Hain v. State

thеir silence means that that was not their jeopardy- me double upon problem, Wade, Having I intent. written under- apply. not even does Lumpkin’s Judge quest. Fundamen- stand a most effec- Lumpkin has written Judge says adopt we must a new or tal fairness opinion. in Part in Part/Dissent tive Concur uniqueness due different doctrine “death is different”. disagree I punishment. the third alternative This to “fair- Yes, has made a rush the Court way changes the fundamental doctrine no given has us no Legislature ness” but majori- Judge Lumpkin points to. The opinion a Judge Lumpkin’s option. other ty is correct. it relates to survey of the law as brilliant application retroactive the statute in ef- legal doctrine that

basic underlying offense

fect at the time of the time of the trial. applies

the one that case, Legislature particular

In this wisdom, pass fit to a stat- infinite saw its HAIN, Appellant, Allen Scott possi- or third gave a radical new ute case, is, punishment in the death ble pаrole.

life without Oklahoma, Appellee. STATE on this and During arguments our oral No. F-88-466. cases, has conceded that other the State Appeals of Criminal of Oklahoma. 701.- the amendment of O.S. 10a(5), spoken Legislature April 1993. appear It from event of a reversal. would Rehearing Denied and Mandate that in the event this case were statute Sept. Issued other than the life reversed for reason issue, parole at the retrial or without thereof,

resentencing portion a defendant parole life without

would be entitled to the though the crime occurred

instruction even

prior parole was to the time life without logical to me that

effective. It would seem 701.10a, legislative

if this was the intent on

then it should also have been that intent on under fundamental

701.10. It would seem

“fairness”, proper not be to disal- would parole option

low the life in one without prior

case that occurred to the enactment statute, to reversal allow it but due applica-

in another case. The law and

tion thereof consistent. should be I, deeply perplexing

This case is

quite frankly, try- had a difficult and have time, ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌​‌​‌​‌‌​‌​​​​​‌​​‍upon lеgal not based Judge Lumpkin ably

doctrines has so out,

pointed uniqueness but the absolute Legislature,

this situation. The in an inter- move,

vening passed radically different Obviously,

third alternative. it would have they

been far had indicated that the easier retroactive; would be did

not chose to do so but cannot state that

OPINION LANE, Judge: Hain, Allen was convict- Appellant, Scott in the two counts each Murder ed of Robbery Degree, Kidnapping, First Firearms, Larceny of an Automobile and Degree in the Third and one count of Arson stage jury two trial in the District after a County, Case No. CRF-87- of Creek Court verdicts, Appel- Following guilty in accordance with lant was sentenced He received the jury’s recommendations. Murder, ten each count of death on per Kidnapping, one hun- years count for Robbery years per count for dred Firearms, twenty years per for Lar- count years and ceny of Automobile fifteen degree the third Arson. for challenging brought appeal both imposed guilty verdicts and sentences for crimеs.

During early morning hours of Octo- 6,1987, Lee Sanders and Michael ber Laura Houghton car out- were seated Sanders’ they ap- a Tulsa when side bar men, proached later determined two Wayne Hain and be Scott Allen Robert in the Lambert. Hain and Lambert were lot, waiting nearby house parking to rob Houghton talk- and when saw Sanders and Lambert car. car way forced their into the threaten- ing Houghton knife. with a bar, away Hain drove the car from stopped Houghton gun- then and robbed point. Houghton When resisted the rob- bery, Appellant him the trunk forced into later, Appellant of the car. A while short put stopped and Lambert and Sanders as the trunk well. getting the robbing Houghton

After truck, keys to his two men decided go incident be- back the bar where the gan Houghton’s and take truck as well car. truck Sandеrs Lambert drove the Meek, Tul- Hall and John Thomas Elaine away Springs. from Tulsa toward Sand sa, appellant. for stopped driving a rural He after down Gen., Henry, Atty. Robert Price roadway. H. Carol County Appellant fol- Creek Gen., Dillingham, Atty. Asst. Oklahoma car lowed Sanders’ with Sanders City, appellee. Houghton the trunk. things,

