*1 FOX, Ray Appellant, Billy Oklahoma, Appellee.
STATE F-86-511. No. Appeals Oklahoma. of Criminal Court Aug. 1989. Rehearing Denied Oct. 1989.
Between 3:15 a.m. and 3:53 a.m. on the 3, 1985, morning July employees three Wynn’s grocery I.G.A. store Ed- mond, Oklahoma, were murdered while $1,200.00 duty. Cash the amount $1,500.00 totalling checks were taken from employees the store. The three were killed in the room of the store. back Two them, Chaowasin, Chumpon Rick Cast single gunshot died from wounds to their third, Barrier, heads. The John died from being neck, stabbed numerous times chest, side, being back well from *4 bludgeoned on the back of his head with a shotgun. approximately July
At 2:30 a.m. on codefendant, Fox and his Mark Fowl- er, gone had bedrooms of Fox’s two shotgun roommates and asked to borrow a from each. When Fox returned home later morning, he confessed to one room- people. Af- mate that he had killed some terwards, as a news broadcast of the kill- television, ings appeared on the Fox admit- ted that that was what he had done. Both defendants were arrested on the evening July 3. was arrested approached pickup, his the same ve- in hicle which he had traveled to and from grocery police store. two offi- When appeared, appellant compan- cers handed Ravitz, County Robert Oklahoma Public truck, ion a wad of cash. the bed Defender, Toure, Gelvin, Opio Asst. Pete police bloody splinters found from the Defenders, City, ap- for Public Oklahoma shotgun, together stock of a broken
pellant. gun’s casings. forestock and two shell Gen., Atty. Henry, Robert H. Susan following morning, made a state- The Fox Dickerson, Gen., Atty. Stewart Asst. Okla- police ment detectives and led them to a City, appellee. for homa purse which contained some checks white during taken from the IGA that had been OPINION robbery. the officers He also told knife they in his home could find a where BUSSEY, Judge: proved knife later that he had hidden. The Fox, Billy Ray appellant, was convicted the cause of Barrier’s to be consistent with County in District Court of three Oklahoma shotgun wounds. The of the barrel Degree counts of Murder the First while yard. found in some debris Fox’s Robbery in the commission of with a Dan- police admitted to Both Fox and Fowler felony- gerous Weapon, pursuant to the gone grocery they officers that O.S.1981, codified at 21 murder doctrine robbery, but each de- store to commit 701.7(B). jury before a He was tried committing participating in the nied punishment set at death on each count. accordingly. him homicides. court sentenced
The trial group recognizable, is a dis- I that even singled tinct class which could be out for assignment of error is Appellant’s first County. different treatment Oklahoma through the denied a fair trial that he was Census, According Asians to the 1980 U.S. of “minorities” from systematic exclusion population. percent constituted .99 of its He this contention jury. summarizes belongs group appellant to which court committed asserting trial “[t]he form a distinct sufficiently numerous to refusing appel- to allow reversible error class. Because the failed produce the ‘records’ opportunity to lant an system- step establishing first reach the number of minorities jury panel, the group, of his the trial court atic exclusion 5,May 1986.” To the panel in the on obligation provide appel- was under no motion, counsel attached the af- jury panel. “records” of the lant the practicing in attorney fidavit of another stating that while “mi- County Oklahoma hearing appellant’s pretrial At the percent seventeen norities” constituted motion, County Election Sec- the Oklahoma county, he believed population retary testify proce- called to as to the only percent represented five they registering voters in the dures utilized duty. Defense coun- jury for those called county. The local clerk also described clerk be ordered requested sel registered names of all voters how people ap- who to count the number computer county were entered into a physically ap- peared jury duty who randomly petit juries. then withdrawn for minority. represent a The trial peared to procedure clear that the set forth It was *5 request. For the follow- court denied the calling jurors, the Oklahoma Statutes for reasons, agree appellant ing do not that we 18, O.S.Supp.1985, 38 was followed and § systematic trial was denied a fair racially suscep- neutral not that it was or that the trial exclusion of minorities qualified any to abuse. The method tible of requiring a count court erred not grand registered to be called as a or voter apparent minorities. Thus, petit juror. appellant had made a discriminatory purpose prima facie case of Supreme Court The United States by showing underrepresenta- substantial 475, Texas, 347 U.S. held in Hernandez v. group, of his the State would have tion 667, 670, (1954), 477, L.Ed. 866 74 98 S.Ct. Castaneda, at easily rebutted it. 430 U.S. equal protection of the that “it is a denial 494, Accordingly, 1280. this 97 S.Ct. at particu of a try a defendant of laws assignment of error is without merit. an indictment issued lar race or color under persons all by grand from which jury.... a have, solely because of II
of
race or color
his
color,
by the
excluded
that race or
been
assignment
Appellant’s
second
defendant asserts this
When a
State....”
