Green v. State

pal and is not bound in his capac- individual

ity unless such an intention to be bound is

clearly shown to have existed.9

It is clear from the record here Cassity acting was at all times as an

agent between Farmers and Hall and was considered, by any party,

never to be act personal capacity. He is there

fore, stranger contract issue and subject liability arising

is not from the relationship

contractual between Farmers

and Hall.10

We find the trial court erred in overrul-

ing Cassity’s demurrer to the evidence and portion judgment should be

reversed. judgment Appeals of the Court of

therefore judgment VACATED and the

the trial part court is AFFIRMED in in part.

REVERSED

HODGES, WILSON, ALMA KAUGER SUMMERS,JJ., concur.

SIMMS, C.J., LAVENDER, HAR- OPALA, JJ.,

GRAVE and dissent. and, Wayne Danny

Michael GREEN Parker,

George Appellants, Oklahoma, Appellee.

STATE of F-81-797,

Nos. F-81-798. Appeals

Court of Criminal of Oklahoma.

Oct.

Rehearing Denied Feb. 10. Timmons v. Co., Co., Supply Royal 9. Moran v. Globe Ins. 316 P.2d Loeffler-Greene (Okl.1957). (Okl. 1982).

I. PRE-TRIAL ISSUES trial, Prior jointly filed dismiss, a motion alleging their rights under the Sixth and Fifth Amend- ments to the United States Constitution delay were violated of seven months between the time of the offense and the filing of charges by the State. This claim court, was disallowed the trial and we Palmer, Appellant Patti Asst. De- Public agree ruling. with that fender, Norman, appellants. relating The facts to this issue are sum- Gen., Turpén, Atty. Michael C. Tomilou marized as follows: Mosier was stabbed to Liddell, Gen., Gentry Atty. Asst. Oklahoma death at penitentiary September the on City, appellee. September On appel- the prison