The two men took in- process Sanders’ attempts apply when he clothes, cluding principals some out of her car and of Gregg solely pre-trial put them in the truck. cut reverse One them the certification pro- criminal gas ceedings. line to the car and set it on fire

putting lighted newspaper and a blanket In Gregg, the analyzed dripping Houghton under the fuel line. Georgia system capital banging and Sanders were on the trunk to determine whether problems con- yelling. Appellant and Lambert left fronted in Furman v. Georgia, 408 U.S. area, however, returned a short time 238, (1972), 33 L.Ed.2d 346 later to if burning see the fire was well. Furman, had been resolved. ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌​‌​‌​‌‌​‌​​​​​‌​​‍“the Court held stopped men death two at a friend’s house imposed not be under sentencing proce- Jennings bag and left things belong- of dures that create a substantial risk that the garage. to the victims in They punishment will be inflicted in an Wichita, arbitrary Houghton’s traveled to Kansas in capricious and manner.” Godfrey v. Geor- spending truck. After the five hundred 420, gia, 426, 446 1759, 1764, U.S. 100 S.Ct. sixty-five ($565.00) dollars they which (1980). 64 L.Ed.2d 398 In Gregg, the Court got Houghton Sanders, from the two held: Tulsa, they returned to appre- where Furman held 9, hended that in evening on the of order to mini- October mize the risk that penalty the death A STATUS AS JUVENILE imposed would be on a capriciously se- offenders, lected group of the decision to Appellant’s arguments first series of con- impose guided it had by to be standards cerns the fact that he was seventeen when so that the sentencing authority would the murders of Houghton and Sanders particularized focus on the circumstances were committed. He complains that (Empha- crime and the defendant. reverse procedures certification in Okla- added). sis homa do not sufficiently narrow the class 199, Id. 428 U.S. at 96 S.Ct. at 2937. against of offenders which penal- the death ty may sought; that juvenile execution of a recently We most considered these dic against societal decency; standards of (Okl. tates in Allen v. punishment that the ‘propor- Cr.1991), “fails in the where we held: tionality’ analysis;” and that the classifica- long recognized It has sys- been that a arbitrary standards are capricious. capital punishmеnt tem of must meet disagree Appellant’s We with assessment requirements strict constitutional to be concerning statutes the certification upheld. primary goal The any such process and how relate to imposi- system must be the allowance of individ- punishment tion of this case or other ualized sentencing tempered by a con- case involving the death penalty. discretion, trolled amount of exercisable by the trier of fact. allegation error,