jury repre
a
error is that he was denied
protection, he must
equal
form of denial
senting fair cross section of the communi
a
procedures used to call his
that the
show
O.S.1981, 28(A),
ju
ty
38
allows
underrepre-
jury
in substantial
“resulted
age
opt
seventy years of
or above to
rors
or of the identifiable
sentation of his race
jury
previously
out of
service. We
belongs.
step
The first
group
he
to which
unpersuaded to
this issue and are
discussed
group is one that is
is to
establish
holding
exemption
this
change our
that
class, singled out
recognizable, distinct
a
does not exclude a suffi
from
service
laws,
treatment under
for different
group.
ciently numerous
and distinct
v.
applied.”
or
Castaneda
Parti
written
161,
(Okla.Crim.App.1987),
165
Moore v.
1280,
1272,
da,
— U.S. -,
denied,
t.
cer
108 S.Ct.
Hernandez).
(1977) (citing
he is half community. Id. Fur- However, people say cannot such we sian/Hawaiian.
567 thermore, find exemption (1961); we to be rea- 81 S.Ct. Walker light P.2d increasing sonable in rate of v. 1986);
physical infirmities incurred senior citi- Moore (Okla.Crim.App.1983). resulting lengthy hardships zens and if required. Supreme is jury service say We cannot on the record before Louisiana, Taylor Court held Court that tried the L.Ed.2d prejudiced unfairly against him be- principle the fair cross section coverage media cause of the of his or case leeway much for rele- must offer and allow deep pattern that there a prejudice qualifications jurors for well as vant throughout the community. Murphy v. exemptions.1 reasonable Florida, assignment This
Ill without merit. urged in Appellant pretrial motion IV not re change for venue that he could County trial in Oklahoma due ceive a fair next asserts that the trial pretrial publicity. to extensive He con court committed reversible error in sev ering tends that voir dire examination at trial his from trial his trial codefendant’s impossible truly it mutually antagonistic showed that was because of their de impartial jury pit fair and to be seated his fenses. He claims that their defenses disagree against case. We with this conclusion. ted them one each another because sought to other. blame homicides on the it is true that most of venire While had read heard media made police, accounts statements each serving robbery/homicides, acknowledged planning par- none of those defendant appellant’s jury opin- ticipating an robbery, formulated in the but stated that guilt fact, part ion of his or innocence. In dur- had no and never envisioned vio- dire, ing However, voir one individual that had lence nei- toward victims. opinion
formed an was excused for cause. ther testified defendant at trial and *6 in only portions Another had heard the media each of their that redacted statements placed codefendant had the for the trial blame introduced at were their admissions other, on going grocery robbing homicides the and also ex- it. to the store and Therefore, cused for cause. issue before us is the not wheth- disagreements the er there are between judge The trial voir dired at bench facts, concerning the but defendants others, hearing and out each in antagonistic whether the defenses are who had the case venireman learned of excul- attempting that each defendant is to Thus, carefully pre- from media. he inculpate and pate himself his co-defen- being vented the venire from contaminated dant. acquired information others had from closing argument, accusatory allowing During the media while at the same re- time attempts each to disclose his her marks made in venireman own were show opinion. greater responsibility and knowledge are satisfied Fox should We bear However, procedure than adequately allowed the murders Fowler. inquiry charged degree thorough into the veniremen’s defendants with first were opinions knowledge acquired felony-murder and from me- murder under the statute acts dia accounts and ensured that those who because the died as a result of victims fairly further the of a impartially sat on the could committed to commission to-wit, presented felony, robbery. on the An judge appellant examination 717, Dowd, Irvin v. the statements shows that both defendants at trial. See 357, Missouri, expressed age v. U.S. 99 S.Ct. of 65" and no concern with 1. In Duren 439 Supreme princi- Court L.Ed.2d 579 58 the fair cross section latter it affected statutory exemption compared ser- a from ple. "persons over the with that of vice of "women" 568 felony-murder exercising as one defendant