lants were discipli- sentenced in a nary (90) proceeding ninety days solitary OPINION confinement as punishment administrative PARKS, Presiding Judge: for the offense. After removal from soli- tary confinement, appellants placed in appellants, Wayne were The Michael Green segregation, Parker, administrative and the investi- Danny George jointly were gation prison was transferred from author- in by jury Court Pitts- tried the District of ities to Oklahoma, the Oklahoma State Bureau of In- County, burg Case No. F-81- 16, 1981, vestigation. April appellants On 120, for the of Murder In First crime the charged were in the District of Pitts- Court Degree. The jury returned verdict of burg County for the offense in of Murder guilty punishment by and set at death le- Degree. First the Trial commenced on drug injection appellant. thal for each The 16, 1981, September Septem- and concluded trial court sentenced the in ac- ber jury’s cordance with the verdict. course, are, the We concerned with stabbing case the This arose from brutal passage the com- of seven months between Lynn inmate Mosier death of Arthur at filing mission offense and the of this Penitentiary September McAlester State charges However, appel- by the State. 5,1980. Evidence at trial revealed that the lants’ reliance on the Sixth Amendment serving both of were appellants, whom unavailing. right speedy is trial prison terms, lengthy attacked Mosier (Okl.Cr.1977), Edens, 565 P.2d 51 State v. him the west cell house and stabbed seven- we held knife and a teen times with a butcher pro- “sticker,” requirement speedy of a weapon apparently trial a home-made tected the United States Constitution piece from a of wire. Mosier fashioned back, appli- not his and Oklahoma Constitution is stabbed the chest and was this, pre- wherein Two inmates cable in cases such as brutally was slashed. throat right delay is stabbing accusation involved. from their cells. witnessed trial, protected by speedy both testified the “sticker” One inmates following States the at- Sixth Amendment United tossed into his cell II, 20, of the it and Art. tack, threw back out Constitution quickly that he but later, is ap- of the State Oklahoma run. Constitution Moments onto terms, by express application, limited in and asked the in- at cell door peared “ac- to an and one is not an “accused” he seen. When inmate mate what had cused” information or indictment nothing, until an he had Green walked replied seen filed, person is in actual or where away. custody has their They Hayes been arrested case. claim would have prosecution course of of the offense regarding testified their whereabouts dur- question. ing the time of the murder. It is asserted Hayes peniten- was released from the Id. at 52-53. Accord United States tiary sometime between the murder and Marion, 404 U.S. S.Ct. filing charges Pittsburg County (1971). L.Ed.2d 468 We held Owens v. Subsequent District Court.2 (Okl.Cr.1978), efforts to lo- 588 P.2d 581 that an unsuccessful, Hayes proved cate Mr. ac- lock-up of administrative an inmate after cording appellants. alleged of a crime not commission does arrest, trigger constitute an so as to agree preju We do not that actual protections of the Sixth Amendment. Ac- sufficiently dice by appel established Duke, cord F.2d 386 United States First, lants’ evidence. there was no show (5th Cir.1976). ing by appellants that the witness could Though the Sixth Amendment have been pre-accusa obtained but for the speedy guarantee trial does not extend to delay. tion e.g. supra Owens v. pre-accusation delays, process “the due Second, at 583-84. testimony of Mr. may clause under some circumstances re Hayes, according proof to the offer of sub quire charges [oppres dismissal due to defense, merely mitted would have pre-accusation delay.” Cooper v. sive] testimony constituted cumulative of that (Okl.Cr.1983) prison offered other appel inmates that added). (emphasis process Under due anal yard lants were in the at the time of the ysis, compelling the test is an ac whether murder. governmental cused to stand trial after a This claim of error has no merit. filing delay charges violated “fundamen conceptions justice the tal which lie at II. political base of our civil and institutions community’s ... which define the sense of ISSUES RELATING TO THE GUILT decency.” play fair and v. United States PHASE OF TRIAL Lovasco, 783, 790, 431 U.S. 97 S.Ct. Appellants argue next the trial (1977). 52 L.Ed.2d 752 funda These by failing court committed reversible error justice mental notions of are offended jury to issue a instruction on the defense of when the accused demonstrates actual trial, appellants attempted sup alibi. At to prejudice delay from an on unreasonable port they this defense with that evidence 789-90, part the of the State.1 Id. at 97 prison yard were seen in the at time of the S.Ct. at 2048. also v. See United States However, appellants the murder. offered (8th Cir.1979). Taylor, 603 F.2d 732 The requested no regarding instructions this is requirement threshold the accused must sue, they object did nor to the instructions is, however, prejudice, establish actual for delivered the trial court. “proof prejudice of actual makes a due ripe process adjudi claim concrete and repeatedly We have held that Lovasco, cation.” See United States v. counsel for opin- defendant are of the [if] supra 431 U.S. at 97 S.Ct. at 2048. ion that additional instructions should be Appellants allege prejudice given jury, duty from the dis- it is their to Hayes, appearance they writing, of Richard whom reduce them to submit them to judge, request they “material to the trial and characterize as a witness” that be Const, II, 6, motion, today joint pre-trial In their We also hold that Okl. art. also they requires "justice asserted were unable to locate an inmate that shall be adminis- which However, Bobby named Horn. Horn was dis- delay," only tered without ... forbids unreason- and called as a covered defense witness. He delays by able and will be construed at trial that he had testified Parker in the seen and analysis under the noted above. prison yard around the time of the murder. placed the burden tions plained the failure lants’ favor. appellants guilt also was error, Okl.Cr. lant and were sonable doubt innocence should quoting, Sheehan v. 1962), Wolf York v. prived ion tion will not be reversed that cluding tion of given. Court Criminal struct the essential elements (1928) (in herein unless it the failure of the trial court to in- State, prejudiced specifically charged that law, If correct instructions which were give 172 P.2d 809 a substantial adequately jury they light presumption Furthermore, defense coun the defendant has been de- the absence of a it 375 P.2d beyond a an alibi instruction clearly appears upon be resolved fail to held of the Okl.Cr. Appeals] thereby). The instruc all matters. some material the State advised regarding reasonable do right. entire (1946). 312, 320, this, is of the in the offense, unless record, innocence, a See also any guilt request, (Okl.Cr. jury convic- 269 P. doubt, given, appel appel prove ques- opin- [the rea not ex in- on nent trial kill Mosier. The motion was must ence of Regarding to meet this burden. teriality, have ered Smith v. 1979). new Title 22 which he would not Seventh. When upon cases A ered, substantial dered an issue of fact has gence have court which trial has been had part: (Okl.Cr.1984). Appellants evidence, bear court, ^[*] changed trial only: against material we have probability the burden the statute’s also when a ^[*] application rights discovered if Robison presented ^[*] defendant held new have been verdict jury’s with reasonable affirm that requirement evidence is power in the # proving before defendant, states, at has See verdict. denied newly trial, n have prejudiced, which his been ren- following appellant trial grant (Okl.Cr. discov- discov- ruling. of ma- would failed exist- perti- upon ^[*] dilli- ... at the affidavit and the evi- argu both full unrestricted sel was allowed hearing, Minister testified that he dentiary theory of defense. regarding ment this Mosier, using a instructions, alone stabbed butcher therefore, We, say cannot testimony wholly knife. whole, so jury, that a as a misdirected testimony of with both the inconsistent instruction, give absent a to an alibi failure prosecution witnesses miscarriage justice in a of request, resulted defense Furthermore, killed the two men Mosier. See right. 20 denial a substantial of weapons that two medical examiner stated O.S.1981, assignment This of er 3001.1. § stabbing; the in Minister were used is without merit. ror only have one. We have claimed to used III. grant held decision to a motion that the newly new trial on discovered evidence THE MOTION ISSUES RELATING TO sound of the trial rests in the discretion TRIAL NEWLY FOR NEW ON (Okl. v. P.2d court. Guthrie 679 278 DISCOVERED EVIDENCE Cr.1984). light of substantial incon the 1,1982, appellants filed On December the claims, in Minister’s we cannot sistencies newly new joint motion for trial based in say court its discretion the trial abused motion, they evidence. In the discovered e.g. Rushing v. denying the motion. See Minister, peni- an inmate the Frank claim (Okl.Cr.1984). 842 676 P.2d murder, actually of tentiary at the time the Mosier with butcher stabbed and killed IV. by supported Minis- knife. The motion was TO THE ISSUE RELATING affidavit, to the in which he confessed ter’s OF EFFECTIVENESS hearing on De- evidentiary crime. At an TRIAL COUNSEL 21, 1981, he Minister testified that cember they denied Collinsworth, Appellants also assert were Randy Mosier. alone killed right to Amendment effective inmate, their he saw Minister Sixth another testified through aggravation assistance of counsel errors the dence as the state has made prior by and omissions committed the two attor- to known defendant his trial represent neys appointed sentencing pro- to them. How- admissible” in shall be the ceeding. O.S.1981, ever, examined 701.10. we have this issue under This stat- § Const, Supreme by ute, together II, the announced standards with Okla. art. v. Washington, Strickland Court in contemplates that a defendant U.S. 104 S.Ct. 80 L.Ed.2d 674 provided murder case be with a (1984), assignment this and find of error is summary sup- of the intended evidence to without merit. port alleged aggravating circumstanc-