As his first imposition asserts that of the death system capital pun Oklahoma’s penalty against juvenile prohibited by qualifications ishment meets the estab Eighth both the and Fourteenth by Supreme Amend- lished Court and on its ments to the United States Constitution. face is Certainly constitutional. this fact is Specifically he claims that Oklahoma’s re- by evidencеd the multitude of Oklahoma procedure, verse certification pro- cases which have been affirmed vides that a year sixteen or seventeen old is United States Court. See Saffle considered to be an adult Parks, 484, 1257, when he commits v. 494 110 U.S. 108 crimes, certain does not (1990). meet the standard L.Ed.2d comprehensive 415 qualification” for “death set Gregg statutory concerning penalty sections death Georgia, 153, 428 2909, U.S. 96 S.Ct. proceedings, coupled proper instruc (1976). L.Ed.2d 859 Appellant misrepre- tions to the stage purpose sents the trial, reverse guarantee certifica- that the death P.2d (Okl.Cr.1988); Trolinger v. that class only be assessed will apart set them crimes criminals whose Zant v. Ste- “any other murder.” from arguments two Appellant’s next 103 S.Ct. phens, 462 U.S. age concern regard to the effect of his (1983). 235, 251 2743, 77 L.Ed.2d penаlty. death the actual assessment murderers on the re execution of argues has focused He attempted age eighteen at the process and under the certification who were verse narrowing offends the bootstrap requirement crime was committed time the pre-trial preliminary, sentence society into this and that his qualifications standards of Defining the prosecution. standards estab proportionality fails Florida, eligible for potentially Enmund class of offenders lished of 10 (1982). is not a function the death 73 L.Ed.2d That section O.S.Supp.1986, 1104.2. Appellant’s argu disagree. Both of We alleged of merely whether determines his assertion that “ado ments are based on years seventeen fender, sixteen or either blameworthy or children are less lescents as an adult or old, prosеcuted may be apparently should not be than adults” and juvenile. as a treated he should be whether dis for their actions. We held accountable juve aas that classification To the extent Sellers argument a similar pensed with here, then the denied, as nile is State, In v. 809 P.2d 676 all is afforded admittedly young defendant imposition of case considered the that against protections the constitutional involving penalty in cases defen the death death arbitrary assessment years old at the dants who were sixteen as is other defendant. recognized We time of their crimes. although plurality Court processes car- statutory We find that the person of a who has held that execution Appel- present case afforded ried out in the at the time of the of was under sixteen the unfair protection lant double Eighth Amend fenses wоuld violate penalty. Appel- of the death assessment ment, opinion con expressed no security prelimi- aof lant had the added criminals. cerning year seventeen old prosecu- nary as to whether determination Oklahoma, 815, 108 Thompson v. death appropriate, tion as an adult was (1988). 101 L.Ed.2d anything, If penalty concerns aside. an addi- process adds reverse certification Sellers, rejected argument certainty to the entire tional measure of Thompson decision should be extended to process. criminal ages of sixteen and persons between the eighteen. We held: 1104.2, with Section connection previous our general, unpersuaded We are argues Appellant also re- should be disturbed with certification is decisions by standards which reverse spect person to a was sixteen at arbitrary capricious. and who measured are concurring In her in order to time of his offense. Appellant correctly argues that Thompson Justice standards, ], O’Connor any system opinion meet constitutional [in expressed that a national con- provide sufficient the belief of classification must the execution rational sensus exists which forbids standards so as to establish a basis here, any person crimes committed be- argument of for for the classification. His however, In the absence inability point age fore the of sixteen. fails due to his Legis- statutory by the State any portion process expression or of a clear out lature, capital pun- of any of the consti she found the use language which offends By consistently