inculpated themselves of treated responsi- challenges. greater allotted bears whomever guilt. immaterial to the issue of bility is have As we found no substantial incon- Thus, has an not demonstrated sistencies, we no the stat- find violation resulting tagonistic prejudice defenses nor question appellant’s ute in nor of constitu- Fowler. being tried with codefendant from rights in requiring the codefendants tional State, 854, 857 v. See Vowell challenges. peremptory in their join (Okla.Crim.App.1986); Woundenberg Van State, (Okla.Crim.App.1986) v. P.2d 331 720 VI denied, 479 rt. ce (1986); 395 Master v. 93 L.Ed.2d Appellant next asserts that trial State, P.2d allowing erred in individual court voir its The trial court did not abuse hearing juror, dire of each out of denying appellant’s motion for discretion others, capital punish as to their on views severance. previously have ment. We addressed considering trial court’s discretion such
V request unper on several occasions and are of its suaded usefulness case. holding Relying this Court’s Vowell See (Okla. P.2d Master (Okla.Crim.App.1986); Foster v. found that Crim.App.1985), trial court (Okla.Crim.App.1986) cert. did not have inconsistent the codefendants denied, from prevent defenses which would them have no reason required join exercising being dire from the record that voir believe peremptory challenges according to nine unduly hampered. that of We note those O.S.1981, 655. contends questioned, three veniremen excused antagonistic, his since their defenses were opposition for cause because of their peremptory for additional chal motion penalty, excused for death and one was granted and that lenges should been irrevocably to being cause due committed denied number of constitutional penalty. the death rights a result. previous assignment, found
In the we present codefendants did not an- VII reason, we tagonistic defenses. For that Appellant claims the trial court say that erred in cannot trial court veniremen, excusing erred for cause two challenges. refusing grant additional Porter, of their Stutzman con Furthermore, we find to be control- Master *7 penally. the When cern about death asked Indeed, the trial ling on this issue. as answered, following question, the each noted, language the of the statute court “No”: chal- specifying peremptory the number of you If find beyond a reasonable doubt O.S.1981, mandatory. lenges is Title guilty of that these defendants are mur- 655, “if that or more defen- states two you degree in the first can consider der jointly join in they are tried shall dants legal punishments, life or both death? added). challenges_” (emphasis their brief, per- judge points questioning by in the trial elic- out his Further As challenges constitutionally negative Defense counsel are not ited answers. emptory granted opportunity in guaranteed subject requested are to limitations and was and voir one but exercise. See v. United to further dire venireman was Stilson 583, 28, Ap- other. States, opportunity 63 L.Ed. on the 250 U.S. 40 S.Ct. denied (1919). of the venire- pellant that claims that excusal Court held Stilson may regulate rights his and that was government permissibly men violated disagree challenges avail- to further dire. peremptory of entitled voir number charges. may require to be both able and codefendants with
It clear robbery. Appellant from the trial court’s in also told them where that quiries the views of these two venire to locate a knife in the robbery used prevented men would or substantially During executed a search waiver. an impaired camera performance hearing of their duties as determine voluntari- jurors statements, this case. This is ness of his sufficient Fox testified that ground potential juror things only to excuse a he did these after one of the Wainwright v. detectives capital in a cause case. him. had assaulted Witt, 469 U.S. 105 S.Ct. Appellant cites the case Rhode Island of (1985). L.Ed.2d 841 previously We have Innis, right held that there is no for counsel of authority for the party either rehabilitate venireman and giving assertion that the officers’ of their protracted inquiry have noted that about cards business amounted to an interroga- punishment capital may tend confuse the counsel, tion after he requested had there- Banks See issue. by violating rights. his Fifth Amendment (Okla.Crim.App.1985). We find no Arizona, also See Edwards v. abuse of discretion. However, holding we Innis find the also mentions this as support opposite position. case, In that signment, without of authority, citation arresting police defendant led the offi- the trial allowing court erred cers to the weapon location of murder defense counsel to voir dire the veniremen overhearing after a conversation between they might what about circumstances view consider, expressing two the officers their con- mitigating. We do not this to that handicapped cerns children in the vi- anbe abuse of the trial court’s discretion cinity might weapon find the and hurt directing the manner and extent of voir themselves The court with it. held therein
dire. See McFatridge v. “interrogation” not limited to ex- 1226, 1229 (Okla.Crim.App.1981).
press questioning,
included
but
words and
by police
police
actions
should
VIII
likely
know are
reasonably
elicit an in-
eighth assignment
error,
As his
criminating response.
