard, incorrect, it confusing but that trial. See Pickens v. prejudicially misleading when included in a prosecutor spe While did disagree. instruction. We cifically passages, refer to biblical did not encourage to follow biblical stan practice While better and safer dards rather than the Court’s instructions. would have been to administer the uniform Rather, passage he used at the biblical issue written, instruction as the trial court’s addi emphasize what showed: that phrase tional rendered the instruction nei Mrs. died at the hands human prejudicial. ther erroneous nor The uniform beings. light In of the substantial evidence portion of the instruction administered cor relatively guilt nature of innocuous rectly informed the that the circumstan comment, this it that cannot be said against tial evidence Fontenot would prosecutor’s deprived to the reference Bible only a conviction it found were to be incon of right his to a fair trial. This any theory sistent with reasonable his of proposition is denied. innocence. The trial court’s additional phrase merely explained in to ISSUES TO INEFFECTIVE RELATING standard, i.e., rely verse of that this it could ASSISTANCE OF COUNSEL on the circumstantial evidence for a convic proposi- Fontenot claims in his sixteenth tion even if such failed evidence to exclude tion that ineffective assistance of counsel de- possibilities all other guilt. than Fontenot’s right nied him his a fair to trial. Fontenot proposition is denied. argues that defense at failed to counsel trial investigate issues central to his case. He proposition, In his fifteenth Fonte- attorney properly also claims his failed to prosecutorial not claims that misconduct dur utilize available evidence that would have ing argument closing constituted fundamen strengthened his defense. tal, error. reversible Fontenot claims that prosecutor improper made six alleges comments Fontenot first there evidence during stage arguments. closing gray primered first Five that the truck he and Ward objection of allegedly these comments received no used to and abduct Mrs. did only. belong will be for During reviewed fundamental error not to Fon- Ward’s brother. Trice, trial, supra, agent See 853 at 214. P.2d See also tenot’s an insurance that testified State, (Okl. Huntley v. 750 P.2d 1136 insured a truck he had for Ward’s brother Cr.1988). primered gray Our review of these five that matched comments truck’s de- trial, reveals no to scription. During error went the founda Ward’s Ward’s deprived tion of Fontenot’s case or him a brother well as other witnesses testified right essential to his defense. See [Ward’s brother] West did not in fact own State, Chevy gray primered pick-up. Accord ingly, they not support suggests helped do Fontenot’s claim that this Ward evidence win for reversal. imprisonment sentence life rather than

86 Further, Fontenot, it must be noted that Ward’s According coun- to defense

death. year one after Fontenot’s. investigate retrial occurred adequately failure sel’s whether, at the impeachment cannot even determine present and We issue retrial, attor- his defense trial assistance time of Fontenot’s his constituted ineffective at knowledge or of these ney had access to of counsel. witnesses, consid- he would have whether an ineffec “Appellate review of testimony presentation of their wise ered begins claim with a tive assistance of counsel in which Fon- strategy. The manner defense competence, the burden presumption of and develop trial chose to tenot’s counsel both a upon the defendant demonstrate is prejudice did not Fonte- present defense resulting preju performance and deficient therefore, not, ineffec- not and did constitute 466 U.S. Washington, Strickland v. dice.” tive assistance. 2064-65, 668, 687-89, 80 104 S.Ct. Fontenot also claims counsel’s (1984). test The ultimate is L.Ed.2d object to numerous first and second failure whether, per allegedly deficient but for the stage allegedly improper prose- instances of formance, result trial would have as comment constituted ineffective cutorial 694, 104 at different. Id. at proposition We concluded sistance. — U.S. -, Fretwell, also Lockhart v. See they attacking did these comments (1993). 113 S.Ct. 122 L.Ed.2d 180 fundamental, to the reversible rise level attorney inves have fact that defense could inter Even if defense counsel had error. not, tigated thoroughly an more does issue comments, objections posed to all these itself, ineffective assistance. constitute required Ac they would not have reversal. 413; supra, P.2d at Williamson v. object cordingly, counsel’s failure to defense (Okl.Cr.1991), 1117, 1126 Boltz v. these did not him inef comments render — denied, U.S. -, rt. 112 S.Ct. ce 143, denied. fective. This (1991). Dut L.Ed.2d See (10th Brown, ton v. 812 F.2d Cir. convictions and sentences for Fontenot’s 1987) (“A attorney perfor fair assessment kidnapping robbery are AFFIRMED. requires every made mance effort be degree conviction first murder is also His hindsight, distorting eliminate the effects of AFFIRMED, his sentence of death must but of counsel’s to reconstruct the circumstances VACATED and this cause REMANDED be conduct, challenged the con and to evaluate for RESENTENCING. time.”) perspective from at the duct counsel’s “can V.P.J., If an ineffective assistance claim JOHNSON, and LANE ground preju of disposed of on the of lack STRUBHAR, JJ., concur. dice, appellate an court need not determine P.J., LUMPKIN, part/dissents concurs in performance was defi