еxclud- protections. have ishment to be unauthorized. tutional We persons years age of who out sixteen held that set standards statutory defini- protect the con commit murder from the appropriate are statute “child”, see O.S.Supp.1987, guarantees of the individual of tion of stitutional (Okl. 1101(1), Legislature we find that fender. A.M.H. 766 P.2d 351 Cr.1988); clearly expressed intention that such its G.E.D. the full first persons subject respect should be As his claim with punishments prescribed proceedings trial, of for voir range Appellant dire his claims the trial court adult offenders. erred when it questioning refused to allow individual of Appellant why offers no reason effective each called in individual order to assess the position. previous we should reconsider our fairly pretrial effect of substantial publici Appellant protеctions afforded the ty. We considered an identical issue process, including certification reverse (Okl. Vowell v. 857-58 appellate separate review of the trial Cr.1986), wherein we held: prior court’s decision to his adult criminal requested voir individual prosecution. 1 societal We believe that the jurors, as well sequestration dire as decency and standards of are interests during them voir dire. did not properly protected system such a right request, though have a to either independently measures whether or not the such be allowed the trial individual offender should be treated as a court.... child an adult. or as To the extent pretrial existence extensive new factors involved indicate that treatment coverage does not itself demand individu- adult, pun an with its incumbent levels al sеquestered voir The crux dire.... ishment, warranted, then standards of the issue is whether defendant can decency proper main morality are [a] impartial jurors.... receive fair An tained. see no reason find that We voir dire exhaustive was conducted ac- scope Appellant’s case is outside the nearly counting pages seven hundred expected result of procedures the various noted, transcript, previously and as employed. impartial apparently jury was selected. FIRST STAGE PROCEEDINGS We find no reason to reach a different Appellant this case. conclusion in does not allegations Next turn to the of error we claim that was denied a impartial he fair or Appellant suggests during which occurred jury. is no There indication that he was Appellant the first of the triаl2. any question any potential unable to ask of jury asserts that errors occurred in the Accordingly, juror. we must that conclude subjected process, selection that he was to through very proceedings the voir dire un- jeopardy, that jury improp- double the was this case dertaken in resulted in the fair erly instructed and that com- the trial court impartial jury and to Appellant which is regard mitted several errors with entitled. admission evidence. We will consider in arguments these the order occurred they next indictment of se jury the at the trial. process lection concerns the fact there that In propositions thirteen eighteen pool and were no called to in blacks serve the brief, Appellant his claims was de- jury that he from which selection in was this ease prived jury of a fair points because he was not made. also out that there privately individually very young people pool. allowed to dire were few voir in the panel concerning the argument members the The crux his he not that did pretrial publicity to impartial which had been not fair jury, receive a and but exposed because there jury pool and were no blacks that the selection consti did not pool jury included in the from the tute a random cross section popula was selected. We do not find either of previously that tion. This issue has the been allegations justify subject opinions these relief. of several from Court. Appellant challenges (Okl.Cr.1988). finding by the the Accordingly, trial P.2d 381 further princi prosecuted by he should court that be an adult consideration this time is barred as pals judicatа. arguing finding that the court’s of res weight argument the the evidence. This appeal III, IV, V, X, XII, not raised on the direct the propositions order 2. These include State, XIV, denying certification. See S.A.H. v. 753 XVIII. XVII and 750 State, 161, P.2d 165 which indicates race or individual v. 736 Moore 873, original denied ages comprising 484 those either cert.