300-301,
446 U.S. at
appellant contends that
trial court
gave him their in case begun, appel cards he or his the trial After *8 attorney police. desired to contact the lant’s counsel advised the trial court that They they they advised him telephone that were not there had received several calls discuss his case. to As the officers started from an claimed to individual who be an leave, drug Fox advised them that his case informant and on deals who worked getting any not and was better that he with certain law officers. The enforcement 3, 1985, He July to talk to them. made an in individual wanted advised that he he, criminating tape statement was re heard claim which Mark Fowler not Fox, during the and thereafter led detectives to had killed the the corded victims rob containing during bery. checks stolen would purse identify a the This individual not an X he with Officer himself said worked but Hill Beck. Officer was Hill an Officer and complains Appellant next trial called the witness at an endorsed photographs tape three and video which Beck for sure who No one knew State. depicted unduly the scene murder were only officer Beck named was because gruesome prejudicial and that their value City Police for the Oklahoma who worked outweighed probative dis value. We helicopter pilot, was Department was a and agree. photographs The were in and black assigned not to narcotics. except during white for the one introduced trial, requested attorney Fox’s At splatter expert’s That testimony. the blood required to Hill be disclose Officer photograph pattern showed the of blood all his informants names addresses of and splattering explained and and corroborated and if might be called asked they so that testimony and expert’s the order heard Fowler they one who had were the killing. method of court not The trial did
make this claim. photograph The other was and credi- black require of the doubtful this because caller, danger body bility anonymous simply to white and showed Barrier’s of an Hill, working pool Officer lying with face down in a The informants blood. Attorney’s office and the District photograph complained third of was everything they did could and Officer Hill leading doors room the store. the back identify helping counsel defense spot might On one door red was a which called in- Officer Hill several individual. have been blood. might only located one who formants and pictures videotape not un The and were gave Hill defense have made the calls. necessarily descriptive of the details of the telephone number of counsel the name and they injuries particularly nor were victims’ him, person, speaking after with but gruesome. fact, very little of the foot did not believe was defense counsel age videotape devoted person same who had called earlier. Offi- footage scene of the victims’ deaths. Most Hill Officer cer also contacted an Beck in the front of the Those was taken store. Drug Enforcement Administration to did show the victim which Barrier identify determine if he could the caller. expert properly admitted to corroborate could He of no Officer Beck not. knew testimony prove corpus and delicti. See acquainted with that was Fox informant (Okla. P.2d Castro v. Fowler. DeVooght v. Crim.App.1987); Appellant charges trial court and, (Okla.Crim.App.1986); P.2d granted continuance should have of trial Thompson v. closing arguments immediately be- before (Okla.Crim.App.1985). There no error. is department gan police ordered and provide names addresses of all its police depart- to the court. The informants XI disclosing
ment is from iden- privileged assignment appellant next con- In his tity of informants. 12 O.S. confidential three individuals testified tends that who 2510(A). Appellant’s request is trial have expert witnesses at should not requesting more than the name far-fetched been allowed do so. specific only He of a informant. de- manded name of someone who never information police the
gave to the he want- A ed, names of all their but he wanted the appel first witness informants involved with nar- confidential complains is lant Ned Stuart. Stuart request cotics. The unfounded as far qualified by expert the trial court as an legal authority is concerned and could code- of tests he conducted on the endangered the of a testified lives welfare assignment clothing during the homi people. This worn number of fendants’ *9 surround- on the immediate area without merit. cide and ing the death scene. Luminal tests were C presence
performed to detect the of blood As his final assign- contention within this process on these surfaces. This is used ment, Joyce Fox claims that Gilchrist suspected being present is when blood should not have been testify allowed to visibly is not simply but discernible. It that, her conclusion upon pres- based a chemical involves reaction to the blood Barrier, ence hairs found on the victim which causes blood to luminesce. Posi- scalp were consistent with hairs of tive results were obtained on most of the Fowler, Fox and both defendants were in surfaces tested. contact with the victim Barrier. Title 12 approved disap has This Court never or O.S.1981, provides regard that in § proved expert testimony concerning Lu- experts, “[testimony in the form of an scientific, testing. “If minal technical or opinion or inference otherwise admissible is knowledge specialized other will assist the objectionable because it embraces an trier of fact to understand evidence or ultimate issue to by be decided the trier of issue, to determine a fact a witness Relying fact.” on this section of the evi- skill, qualified expert by knowledge, as an code, dence judge the trial allowed the tes- experience, training may or education testi timony. Ms. Gilchrist was asked fy in opinion the form of an or otherwise.” prosecutor whether opinion she had an O.S.1981, case, 2702. the trial regard findings to her in the case and that judge properly informed himself of the reli is when she offered her aforementioned ability expert’s of the tests used2 and conclusion. qualifications3 precision using and his Ms. Gilchrist admitted that an individual testimony the tests and decided that positively could not be identified hair would assist the trier of fact. Kennedy v. However, evidence. she went on testify 640 P.2d that, opinion her Mark ... Fowler and “[in] 1982). We find no abuse of the trial Bill Fox were in contact with John Barrier admitting court’s discretion in Ned Stuart’s prior (Tr. 1581). to death.” The lack of testimony. weight scientific of such a conclusion is apparent on dealing reflection those B regular with similar evidence on a basis. contends that the testimo- lay jury, usually But ill-equipped to a Bevel, ny Sergeant qualified Tom who analysis findings assimilate hair on their splatter expert, a blood should not have own, opinion may appear such an too substantial. been admitted his based conclu- McCarty Cf . partially sions on the luminal test results of (Okla.Crim.App.1988), wherein a assignment Ned Stuart. This is unmerited majority expert of this Court held that since we have found that Mr. Stuart was opinion that a defendant was fact properly qualified testify of the results present done to the when violence was vic Sergeant tests. Bevel was luminal improper. tim was properly qualified splatter as a blood ex- pert, opinion testimony Farris v. of an While admissible, (Okla.Crim.App.1983), present and also expert properly such a wit performed encouraged by pros when Mr. Stuart the luminal ness should not be give imprecise tests. ecution the defense Gaensslen, R.E., Idaho, years 2. Sourcebook in Forensic Serol- time coor- thirteen at that (U.S. Immunology, Biochemistry ogy, Govt. dinator of the School of Law Enforcement at Aug., judge Printing Office The trial re- College years. By North Idaho for fifteen edu- ferred to the cited source and several others in informing cation, training experience, Mr. Stuart testi- reliability himself of the of the lumi- physicist fied he was a chemist and and had nal tests. study po- twenty-eight postgraduate hours of lice science. He also had 750 1000 hours Ned Stuart testified that he had been director 3. police study science in seminars. Aleñe, regional crime lab in Coeur d’
572
nom., Chaney
grounds sub
this
on other
imprecision
of
Had
conclusions.