es, a list of the witnesses the State might V. call. recently we have this requirement, although held that latter RELATING TO THE ISSUES SENTENC- nature, may be by constitutional waived PHASE OF TRIAL ING timely to failure raise the constitutional 13, 1981, July prosecuting On attor- Standridge violation. See ney announcing of filed a Bill Particulars 761, 764, (Okl.Cr.1985). P.2d Accordingly, pen- to seek State’s intention the death object we hold likewise that failure to to alty. prosecutor alleged Bill of notice, pre-trial hearing lack of either at a attempt prove he would Particulars that challenged or at time the evidence is following aggravating circumstances: offered, will result in waiver of this statu- (1) appellants that the were convicted both e.g. Cartwright See tory right. involving threat felonies use or (Okl.Cr.1985). Absent an (2) person; violence to the that the murder defense, objection will not second heinous, cruel; especially atrocious or guess prepare defense counsel’s decision to (3) by per- the murder committed for trial without formal notice of the evi- serving impris- sons who were sentences of aggravation. Nuckols v. dence Cf and, (4) felonies; onment on conviction of 469 n. ap- a probability existence of that the appellants Counsel for failed raise lack pellants would commit criminal acts vio- during and, either of notice before or trial continuing lence that would constitute a therefore, assignment of error is with- society. threat 701.- out merit. 12(1), (4), (7). (6) and At the end deliberations, stage second B.

found all four circumstances sufficiently proven, had been sen- next Appellants’ claim deals with the ad- tenced each death missibility of evidence used the State in drug injection. lethal proving aggravating circumstances al-

leged. complaint Depu- Their chief is that A. Tim ty give West allowed Warden was to objection, opinion, his over defense Appellants claim the death sentences probably both Green and Parker would permitted stand, cannot be to as State against future acts commit of violence ei- provide failed to notice of the it evidence prison Ap- ther officials or other inmates. support aggravat- intended to use of the pellants personal- maintain never that West alleged. circumstances The Bill of Par- any ly observed acts of violence committed simply ticulars filed State listed and, therefore, or Parker his statutory circumstances opinion was under 12 inadmissible O.S. notice, claim, language. appellants This disagree. 2602. We capi- §§ was under the insufficient Oklahoma tal sentencing scheme. O.S.1981, 2701, provides, Title true, claim, testifying appellants