(Okl.Cr.1987), U.S. (1987), pool jury L.Ed2d 163 This absence 212 98 selected. 108 S.Ct. or the criteria which adopted ground deny on which to alone is sufficient discussed by a defendant order proven must assume error allegation. be We cannot State, quoted nature. We claim of this v. sustain a record. Carter from a silent 595 State, proof requirements established v. (Okl.Cr.1979); the three Reid P.2d 478 1352 Mis Duren v. Supreme Court by the also Ellis v. (Okl.Cr.1970). See P.2d 988 668, 364, 664, souri, 357, 99 State, 439 U.S. 107, (Okl.Cr.1990); Hill 109 795 P.2d (1979) being: L.Ed.2d 587 State, 58 (Okl.Cr.1987); 745 P.2d 411 State, (Okl. alleged Cardenas v. (1) group be excluded 695 878 that the P.2d community; in the Dollar v. group Cr.1985); a ‘distinctivе’ (2) group (Okl.Cr.1984). of this representation juries are from which selected in venires record, Regardless of the silent we find fair and reasonable relation is not wholly satisfy failed persons the com- number of such proof to him assigned the burden of ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌​‌​‌​‌‌​‌​​​​​‌​​‍munity; (3) represen- this under Duren. question There is no but systematic exclusion tation is due to the any group a distinctive com- blacks are process. group jury young munity; According- likewise adults. (Okl.Cr.1989), P.2d 562 Fox See also ly the first factor of the Duren criteria is rt. denied ce 1538, undeniably The same is established. not (1990); Litteer v. 108 L.Ed.2d true, however, second and third P.2d prongs of the test. rejected may be on two Appellant’s claim record of There is no evidence in the First, appropriate not an grounds. there is proportion young of blacks or adults which from which determine record County. live in Neither is there Creek second, veracity of his claim even a hint of confirmation as- any provide failed to evidence that he has (but proven) not of these sumed absence representation group, as- the under jury two from the selec- classes exist, suming one was “due to the does pool “systematic was due to their ex- group in systematic exclusion process clusion” selection itself. jury process.” Appellant met minimum has not the level the Following jury the resolution of se- proof required justify to further evalua- Appellant process, for made lection counsel In tion of his claim. the absence of such following objection: the proof, error find no or reason to believe exposition (sic) object I to the racial anything that as oth- the selеcted was panel, the entire now that we have seen impartial. er than fair and taking them and seen individual each III, XVII, Appel- In propositions XIV Court, the seat. would state to it is not dealing lant with the raises issues admis- racially standpoint from the balanced Specifi- during sion of the trial. evidence my greatly was it balanced from —nor cally, claims the state’s Appellant psy- that such, And, beginning. as Your Hon- improperly testify allowed to chiatrist was or, I would ask a mistrial and another were made concerning statements which in panel racially that are be selected more rights his constitutional violation of balanced. evidence, pictures that certain Tr. 222. testimony bodies and victims n argument by only This counsel is the relatives, prejudicial proba- more than composition objеction voiced to the tive and should have been excluded. jury. appears It from the context of coun- outset, argument only objecting recognize sel’s that he is to At jurors actually evidentiary largely the racial mix of chosen. matters left are to the event, court. Rosteck v. any In no record the trial there is before us discretion of Accord- mental put condition is not into issue ingly, whether, upon our review must focus accused. This distinctly case is different in challenge particular in the face of to the Appellant’s mental status was an issue portion testimony, item of or evidence directly by Appellant. fact, raised In appropriate the trial court made the deci- Buchanan, was the case in the evidence as sion. Appellant’s mental status was the рresented by evidence the defense. Appellant’s allegation first with re gard admissibility of evidence con Appellant “Application filed an and No- testimony cerns the of Dr. Thomas Good tice Insanity For the Use of the Defense” man, psychiatrist called the state dur February (O.R. 200). on 1988. On Feb rebuttal the first of the trial. granted the trial court Appellant’s re- Appellant Dr. Goodman examined at East quest appointment psychiatric for the Hospital ern State in connection with the (O.R. 215). expert. May, the State re- pretrial competency requested evaluation ceived the permission require court’s Appellant argues the State. now that Appellant to submit to examination with Dr. Goodman’s subsequent testimony in respect insanity to his defense. The testi- volving opinions pretrial derived from the mony generated at issue was at this exami- examination should not have been allowed nation. regard as substantive Appellant’s Buchanan, recognized sanity at the time of the offense. inherent difficulty applying the restric- cites, Unlike the cases Estelle, tive rules of in a situation where allegation there is testimony by no the defendant psychiatric relies on testimo- Dr. Goodman was allowed violation of ny, yet prohibit seeks to the State from the Fifth Amendment. In Estelle v. obtaining using rebutting evidence. The Smith, 68 Court circumstances, noted that such “[i]n (1981); L.Ed.2d 359 Stinson v. respond could not de- this [State] (Okl.Cr.1974); P.2d 735 Noyes v. presented fense unless it other psychologi- (Okl.Cr.1973), question P.2d 1368 at Buchanan, cal evidence.” 483 U.S. at issue involved the psychi- admission of the atric testimony as substantive evidence of Buchanan, As testimony was true guilt. cases, In those opinion where the solely this case was admitted for the rendered involves a confession of the de- purpose rebutting Appellant’s evidence tails of the crime profession- to the medical of extreme emotional disturbance. Dr. al, question there is any no and all testify Goodman did not about legal means protect must be taken to giving criminal acts rise to the action rights against defendant’s self incrimina- record, Appellant. ap- From the tion. The situation in this case is different. pears apparently ad- We are not concerned testimony rights regard vised of his and de- upon jury which a finding danger- of future clined to discuss the details of the crime ousness is based was true in Estelle. with the A doctor. violation of the Fifth Instead, the evidence was offered in direct Amendment arise when the testi- Appellant’s rebuttal evidence that he mony involved is based on the incrimina- was not sane at the time of the crime. We ting statements defendant. There is find guided our resolution of this issue is here, thus, no evidence of that there is no the Court’s decision in Bu- reason for the exclusion of the evidence. 402, Kentucky, chanan v. 483 U.S. 107 2906, (1987). S.Ct. 97 L.Ed.2d 336 XVII, Proposition Ap In XIV and Buchanan, evidence, pellant In photographs the Court held that the identifies regard testimony by dictates of Estelle with the the intro- victims and their rela tives, opinions duction of based on information which he claims should not have been gleaned during competency a evaluation offered at prejudi trial that it was more applicable only outset, are in those probative. cases where the ciаl than At the we note