ified
Cir.1984).
(10th
Brown,
exemplified trial, appellant’s Sam of appellant could not that he knew testified
XII
question
guilty
the crimes
be
argued
he
when
he was never violent even
trial,
sentencing stage
ap-
During the
judge then ruled
The trial
with others.
fifty-four
who
presented
witnesses
pellant
testimony
introduce
could
State
meaning
life had
to them
that his
testified
stabbing incident. The evi
rebuttal
he should be sentenced
felt that
and who
attending high
he was
dence was that while
given
being
imprisonment rather than
life
school,
a conflict of a racial
appellant had
He also offered the
penalty.
the death
He searched
boys.
other
with some
nature
more
same effect
five
affidavits to the
them.
one of
for a knife and then stabbed
present to
people
be
who
unable
O.S.1981, 2404(A) provides:
Title
court held that
testify
his trial. The
at
hearsay rule
or a
exception
person’s
character
no
Evidence of
there was
admission. Fox
not admissible
of his character is
would allow
trait
in re-
proving
trial court erred
acted
purpose
for the
contends
particular
conformity
evidence.
on a
fusing to
therewith
admit
occasion, except
hearsay
is true that
it
While
trait of his
pertinent
of a
1. Evidence
in a mechanistic
applied
rule should not be
by an accused or
offered
character
ends of
defeat
would
fashion which
same;
....
prosecution
rebut
Georgia,
justice, Green
Brodbent v.
the rules See
60 L.Ed.2d
Appellant’s conten-
nonetheless,
(Okla.Crim.App.1985).
should,
regulate
of evidence
him to re-
caused
sentencing
that this evidence
tion
in the
proceedings
the course
is merit-
penalty
ambush
the death
Chaney v.
ceive
case.
stage
capital
of a
motion in
he made a
Prior to trial
less.
(Okla.Crim.App.1980), mod-
against him.
Columbia,
135, 138,
S.Ct.
L,Ed.
(1920).
cases,
capital
In
XIV
an instruction on this issue would inform
jury
Appellant asserts
the
jury
right
of its
to return a sentence
give
particularized
him
considera
could
weight
great
of life no
how
matter
penalty
assessing
the death
tion
supporting the
circumstances.
Fowl
jointly
he
tried
with codefendant
was
However, the courts have almost uni
sentencing stage.
espe
This is
er at the
formly held that a criminal defendant is
so,
argues,
prior
since Fowler had
cially
See,
not entitled to such an instruction.
felony.
for a violent
The con
convictions
e.g.,
Wiley,
United
v.
States
503 F.2d
particularized
requirement
stitutional
(8th Cir.1974).
But see
107 n. 4
character
consideration of an individual’s
Watkins,
Washington v.
655 F.2d
penalty
before the death
and circumstances
(5th Cir.1981).
1374 n. 54
The rationale
meted out does not necessitate a
may be
majority
eloquently
for this
ex
view is
hearing
separate sentencing
for codefend-
Dougherty,
United States
plained
Carolina,
v. North
ants. See Woodson
(D.C.Cir.1972).
473 F.2d
1130-37
2978,
L.Ed.2d 600
(1983);
L.Ed.2d 235
Brogie
v.
P.2d 1004 The There is no error. properly jury herein was instructed of the XVIII proof duty of and of their State’s burden weigh countervailing circumstances jury during was advised The appropriate and to determine the sentence. guilt stage of trial to sympathy, not let assignment This is without merit. prejudice play part sentiment or in a They were instructed: deliberations.