It is If the witness is not as an provides, testimony opin- that our form “[o]nly expert, statute such evi- in the opin- judge the discretion of the trial or inferences is limited to those within ions testimony. admit the Id. at 29. are: or inferences which ions Rationally perception based on the say We cannot the trial court witness; regard. its discretion in this abused Cer determining a clear Helpful knowledge appellants’ tainly, West’s of the understanding testimony of his or prison behavior was limited to official However, of the fact issue. supervi the determination held records. we have knowledge,” “personal within sor has statute must be read Subsection one of this meaning knowledge section if the O.S.1981, 2602, conjunction with acquired is from records over which he or states: which supervisor. e.g. Maytubby she is See testify may not to a matter A witness (Okl.Cr.1983).3 State, 665 P.2d 849 Fur introduced sufficient unless evidence is thermore, opinion helpful in West’s was finding personal support a that he has determining issue in the a material sentenc knowledge of the matter. Evidence to is, ing proceeding, probability personal knowledge may consist of prove commit acts these would future himself. testimony of the witness the^ say the trial court of violence. We cannot provisions subject rule This to admit this evidence. erred its decision of this Code. 2701] [section claim Appellants improp also other opinion argue that West’s Appellants during hearsay er was admitted the sen any personal knowledge was not based on stage none tencing of trial. required by perception, as sections 2602 or were met with an alleged these errors ob 2701(1). argue They further the evi- and, accordingly, they jection at trial will helpful to a clear under- dence was not appeal to this Court. not be considered on standing testimony either of West’s (Okl.Cr.1983). P.2d 649 Orgill v. in the case. material issue C. passage of the Evidence Prior to prohib law rule the common assignments Code Appellants raise four opinions by lay witnesses iting admission of challenging the instructions deliv of error extremely note, Under the for phase restrictive. We in the second of trial. ered rule, testimony had to however, mer the witness’ be counsel failed to that defense personal perception grounds on the specific objections on the based make further, witness, given asserted, opinion could not be failed to file and the now covering upon requested instructions regarding a matter which written Accordingly, opinion. these issues equally competent to form an those issues. preserved appel properly P. 4 Okl.Cr. have not been See Colbert rule, 375 P.2d at 287. late review. (1910). The new as announced Wolf v. Furthermore, allega have examined substantially Legislature, has liberal error and find the for fundamental Opinions tions requirements. ized the admission gave correct and sufficient instructions under the Evidence Code by lay witnesses jury in its consideration of guidance to the they are not rejected only when should be Chaney v. sentence. See perception of the rationally based on the (Okl.Cr.1980). also 279-80 witness, superflous in the opinion is or the Davis v. to the trier it would of no value sense be al., Cleary et. McCormick of fact. See D. Evidence, opinion If pp. 27-29. an § issue of appellants next raise an The perception of the rationally on the based jurisdic- impression in this apparent first helpful jury, it is lay witness the State constitu- the Federal or Maytubby es under either v. State that admis- We also held in a does not constitute viola- Id. at 851. sion of this evidence tions. right to confront witness- tion of the 1040 argue Appellants only that it error to der constitutes one factor which we

tion. was consider, permit jury aggravating must consider in this case. circumstances, that murder was “[t]he Id. at 786. At least one other State has person serving a committed a while aggra- disallowed a combination of these imprisonment sentence of on conviction of case. See vating capital circumstances a felony”, “the a and that defendant State, 1251, (Ala. Cook v. 369 So.2d 1256 involving previously felony convicted of a 1978). pair- Also disallowed has been the person.” the use or threat violence to the aggravating circumstances that O.S.1981, 701.12(1) (6). Sup- See 21 and prevent murder was committed to avoid or argument port is found for this in the arrest, lawful murder and that Supreme United States Court’s statement disrupt committed to and hinder the lawful Texas, 262, Jurek v. 428 U.S. 96 S.Ct. governmental any exercise of function or 2950, (1976) that the sen- 49 L.Ed.2d 929 Goodman, enforcement of laws. State v. tencing procedure “[guide] must and [fo- (1979); 298 N.C. 587 S.E.2d objective jury’s consideration of cus] (Fla.1981). Francois v. So.2d 885 particularized indi- circumstances of the Engberg Contra 686 P.2d 541-554 and vidual offense the individual offender (Wyo.1984). impose before it can a sentence of death.” Appellants argue that these same Id. require- at at 2957. This S.Ct. principles case, applicable are but this jury ment is not fulfilled when the consid- disagree. we We note that the Florida ers the same act or an indivisible course of Supreme rejected Court an identical claim aggravating conduct to be more than one Delap (Fla. 440 So.2d 1242 However, disagree that circumstance. 1983), in which the Court wrote: theory “overlapping” applica- has argues tion under the at bar. defendant that there was a facts case doubling-up aggravating cir- of the same Appellant principally relies on the Florida cumstance, judge as the trial found that Provence v. Supreme opinion in Court capital felony was committed a cert, (Fla.1976), de- 337 So.2d 783 person imprisonment under sentence of nied, U.S. 97 S.Ct. previously and that the defendant was Provence, (1977). In L.Ed.2d felony involving convicted of another aggravating found existence two upon prin- use of violence. He relies (1) circumstances under Florida law: ciples set forth in Provence v. the murder was committed in the commis- cert, denied, (Fla.1976), So.2d 783 (2) robbery; sion of a and the crime U.S. 97 S.Ct. 53 L.Ed.2d 1065 pecuniary gain. was committed for Provence, (1977). we held that Fla.Stat.Ann., 921.141(5)(d) (f) capital felony commission of a in the (West). The Florida court noted that both robbery course of a and the commission aggravating circumstances referred to the capital felony pecuniary gain of a aspect same of the defendant’s crime. The only aggravating would constitute one Court then reasoned: factor, aggravating since both factors re- Consequently, a one who commits aspect ferred to the same of the defend- robbery crime in the course of a will ant’s crime. always begin aggravating cir- with two being im- factors of under sentence of against cumstances him while those who prisonment being previously convict- any commit such a crime the course of felony involving ed of another violence felony other enumerated will not be simi- aspect do not cover the same of the de- larily disadvantaged. Mindful that our history. fendant’s criminal The defend- penalty decision death cases must re- impris- ant simple summing could be under sentence of sult from more than a having onment mitigating circum- without been convicted of Also, felony involving a de- that Provence’s violence. stances ... we believe felony pecuniary motive at the time of the mur- fendant could be convicted of filed,4 involving being appeal charged without was violence under a this Court is imprisonment. aggra- sentence of These obligation making following with the of the vating separate, are circumstances and determinations each case: including weighing factors in the two 1. the sentence of death Whether was process doubling does not constitute of imposed passion, under the influence of aggravating circumstances. factor; prejudice, any arbitrary or other Id. at 1256. We find the well-reasoned supports Whether evidence approach disposi- Florida Court of the to be jury’s judge’s finding or of a statutory Accordingly, assign- tive of this claim. this aggravating circumstance as enumerated ment of error is without merit. act; in this