752 required to offense, not was ap- the established has not upon of the alternatives which indicate the review to allow record propriate also was based. See the conviction which request that no There was photographs. 734, (Okl. State, P.2d 737 720 v. Newsted the record part made pictures be 834, State, Cr.1986); 719 P.2d v. Plunkett our review. included for not were State, Phillips v. 641 (Okl.Cr.1986); 841 on the comment Accordingly, we cannot (Okl.Cr.1982). also 556, See 559 P.2d may have had at pictures effect which U.S.-, Arizona, 111 501 v. Schad 107, State, 109 795 P.2d v. trial. Ellis (1991). The verdict 115 L.Ed.2d 555 State, 745 P.2d (Okl.Cr.1990); Hill v. is no error with thus there proper, was State, v. 695 (Okl.Cr.1987); 411 Cardenas conviction. regard to the murder (Okl.Cr.1985); v. Dollar P.2d however, must, reach a differ We (Okl.Cr.1984). State, P.2d allega respect to the ent conclusion ad evidentiary matter second rob the offense of that conviction for testimony concerns by Appellant dressed In Mun jeopardy. double bery constitutes mother. Sanders’ Houghton’s wife and (Okl.Cr. 758 P.2d son testimony was Appellant claims allegation on 1988), same considered the we. creating purpose of for the put purely on In that case we facts. almost identical Appellant did for the victims. sympathy held: trial, thus he testimony at object to the not Nonetheless, jury’s verdict fundamental error. all but appellant waived was specify not whether does (Okl.Cr.1989); malice-aforethought mur- guilty of Jones v. found or armed-rob- kidnapping murder der or Grant murder, must be inter- bery the verdict testimony of the that the we find While felony murder order preted as one of the vic- as to the identification relatives appellant receive the benefit belongings may have been аnd their tims convicted that a defendant cannot be rule testimony to light of other unnecessary underlying felo- felony-murder and facts, merely cu- it was same at most felony which ny.... To determine find that fundamen- We do not mulative. felony-murder the basis formed error has occurred. tal underlying felony more than one where respect allegations The final look first to the charged, one must proceedings concern first to the evidence. information and second omitted). guilt (Citations questions manner in which Proposition In jury. submitted Munson, determined that X, occurred that error claims dis- robbery conviction must be armed specify required jury was not when the “the initial robbery missed that the was based on guilty verdict whether felony began the chain events aforethought felony mur- at 333. leading malice murder death.” Id. to the victim’s its сonnection, and ordered Propo- claims in We reversed the conviction he also der. the same result to be dismissal. We find V, possibility that he sition trial The evidence at indi- warranted here. Felony murder makes on convicted based in this case which cates that the events kidnapping robbery his convictions for arose from lead to the deaths of the victims protections of the constitutional a violation Appellant’s to commit armed rob- desire jeopardy. double bery. He the victims and then de- robbed long that a This Court has held Accordingly, cided to steal their cars. may be affirmed conviction for murder for two Appellant’s find that conviction charged theories are where alternative Robbery Firearms must be counts of with supports either malice when the evidence and remanded with instructions to reversed aforethought felony murder. James them. dismiss (Okl.Cr. State, 637 P.2d 865-66 SECOND STAGE PROCEEDINGS 1981), we held that when the alternative charges were based on the factual basis of the We need address one of crime, concerning allegations rather than the actual nature of made errors occur- implicated proceedings very side the limited situation ring stage in the second apply under these facts. We will this anal- the case requires that error ysis only in cases where the amendment for to the trial court be remanded back adding parole option of life without alleges that his resentencing. Appellant in at the time of Section 701.10 was effect equal protection rights process to due Only the trial. those cases will receive the trial court failed were viоlated when sentencing consideration of the additional respect poten- to the instruct the with possibility. In the interests of fundamen- alternative, pa- punishment life without tial fairness, justice find tal we demands He bases his claim on the fact role. taken this under these action at 21 O.S. punishment option, codified distinctively compelling facts. 701.10, prior law to his became § Having allegations reviewed the of error trial, although subsequent to the commis- Appellant, raised we find that con- in find merit sion of the offenses. We Murder, Kidnapping, victions for Arson in argument. Degree Larceny the Third of an Auto- mobile are AFFIRMED. The convictions Due to the extreme nature Robbery for Firearms are RE- cases, capital in murder we have involved instructions to VERSED with DISMISS. extremely often the need for discussed The death sentence returned for the Mur- scrutiny imposition careful der is and the case convictions VACATED State, 702 death sentence. See Liles v. stage pro- is REMANDED for new second philos- This P.2d ceedings. ophy legisla- is also demonstrated requirement examine tive that this Court LUMPKIN, P.J., part/dissents concurs in any every each and sentence of death for part. in imposed evidence that the sentence was V.P.J., JOHNSON, specially concurs. passion, prejudice or under the influence of CHAPEL, J., concurs. factor, arbitrary any other and whether supports evidence offered at trial each of LUMPKIN, Presiding Judge: concurring ag- part. in jury’s findings respect part/dissenting to the gravating support circumstances which determination the I concur this Court’s 701.13(C). O.S.Supp.1987, sentence. 21 murder, kidnapping, for arson convictions short, must sеntences of death be abso- should be larceny of an automobile affirmed; robbery and the convictions for lutely, unquestionably fair. should be reversed. dis- with firearms gravity penalty, of the death Given the case to the determination sent Court’s principals we find that of fundamental fair- resentencing, us- should be remanded for compel case for a ness us reverse this life-without-parole option. ing the second trial. As new discussed “principals holding in its cites This Court (Okl.Cr.1991), Allen v. reversing of fundamental fairness” [sic] prohibition we find no constitutional second-stage trial. Ante at 753. for a new sentencing op- possible of this puts quandary, me in a for how does This cases where the law became principles of fundamental one dissent to period however, while the offender awaited shows quandary, fairness? This Quite simply, justify princi- a precisely why equitable trial. we cannot use of this ruling of ple as the for a cannot serve basis decision act as a total which would bar century ago: law. As was said over consideration of a alternative Roguish thing: for Equity is a Law merely giving to death because the crime to, measure, know what to trust have rise to the trial occurred a short time be- Equity according to the Conscience of is previously fore the effective date of enact- Chancellor, him and as that legislation. ed narrower, Equity. ’Tis all larger or so is The circumstances involved in this deci- one as if should make Standard unique interpret- sion are and should not be measure, call, a Chancellor’s Foot, ed to have broader ramifications out- what an uncertain measure would 754 аddition, Foot, jurisprudence a of our long a review One Chancellor