XVI ... From all the facts and circumstances appearing coming in evidence and O.S.1981, 701.11, 21 pro Title trial, your during observation aided jury vides that case the cannot reach a by knowledge you pos- each concerning punishment unanimous decision persons, sess common you with other time, capital in a a case within reasonable your will reach conclusions. You should impose judge Ap shall a life sentence. sympathy, not let sentiment or prejudice pellant requests this Court reconsider its deliberations, your enter into should but prior holding jury does not need to discharge your jurors impartial- duties as concerning be instructed rule of law. this ly, conscientiously faithfully under 993, E.g., Johnson v. 731 1005 your oaths and return such verdict as the However, (Okla.Crim.App.1987). we re warrants when measured jury main convinced that the should not be (OUJI-CR 907). these instructions. supervisory concerned with the trial court’s improperly role. an instruction could Such During sentencing stage, the trial court jury performing duty distract the from its jury further instructed the that the first assessing of the sentence. stage applied appropri- instructions where together
ate and were to be considered XVII supplemental Appel- with the instructions. admonishing jury lant contends that Appellant asserts the trial against letting part sympathy play court committed fundamental error prevented their deliberations them from instructing jury there exists a “ range considering possible the full miti- ‘presumption guarantees of life’ which gating Eighth factors violation person right convicted of murder the to live and Fourteenth Amendments. prosecution for life incarcerated unless the juror that a We do not believe reasonable beyond demonstrates a reasonable doubt charge could have understood the to mean only appropriate is the penalty that death they could not consider all relevant for the defendant.” neither re circumstances, mitigating a constitutional instruction, quested specific Childs v. expounded failure in Eddings v. Okla- 567, 568 homa, 102 S.Ct. U.S. 1987), authority nor now cites relevant (1982) Ohio, and Lockett v.
support of it. The cases he offers are
U.S.
U.S.
The mitigating present determination what are which was in the instruction in you circumstances is for jurors Parks, present is not in this instruction.
resolve under the facts and circumstanc- Supreme We therefore find the Court’s (OUJI-CR 438). es of this case. opinion Brown, supra, well-reasoned controlling. Brown, be the Court Thirty potentially mitigating factors were stressed, “reading the instruction as a listed by jury. Many the court for the whole, must, we it is no more than a encompassed aspects person- catalog of the kind of factors that could ality appre- or life that not have could been improperly juror’s influence a decision to ciated sympathy unless an element of against vote for or penalty. the death example, allowed. For in- doctrine noscitur a sociis is based on structed that evidence that had sense, juror common been a rational could abandoned his natural mother and hardly hear this helped by taking that he his sister instruction without con cluding blame that it was for some of her actions meant confine the could jury’s been considered as deliberations to considerations circumstanc- aris *13 ing es from the presented, ag them. evidence both gravating mitigating.” See also instruction, prohibited by What was Butler, (5th Byrne 847 v. F.2d 1135 Cir. and what would be understood a reason possibil We also find no substantial being prohibited juror able “emo were ity might juror that a reasonable have rest responses tional aggravat not rooted ed her improper his or verdict on an inter ing mitigating evidence introduced dur pretation of the instruction. Mills v. ing phase.” penalty v. Cf. California 367, 1860, 486 Maryland, U.S. 108 S.Ct. Brown, 538, 542, 837, 479 107 U.S. S.Ct. (1988). 100 384 Finally, when re 840, 934, (1987). 93 L.Ed.2d 940 a Such whole, viewed aas we find that the entire promotes limitation rather than offends interpreta instructions delivered a correct purpose in Eighth Amendment elimi to tion of the law. capricious nate arbitrary and action in sen tencing. Gregg Georgia, v. 428 U.S. XIX (1976). 96 S.Ct. In State,
Johnson v.
731 P.2d
urges
Fox next
1004
trial court
(Okla.Crim.App.1987),
juries
we noted that
if
committed fundamental error
not defin
guided
were
by sympathy
allowed to be
in ing
aggravating
the elements of the
cir
cases,
their
capital
deliberations in
it is a
that the
cumstance
murders were commit
likely
consideration
to work to
disad
avoiding
purpose
prevent
ted for
or
vantage of the criminal defendants.
ing
prosecution.
a
arrest or
lawful
How
ever,
applied
given
the instruction as
lan
given
We also find the instruction
in this
guage commonly
easily
used and
un
distinguishable
case to be
from the anti-
No further definition was
derstandable.
sympathy
given in
instruction
Parks v.
required.
702
See Liles v.
P.2d
Brown,
(10th Cir.1988).
F.2d
(Okla.Crim.App.1985),cert.
de
Parks,
provided
pertinent
the instruction
nied,
part: “You
any
must avoid
influence of
(1986). Moreover, appellant
L.Ed.2d 732
sentiment,
sympathy,
passion,
prejudice
request or
an
failed to
submit
instruction
arbitrary
imposing
other
when
sen-
factor
required
such
he
now claims to be
added)
(emphasis
tence.”
The Court felt
complain
appeal
heard
cannot be
to
that the instruction carried with it the dan-
Idles,
its
at
absence.