whether trial counsel’s part. in Strickland, 697, supra, cient.” at 466 U.S. 104 S.Ct. at 2069. LUMPKIN, Presiding concurring Judge, part: part/dissenting in in The which Fontenot claims affirming Appel- I concur with the Court’s pres incompetently counsel failed The Court’s excellent anal- lant’s conviction. pro during stage first and ent both second ysis determining in the standard in discussed ceedings its ab compelling not so was States, 84, 348 75 Opper United U.S. reversibly prejudiced Fontenot. sence (1954) 158, 99 101 is well taken. The L.Ed. retrial, testimony Ward’s at brother’s Ward’s adoption practical approach of more along family mem with that of several other eliminate the aberrations standard should bers, simply testimony of the rebutted State, Thornburg in found cases such as presenting agent. insurance While these (Okl.Cr.1991), I which believe to might during witnesses Fontenot’s trial have by this decision. be overruled exactly cast some of doubt who shadow However, truck, agree I cannot with the result gray owned there is no reasonable remanding resentencing in for probability reached based that it would have.

87 (Okl.Cr.1993) Therefore, respectfully 852 P.2d I must Hain v. 744 dissent to on (Okl.Cr. portion opinion remanding and Salazar v. 729 for a 1993). hearing. adopting sentencing In that rationale this set new facts, step beyond gone has of the Court reasonably

what even foreseeable. ORDER DENYING PETITION FOR AND REHEARING DIRECTING why I repeat shall not I the under- believe OF ISSUANCE MANDATE rather, here; premise faulty I lying stand by jury Karl Allen Fontenot was tried my in Hain dissents and Salazar. How- Degree and convicted of First Malice Afore- ever, I am forced write here because this thought O.S.Supp. Murder in violation of 21 decisis, beyond goes stare mere as the facts (Count III), § Kidnapping 701.7 in vio- amply demonstrate. (Count O.S.1981, II), § 21 lation of The in April Ap- victim was killed 1984. Robbery Dangerous Weapon with a in viola- September pellant was tried 1985. This (Count I), § of 21 O.S.Supp.1982, tion July Court reversed in 1987. The life with- Hughes County, the District of Court Case parole provision out became effective Novem- In No. with CRF-88^3. accordance Appellant was retried June ber recommendation, jury’s the Honorable Don- result, 1988. As a this Court to re- seeks ald E. twenty Powers sentenced Fontenot to again provision mand once because a new of I, years imprisonment years for Count ten law went into effect not between the time of imprisonment II, for Count and death for trial, the act’s commission and of the time III. Count but between trials. In published a June opinion, thing; following Stare one decisis is but it Court affirmed Fontenot’s on all convictions here would be in direct of contravention counts, three but remanded the murder con- law. sentencing hearing viction for a at new Fontenot was receive the “life without changes This ruling ignores the in 21 parole” instruction. Fontenot is now 701.10a, O.S.Supp.1993, dealing § with re- Rehearing, before the Court on a Petition for manding sentencing. version, for In new governed by 3.14, which is Rule Rules of Legislature clarified what should have Appeals, O.S.Supp. Criminal obvious, giving option 3.14, App. According Ch. to Rule choosing any by sentence “authorized law at Rehearing for Petition shall not be filed as a time the commission the crime.” 21 course, only matter but reasons: two 701.10a(l) O.S.Supp.1993, § (emphasis add- (1) question That some decisive ease ed). provisions specifically are intended duly by attorney submitted apply retroactively. O.S.Supp.1993, Court, record has been overlooked 701.10a(5) provision § became effective or opinion June 1993. This Court’s comes (2) after time. It down should therefore That the decision is in conflict with an logically express control over this or controlling Court’s Salazar statute decision to ruling, Legis- as it is a clear which indication of the attention this Court was not disagreed argu- lature it with this called either in the brief in oral Court’s pronouncements. ment. The sole Fontenot raises The Court in this decision even exceeds Rehearing Petition for does not meet the anticipated allowing what could have been criteria Rule will not set forth in 3.14 and appellant vestiges an to latch on to addressed.

Hain and Salazar. The benefit foresee- ability given should be the State well as IT IS THEREFORE THE ORDER OF defendant; stop- and this case should be a THIS COURT Petition for that Fontenot’s point ping reaching past Rehearing for back into the be DENIED. The Clerk attaching purposes of a decision issue forth- Court directed to the mandate appellant right depend. an no clear has with. ORDERED.

IT IS SO THE AND HANDS OUR WITNESS day of this 30th THIS COURT OF SEAL September, 1994. Gary Lumpkin L.

/s/ LUMPKIN, L. GARY Presiding Judge A. Johnson Charles /s/ JOHNSON, A. CHARLES Judge Presiding Vice F. Lane James /s/ LANE, F. JAMES Judge Chapel Charles S. /s/ CHAPEL, S. CHARLES Judge M. Strubhar Reta /s/ STRUBHAR, RETA M. Judge CRAWFORD, Appellant, Joseph Oklahoma, Appellee. STATE No. F-93-786. Appeals Oklahoma. Criminal Aug.

Case Details

Case Name: Fontenot v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 8, 1994

Citation: 881 P.2d 69

Docket Number: F-88-571

Court Abbreviation: Okla. Crim. App.