this be? Foot, principle part legal an indiffer- was of the a third reveals this a short another thing in the the same foundation laid ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌​‌​‌​‌‌​‌​​​​​‌​​‍at statehood. One ent Foot. ’Tis State, Sharp v. Conscience. 3 Okl.Cr. Chancellor’s first cases was (1909). 24, The defendant there 104 P. 71 (Arber, Seldon, John, Equity Table-Talk an offense while Indian Territo- committed 1-7, Reprints, nos. English Edward, ed. of ry governed by was the laws state 1869) is “fundamen- at 46. What London: go to Arkansas. The defendant did not may not “fun- judge to one be fairness” tal after Oklahoma had become trial until to another. fairness” damental ques- its statutes. The state and enacted in the law applied “Fairness” whether the laws tion before the Court was the Fourteenth Clause of Due Process ap- Arkansas or Oklahoma should bе of the Unit to the Constitution Amendment applica- plied. The Court determined demands, among things, States, other ed tion of the laws of the state Oklahoma prohibitive of the nature fair notice defendant and seriously would harm the Greenville, Miss., City v. Capler acts. only choice to use the laws which was aff'd, (N.D.Miss.1969), 295, F.Supp. 298 298 Rely- Cir.1970). Here, controlled at the time of the offense. (5th Appel 422 F.2d 299 case, Court he on United States that “fairness”: knew lant received Missouri, 221, Kring v. at the 2 degree first murder S.Ct. punishment for 443, (1883), it either life time he committed 27 L.Ed. 506 the Oklahoma prison death. stated: accused be Court should “[t]he under the as it tried and dealt with law State, v. cites Allen 821 majority The existed at the time of the commission (Okl.Cr.1991) proposition for the P.2d 371 charged.” crime he stands of which infirmity in the there is no constitutional 31, Sharp, 3 Okl.Cr. at P. The 104 at 74. life-without-parole option application of the Bowman principle reiterated this Court before that to a murder which occurred it that the sentence of ten when determined into effect. Allen punishment option went years proper is a to life was because first, “[i]t But fully is below. discussed more appro- well established rule of law that covering nearly jurisprudence will show penalty in priate criminal is the majority of this proves nine decades at the time the defendant commits effect in its simply wrong, here and both Bowman, 789 P.2d at 631. the crime.” previous analysis. Turner, 389, Freshour v. See also 496 P.2d dealing recent decision Our most (Okl.Cr.1972) (defendant, at 392 seventeen subject of retroactive offense, time of not entitled to benefit of a State, v. Bowman subsequently enacted bill which defined the Bowman, (Okl.Cr.1990). 631 wе stated any person age under the term “child” as appropriate criminal clarity that “the eighteen; language in the enact- penalty in effect at the time is the applied ment did not show be the defendant commits the crime.” Id. at applied pro- retroactively, the law be 367, Penn v. 13 (citing 631 Okl.Cr. v. Jones spectively only); 3 Okl.Cr. Alberty v. (1917) State 10 164 P. 992 (1910). irony 107 P. 738 (1914)). 140 P. 1025 Federal Okl.Cr. attempt apply “fairness” in this Court’s apply principle repeatedly this basic courts v. Costa case is revealed our decision in Towne, In United States of law. In that denied, Cir.1989), cert. (2d F.2d 880 case, judge the trial sentenced the defen- 104 L.Ed.2d 1010 U.S. parole, dant to life without which was not a (1989), the Second Circuit found that sentencing option time of the crime. at the repeal prior a statute to the defendant’s Finding judge trial committed er- inapposite being because the sentenced was sentencing, ror with this Court did not re- statute was in effect at the time under sentencing, mand for but struck “with- and at the lying offenses were committed parole” portion out sentence Id. convicted. time the defendant was Butler, remanded for the trial court to correct