1031.
ger
leading
ignore sympathy
to
(Okla.Crim.App.1984),
Nuckols v.
that is based on
evidence. Id. at
denied, 471
t.
1553.
cer
1030,
(1985).
L.Ed.2d 323
Initially, it is
Uni-
obvious
Oklahoma
(Criminal)
Jury
disagree
appellant
form
Instruction
907 does
when
qualifier “any.”
presented
Secondly,
not contain the
he
at
claims
evidence
factor,”
phrase
arbitrary
support
finding
“or other
trial
insufficient to
aggravating
ly
application
aggravating
exist
limited
of this
this
circumstance’s
The
was that he
circumstance to those murders which are
ence.
went
formerly
preceded
physical
em
the store where
had been
torture or serious
ployed intending
sufficiently
it. He had
rob
worked
abuse. We find that this
nar-
with one of the victims. The codefendants
rowed the class of murders to which the
applied. Godfrey
attempts
made no
to conceal their identi
circumstance could be
Georgia,
resting
ties. One of the three victims was
brought
upstairs
an
break room and was
L.Ed.2d 398
store’s
room where he
down
back
The
case was
robbery
was killed with the others. The
properly
point.
instructed on this
We find
early
and homicides were executed
supports
finding of
that the evidence
morning hours when no other customers
aggravating
circumstance as to the
The
likely
were in the store or
to arrive.
death of John Barrier. While two of the
shotgun
parts of the broken
and the checks victims,
Chumpon
Rick Cast and
Chaswa-
robbery
taken in the
hidden in
various
sin,
single gunshot
died from
wounds
The
locations.
codefendants rinsed their
head,
John Barrier was stabbed a num
splattered
returning
blood
clothes before
which, together
ber of times
with blunt
together
their homes. These factors taken
head,
force trauma to the
caused his death.
were sufficient circumstantial evidence
shotgun
used to
the others
shoot
pre
killed with the intent of
bludgeon
used
Barrier’s head. So much
venting
prosecution.
arrest or
lawful
splintered
force was used that the stock
1349, 1362
Stouffer
(Okla.Crim.App.1987), cert.
pieces
and fell into a number of
and the
—
denied,
*14
The evidence indicates
barrel was bent.
-,
763,
U.S.
108
U.S. 108 98 L.Ed.2d. 163 S.Ct. Furthermore, wounds on his hand. sive (1987). assignment This is without merit. Fowler told officers that he heard Barrier beg cry pain out in for his life. We
XX adequate find this to be evidence that Bar reurges Appellant next his fifteenth as- physical rier suffered serious abuse.
signment jury of error that the should have required beyond to find been reasonable XXII aggravating doubt that the circumstances Appellant aggra contends that the outweighed factors before a vating set in 21 circumstance forth O.S. imposed. of death could sentence be Hav- 1981, 701.12(7) by and found above, ing fully proposition answered this case, that, present be in his “The existence again. decline to address it we probability of a that the defendant would commit criminal acts of violence that would
XXI
continuing
society,”
constitute a
threat to
being
aggra
applied
claims that
an unconstitutional man
vating
supported by the evidence.
circumstance that a murder is “es ner and is not
heinous, atrocious,
pecially
previously
or cruel” is be
addressed the constitu
We
and, therefore,
aggravat
tionality
application
of this
ing applied
arbitrary,
in an
Cartwright
unconstitutional manner. See
ing factor and held that it is not constitu
Woundenberg
v.
(10th Cir.1987);
Maynard,
v.
Van
tionally
infirm.
stance. This lacks merit. Finally, appellant contends that 21 O.S. Supp.1987, 701.13(E)(2),which allows §
XXIII trial court to resentence a defendant in a capital asserts that under the deci- if case this Court finds error Court, sentencing stage sions of this if one of four is unconstitutional. This BRETT, J., LANE, V.P.J., and appellant’s application no statute has concur. not found reversible we have case because Therefore, find it we error in his trial. LUMPKIN, J., specially concurs. constitutionality
unnecessary to discuss the
LUMPKIN, Judge, specially
statute.
concurring:
opinion and I
majority
I concur in the
XXVI
purpose making
additional
for the
write
find,
jury
and the
further
regarding Appellant’s Proposi-
comments
instructed,4
consider
that individualized
so
concerning
court’s
Error XVIII
tion of
supports
culpability
ation of
“sympathy, sen-
to the
instruction
Hatch v.
of death. See
jury’s verdict
play part
prejudice”
or
should not
timent
in their deliberations.
appellant had
say that
We cannot
predicated
proposition
This
of error is
contemplated
to kill or never
no intention
Brown, upon the decision in Parks v.
taken, because he took
that life would be
Cir.1988).
(10th
majority
The
F.2d
from his roommate
shotgun and shells
accurately determines that
the United
Enmund v.
going to the store.
before
Cf.