E. 3. Whether the sentence of death is ex- Next, appellants prose- claim that cessive or disproportionate penalty permeated cutorial misconduct so their trial imposed cases, in similar considering judgment imposed that and sentence on both the crime and defendant. or, be alter appellant each should reversed sentences natively, the death should be A. disagree. We modified. We note that alleged were none of the errors met with statutorily-re Turning to the first objection. alleged contemporaneous This determination, quired we find that the ver properly preserved for error has not been of imposed dicts death not under were furthermore, and, review we are unable to passion prejudice. influence of or The jury “their combined effect was conclude that pas it allow instructed that could not adversely so prejudicial as affect prejudice verdict, sion or to influence its impartiality fairness and of fundamental and there is record no indication the that the proceedings....” Cobbs v. “passion, preju the verdict was based on also Robi dice, any factor.” 21 other arbitrary P.2d at supra son O.S.1981, 701.13(C). § assignment error is merit. This without

VI. B. SENTENCING REVIEW MANDATORY next sufficient We consider whether evi- support O.S.1981, dence was adduced the State Pursuant 701.- § alleged.6 13(C), each5 circumstance was in effect at the time this which are, course, Legislature, 4.We aware stage requires to face him orid of trial —and session, statute, allowing revised the this last It also penalty time. de- death for a second penalty to remand death cases for this Court right prives to have this appellant an of the re-sentencing, if error is found in the second disproportionality be- sentence due to modified trial, reducing scope stage penalty appellant’s and "the im- tween offense mandatory Court’s Laws, review. See 1985 Okla.Sess. cases, considering the posed crime in similar (to be codified at 21 O.S.1985 ch. 265 701.13). 701.13(C)(3). defendant.” applica- Supp. retroactive would, therefore, Application this new statute pending of this new statute to those cases tion Missouri, Kring v. su- be unconstitutional. Cf. passage appeal at the time of its would offense, law, (old pra at the time in effect post statute an ex law under render this facto degree charge murder provided of first ' that on a Const, I, Supreme art. cl. 1. The U.S. operated degree guilty plea murder of second procedural change that a which Court has stated murder, degree acquittal even if an of first right injuriously affect a substantial does not law, aside; passed plea new set was later is entitled at the time of the which an accused offense, plea provided if the after the retroactive; though post not ex offense is facto aside, first-degree had for could be set murder, held, new trial deprive it does of a but it is otherwise if him change facto, post as the de- ex Missouri, right. Kring v. 107 U.S. substantial 221, right.) prived of a substantial defendant (1883); 27 L.Ed.2d 506 2 S.Ct. Beazell Ohio, v. (1925). U.S. 46 S.Ct. 70 L.Ed.2d challenge the sufficien- 5.The do not case, Legislature has taken In this cy supporting cir- of evidence right— away appellant a from this substantial right imprisonment to life of modification the sec- error suffered appellant who an appellants were Both found to have been scenario. Green’s contention without merit. felony involving a “previously convicted of person.”