Supreme Court decision
States
Califor-
Florida,
Brown,
nia v.
73 L.Ed.2d
(1987), controlling
on this
Anderson,
Judge
in his dissent
issue.
XXVII
Parks majority’s holding
sym-
on the
instruction, accurately
poignant-
pathy
701.13,
O.S.Supp.1987,
Pursuant
ly stated:
and verdicts
the evidence
we have reviewed
proceeds on the
majority opinion
(1) the sen-
that:
determined
focused on the
premise that
imposed under the
of death
tences
pas-
‘any’ in the sentence about
word
any
or
oth-
prejudice,
passion,
influence of
sions, ignoring
and sense of
the words
and, (2)
factor;
the evidence
arbitrary
er
Upon
very
as a whole.
the sentence
findings of the four
supports
jury’s
premise the
slight
hypertechnical
and'
charged, which
aggravating circumstances
large conclusions:
majority constructs
were:
on
instruction is unconstitutional
1)
knowingly created
The defendant
jurors
its face because it commands
than one
great
to more
risk of death
denigrate mitigating circumstances ev-
person;
idence;
general
instruction
2)
committed for
The murder was
spe-
nullifies the
overrides or otherwise
avoiding
preventing
a law-
purpose of
circum-
cific instructions
prosecution;
ful arrest or
stances,
specific instruc-
*16
as well as other
3)
probability that the
The existence of a
Brown,
v.
tions;
and that
California
acts of
commit criminal
defendant would
837,
majority presumes. The pathy’) as the to express terms refers by sentence its
PARKS, P.J., reserves vote. on the basis of the evidence give sepa- his case decided "You must instructed: 4. The (O.R. applicable is to him." and the law which of each individual to the case rate consideration is entitled to have Each defendant defendant. Gilchrist, I arbitrary (‘any sym- Joyce continue to influence adhere factors sentiment, opinion McCarty pathy, passion, prejudice, expressed my or in views in it sensi- v. Thus, arbitrary other factor’). (Okla.Crim. App.1988). join cannot
bly jury against imposing majority cautions the I opin ion it simply arbitrary place to the extent seems to sentence on the basis of upon burden impeach dif- defendant to im qualitatively emotions. That is not proper expert opinions by State meaning imparted ferent from the witnesses through expert use witnesses for the Brown. Brown in instructions defense. Majority, at 570. Nonetheless, its jury was directed not to divorce con- record, agree on this I McCarty is from the render siderations evidence and distinguishable and that no reversible error essentially based an whimsical decision occurred. Here, sympathy. on mere the same di- arbi- any is couched in terms of
rective Furthermore, where, here, the defen- trary sympathy. dant mitigating has offered evidence of ap- in The context which the sentence circumstances, it is unnecessary and con- pears makes that clear. The next sen- fusing give to the the so-called impar- in tence the instruction stresses “anti-sympathy” during instruction the sec- tiality. preceding The state sentences stage ond split as evidenced the recent jurors judges that the flatly alone are the authority between the Tenth Circuit importance Brown, facts of the and that ‘the Parks v. F.2d 1552-59 (10th and worth you Cir.1988), of the evidence and the Fifth Circuit Butler, Byrne v. determine.’ 847 F.2d 1139-40 (5th Cir.1988). agree While I improper it is at 1566. 860 F.2d to focus on use of the “any” words very sys- foundation of judicial our “mere” I find that the use of “anti-sym- an jurors tem is should return a verdict pathy” stage, in the instruction second solely upon presented based mitigating where evidence has been intro- during the trial given and the law them duced, improperly jury’s undermines the through apply the instructions to that mitigating consideration evidence in vio- case, particular they and that be influ- not Eighth lation of the Amendment. See knowledge, enced outside or emo- belief Parks, at 1553. I 860 F.2d also continue jurors tion. In this case the instruct- were expressed views in my special adhere to the during guilt phase trial ed Foster concurrence in they should allow their decision to be (Okla.Crim.App.1989), regarding upon any arbitrary based emotion or other heinous, validity of the atrocious or cruel During penalty phase factor. circumstance; I aggravating however, jurors specifically trial the instructed majority yield as a view matter weigh aggravating cir- stare decisis. in determining appropriate cumstances Therefore, I “anti-sym- find the punishment. Judge I concur with pathy” improper in instruction the second Parks analysis Anderson his stage, vacate I would the death sentence instructions must be viewed as a whole resentencing under the ma- remand for light juror of what a would reasonable Cartwright jority view enunciated perceive. proper It is not on an to focus 479 (Okla.Crim.App.1989). apply very exag- word and isolated it *17 hypertechnical gerated manner.
PARKS, concurring Presiding Judge, dissenting part, part:
I concur affirmance of conviction; however, regard to the “expert” opinion given by Ms.
improper