the use or threat of violence to the regarding The same cannot be said Par- O.S.1981, 701.12(1). support of this § argument, however. The evidence ker’s allegation, evidence was introduced show- presented against support Parker in of this ing of in Green was convicted Murder aggravating only consisted of circumstance Degree in been First and Parker had judgment for three and sentences two kid- Kidnapping, napping escape of two counts of Af- convicted convictions and one convic- No ex- Felony, of a tion. evidence was introduced to ter Former Conviction surrounding plain the circumstances these Institution, Escape from a Penal all crimes. In Brewer 650 P.2d 54 1976. (Okl.Cr.1982), explained State’s bur- insufficient Green’s contention that evi- proof regarding aggravating den of support presented dence was of this wrote, Judge Bussey circumstance. for a aggravating circumstance avails him noth- Court, unanimous ing. convicted of Murder in the Green was required go beyond ... the State is to Degree pursuant O.S.Supp.1973, First to 21 simple proof that a defendant in a 701.1.7 § prior felony case had convictions to es- judgment and sentence admit The tablish the circumstance. against ted does not reflect under additionally prove The State must which subdivision of the statute Green was prior felonies involved the use or However, convicted. it is clear that Mur person. threat of violence to the statute, Degree, der the First under that prior fact that the felonies were commit- involving or was a crime the use threat of ted and that the defendant committed person any possible properly easily prov- violence to the under them are and most witness, against by perpetrated any cumstance that the "murder was committed or when person serving imprison- being intending a while a sentence of kill human while such wit- nesses; felony.” ment on conviction of a 701.12(6). perpetrated against When 4. the President or America, Vice President of the United States of any interpret- official in the line of succession to the Appellants 6. also claim we have been America, Presidency of the United States of these circumstances in an arbi- state, manner, trary Governor or Lieutenant Governor of this so as to render them unconstitu- vague. previously judge any appellate tionally or We have disallowed of court court of record state, Cartwright any person actively engaged this claim. See of this or in a (Okl.Cr.1985). campaign Presidency also 555 n. Nuckols v. for the office of the or America; n. 4 Presidency United of Vice States by any person perpetrated engaged 5. When aircraft, train, pirating of an bus or other 7. This statute stated: in the regularly commercial vehicle for hire which Homicide, perpetrated when without authori- transports passengers; design ty premediated of law and with a perpetrated by person who When effects killed, person any effect the death of the or of being exchange the death of a human being, degree other human is murder in the first value, money any thing or other of or following in the cases: person procuring killing; perpetrated against any peace 1. When offi- person under a Murder sentence of cer, prosecuting attorney, employee corrections imprisonment penitentiary; life engaged performance or fireman while in the of against perpetrated duties; 8. When two or more his official arising persons out of the same transaction or perpetrated by committing 2. When one closely occurrence or series of events related in attempting rape, kidnapping to commit for the location; extortion, time and degree, purpose of arson in the first perpetrated against 9. When a child while in robbery following death armed or when occurs age violation Section Title 21 of the Okla- the sexual molestation a child under the Statutes; (16) years; homa of sixteen perpetrated against any murder the unlawful 10. Intentional 3. When witness any subpoenaed testify any preliminary use a bomb or of at hear- malicious similar explosive. ing, grand proceeding against trial or procures killing O.S.Supp.1973, 701.1. defendant who kills or say that the crime involved the use or through judgment and en the use of the person. the element that the of violence to the sentence. threat felonies involved the use or threat Thus, cases, many allege prior summarily easily is not so violence convictions, more, very without could necessary that proven. It is therefore finding by result in an erroneous well the present the sufficient information State previous sup- fact that trier of felonies concerning prior felony the convictions to circumstance, port aggravating the support its contention. when, they in truth do not. This would necessity The for additional informa- gross miscarriage justice. result in a of concerning prior tion the nature of the at 62-63. Id. to be made known to the trier convictions We cannot characterize either kid examples. fact is obviated two of napping escape or as crimes which invari example person the of a First we take ably involve the use or threat of violence who, appellant, not unlike the stands person, as we the can the murder convic de- for murder in the first be sentenced support aggravating tion used to the cir prior rape. of gree with a conviction against cumstance Green. Our Oklahoma might led to assume from One be provides person escape “[a]ny statute necessarily rape crime that face of the imprisoned charges having awaiting been of violence to the use or threat involves prisoner awaiting having trial or been or however, that possible, It is the victim. Depart confinement sentenced to with rape stemmed not from conviction escapes from such ment of Corrections who part on the of or threats of violence acts confinement, actually confined either while defendant, through inter- but sexual therein, large permitted to at or while be incapable with one of consent. course awaiting transportation case, trusty, or while rape conviction would such a escape guilty of from support aggravating circum- thereto ...” not O.S.1981, 443. We penal stance. institution. § offense say a conviction for this cannot example that of a A second could be necessarily involves “use or threat of vio before the trier person who stands person.” Accord Lewis v. stage lence to the capital sentencing with fact in the (Fla.1981). 432, 438 Fur sec- 398 So.2d prior conviction of murder thermore, kidnapping stat again, as in the above under Oklahoma degree. ond Once utes, kidnapping its if imply may seems to example, the crime one be convicted How- kidnapped the use or threat of violence. under twelve person face was con- ever, possible being that the murder old, it is held. years and consented to fact may have resulted from the O.S.1981, 741(3). viction See § defendant, driving under while that the failed to It is clear that State having intoxicants after the influence of circumstance, as it aggravating prove this driving un- previously convicted been re Legislature related to Parker. intoxicants, wrecked der the influence O.S.1981, us, 701.- quires pursuant to § the death of and caused his automobile 13(E) imprisonment those modify to life person passengers. The caused aggra one or more of the cases which passengers while in the com- death of sufficiently were not vating circumstances (ie. driving un- felony while mission of a State, 659 P.2d Boutwell v. proven. See intoxicants, second influence of der the must, sentence Parker’s 11-902), 322 O.S.1981, offense, See, 47 imprisonm to life accordingly, modified be in the sec- supporting a murder thereby conviction, ent.8 no one would degree but ond Statute, the Brewer It is our not circumstance. Brewer were to procedure enunciated in

8. The prove Brewer, requires be- opinion, the State to supra which prospectively. at applied be defendant yond doubt that complaint goes "[t]he a reasonable appellant’s involving felony previously of a aggravating convicted proving sufficiency of evidence designed high cruel means to inflict a degree pain with utter indifference challenged is the cir- Next of, to, suffering enjoyment even or especially cumstance that the murder “was is intended to be in- of others. What heinous, atrocious, or cruel.” 21 capital crimes where cluded are those This circumstance 701.12. capital commission of the the actual applied of this properly to the facts accomplished by such addi- felony was case, sentence of death will and Green’s9 apart crime tional acts as to set the disturbed on this basis. not be the norm of felonies the from Parker, case, for some In this crime, pitiless which conscienceless reason, Hosier outside a accosted unknown unnecessarily torturous to the vic- is home- of cells with a butcher knife and row tim. repeatedly “sticker.” The two men made screaming struggling vic- their and stabbed 616 P.2d at 1167-68. We have consist tim, inflicting their this trial that this murder was within the twenty” of three hundred er testified slash and back. doctor, considering feet, Mosier’s throat. Green After the victim had fallen during sixteen wounds to the used the butcher penalty medical severity performed by phase knife to examin- of the chest “top Jones Stafford Cr.1982). ently cially Cr.1983); ^[******] adhered heinous, atrocious, v. v. Ake State, v. 648 P.2d this State, 669 P.2d definition of 663 P.2d at or cruel.” See 1259 299 “espe (Okl. (Okl. 11; body. mutilation of the wounds and accepted appellant’s if we claim Even Eddings suffer], suffering victim did not claims that Green [that major to consider in subsequent victim is the factor cases make clear that aggravating reviewing this circumstance. suffering major the victim is not the rejected agree. not We a similar We do aggra regarding we this factor consider Nuckols v. argument in 690 P.2d at vating circumstance have ... [We held] wrote, Judge in Brett for a which killing” is the “manner of a relevant Court, that: unanimous consideration, as well as the circumstanc meaning ag- explained the of this We surrounding es the homicide ... Stafford v. Eddings gravating circumstance (Okl.Cr.1983). 669 P.2d 299 rev’d (Okl.Cr.1980), examined the killer’s atti We also have 104,102 grounds, on other 455 U.S. S.Ct. specially pitiless tute learn if it was or (1982), modified, 71 L.Ed.2d 1 cold. Boutwell v. P.2d (Okl.Cr.1984). In Eddings P.2d 342 State, (Okl.Cr.1983); Jones v. given to a adopted the definition similar by circumstance the Florida We first note that Green’s asser Dixon, State Supreme Court his victim did not suffer is unten tion that (Fla.1973): So.2d 1 anguish with as the able. Mosier screamed meaning of such feel that [W]e weapons repeatedly were rammed into two knowl- terms is a matter of common Then, back. after he fell to his chest and ordinary edge, man would so that an ripped ground dying, savagely intend- guess not have to at what was a butcher knife. The man his throat with hei- interpretation ed. It is our that killing, and cold and ner of this Green’s extremely nous means wicked attitude, by pitiless as evidenced his slash evil; shockingly that atrocious means vile; already mortally ing the throat of and that outrageously wicked modifying person.” 21 Since we are Parker's death sen- violence to the the use or threat of tence, remaining aggravat- Brewer, 701.12(1). our discussion of supra, See also only ing to Green’s circumstances will relate at 62. sentence. victim, finding support jury’s cases affirmed10 or by wounded modified11 aggravating circumstance. Court, of this this and find the sentence for Green proportionate. to be Accordingly, appellants, as to both find that sufficient evidence We further jury convicting judgment appel- each prove “ftjhe was raised State to Degree lant of Murder the First is AF- probability the defend- existence of a FIRMED. The sentence of death lethal ant would commit criminal acts of violence injection appellant for Green is AF- continuing constitute a threat to would FIRMED. The sentence of death lethal O.S.1981, 701.12(7). society.” 21 Parker, injection appellant previous- important It is to note that be, noted, is, ly should hereby the same who, judge, jury, with the heard all trial imprisonment. MODIFIED to life regarding the evidence circumstance, “there wrote that is reason BRETT, J., concurs. likely to kill in the to believe [Green] slightest for the of reasons. He is future BUSSEY, J., concurring part, dissent- regard cunning and has no for human life. part. danger to all around him as He will be long Report Judge, Trial as he lives.” BUSSEY, Judge, concurring part, dis- p. in this case shows that 6. The record senting part: Green, although penal confined in a institu tion, agree I pose society, appellant a threat to While that Green’s sen- continues among affirmed, those within that institution. even tence should be I must dissent to previously Evidence revealed Green had appellant the modification of Parker’s sen- Furthermore, prison threatened officials. tence for two reasons. prior history both Green’s criminal First, State, supra, in Brewer v. killing support aggra manner of this clearly procedures stated that Court vating Eddings circumstance. v. applied pro- enunciated therein were to be State, 1169; State, P.2d at 616 Robison v. spectively: 677 P.2d at 1088. following pro- We therefore hold that the aggravating All of the circumstances as procedure concerning cedure must be the appellant sufficiently sup- are allegation of 21 the State’s ported by the evidence. 701.12(1) .capital in this and all future /¿at added). (Emphasis cases 63. ... C. in the instant case was conducted The trial Finally, compared we have the sentence 16-21, 1981; whereas, previous September Brew- assessed this case with those State, nom., Brown, (Okl.Cr.l985); (10th Chaney 702 v. F.2d 10. Liles v. P.2d 1025 730 1334 State, (Okl.Cr.1985); Cir.1984). Cooks v. 699 P.2d 653 State, (Okl.Cr.1985); Banks v. 701 P.2d 418 Cart State, (Okl.Cr.1985); wright v. 695 P.2d 548 Bro State, (Okl.Cr. 1984); Kelly P.2d 11. v. 692 State, (Okl.Cr.1985); gie v. 695 P.2d 538 Bowen State, (Okl.Cr. 1980); Eddings v. 616 P.2d 1159 State, (Okl.Cr. 1985); v. State, O.B.J. 55 2520 Stout v. (Okl.Cr.1984); modified, 688 P.2d Mor 342 (Okl.Cr.1984); 693 P.2d 617 and Nuckols v. State, (Okl.Cr. gan No. Nov. v. F-79-487 State, (Okl.Cr.1984); 690 P.2d 463 v. Robison State, 1983); (Unpublished); Johnson v. 665 State, State, (Okl.Cr.1984); 677 P.2d 1080 Dutton v. v. State, (Okl.Cr.1982); v. 663 P.2d 815 Glidewell (Okl.Cr. 1984); 674 P.2d 1134 Stafford (Okl.Cr.1983); State, P.2d Jones v. 660 P.2d 738 State, (Okl.Cr.1983); 669 P.2d 285 Coleman v. State, (Okl.Cr.1983); P.2d 343 634 Driskellv. 659 State, (Okl.Cr. 1983); 1126 668 P.2d v. Stafford State, (Okl.Cr.1983); P.2d Boutwell v. 659 322 State, (Okl.Cr. 1983); P.2d Davis v. 1205 State, (Okl. (Okl.Cr.1983); 658 P.2d 482 Munn v. State, (Okl.Cr.1983); State, Ake v. Cr.1983); State, (Okl.Cr. Odum v. 651 P.2d 703 (Okl.Cr. 1983); State, 663 P.2d 1 Parks v. State, (Okl.Cr. 1982); 640 P.2d 533 Burrows v. (Okl.Cr.1982); Jones v. 648 P.2d 1251 (Okl.Cr. 1982); Franks v. 636 P.2d 361 (Okl.Cr.1982); Hays v. 617 P.2d 223 1981); P.2d 588 Irvin v. (Okl.Cr.1980); Chaney 612 P.2d 269 (Okl.Cr. 1980), grounds, on other sub modified August 18, er was decided on 1982. There- fore, inapplicable Brewer is to the instant WOODS, Appellant, O’Neal case, required and the State is not to “addi- tionally prove prior felonies in- Oklahoma, Appellee. STATE of

volved the use or threat of violence to the person.” No. F-83-555. Second, assuming even the State Appeals Court of Criminal of Oklahoma. prove

failed to one of the cir- Parker, applied appellant cumstances I Jan. opinion am of the that the death sentence As Corrected Feb. should not be invalidated. In Zant v. Ste- phens, 462 U.S. S.Ct. 235, (1983),

L.Ed.2d the United States Su-

preme upheld Court the sentence of death Georgia aggra-

in a case where one of the circumstances,

vating which the relied

upon, unconstitutionally was held to be

vague. The Supreme United States Court

accepted Georgia Supreme the view of the

Court and stated: accept

We that court’s view that the sub-

sequent invalidation of one of several

statutory circumstances automatically require

does not reversal penalty, having

of the death been as-

sured that a death sentence will be set if aggravat-

aside the invalidation of an penalty circumstance makes the arbi-

trary capricious. Clearly, penalty the death in the instant (cid:127) imposed arbitrarily. ap-

case was not felons,

pellants, serving both convicted penitentiary

time in the at the time of the

slaying, viciously stabbed the victim six- (16) times, severely mutilating

teen

body, ruthlessly and then slashed his

throat.

Therefore, I opinion am of the

sentence of death should be affirmed for appellants.

both Smith, Jr., Appellate

Thomas G. Asst. Defender, Norman, appellant. Public

Case Details

Case Name: Green v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Oct 9, 1985

Citation: 713 P.2d 1032

Docket Number: F-81-797, F-81-798

Court Abbreviation: Okla. Crim. App.