the Burge also F.2d See (5th Cir.1989). Id. error. at 395. type analysis provi- lead to an The Court’s of a Legal nuances of this substantive anomaly apply The then skews the rules anomaly of the law. sion which procedural of law are to be principles which retroactive effect of matters. skews in serious cracks applied and creates It is in this vein that Allen v. jurisprudence. In addi- foundation of our (Okl.Cr.1991) incorrectly P.2d 371 de- tion, denigrates principle that this is it reason, cided. For whatever this Court laws, not of men. a nation of get allowed itself to sidetracked on an ex Court, analysis, This in its alludes to question. post Every second-year facto “death is different.” observation knows, dealing student law when with an the final nature of the death While post application, ex definition facto microscopic in a more review of result necessarily the term assume the statute case, change not the facts of a it does basic question applied is intended to be retro- application principles of the of a rule of actively. I fear the Court has confused law, consistently applying or the manner of entirely principles two different of law. the law. The basis of the United States here, question and the core of this overturning applica- Supreme Court’s dissent, is not whether it is constitutional- penalty in tion of the death Furman v. permissible apply a ly retroactively, to law Georgia, 408 U.S. 33 but whether the law was to meant be (1972), L.Ed.2d 346 was there must be a applied retroactively at all. law, application consistent and that This discussion and above stare decisis vague, arbitrary applications clearly assumption show that makes Allen concept be That of con- removed. intellectually infirm. But if even this sistency application legal princi- Court decides to throw out the combined ples applied fairly aspects must all be to jurisprudence of this Court since Statehood case, the review a criminal whether it issue, on the it cannot overlook its own applies to the State or a defendant. For ruling Wade the Court to do otherwise creates aberra- (Okl.Cr.1992), option held the impede orderly, tions the law which parole life without would not be available if application consistent of that law in the requested by it not were defendant at trial courts of this State. Here, option requested; trial. was not case, The actions of the Court in this yet this Court would reverse the sentence pursuant type to some of “fairness” re- despite its more recent case. own view, disregard the facts of the case. The pun- Before Allen the law was clear: the objected neither to the instruc- applied ishment was the one in effect to be given requested tions nor an instruction on the time the crime Al- was committed. optional punishment. this This Court len created confusion where before there position trying should never take the was none. nurtured that confusion. Wade strategy appellant’s reinvent the trial of an through fog, But a trial court could at attorney judges in a trial. Trial are vested thing: option if least count on one being applying with a dual role fair not, requested, given; if it would be appropriate the law under the circum- appeal. not error on would be Now appellate judge stance. The role of an is to murky Court seeks to throw out even that apply consistently the law and to ensure pronouncement. and inconsis- Confusion the rules of law are set forth to enable trial tency poor especially in make bedfellows— practitioners rely judges and trial on case, capital litigat- murder which will be principles those of law the trial of cases. years to сome. ed for procedural aspects may While declared be “Principles of fundamental fairness” applicable retroactively, pursuant be problem this O.S.1991, easy solution to the amendments substantive by ignoring its own caselaw in penal procedure has created statute cannot. The conducting determining “death is different.” And as resentencing proceeding solutions, neat, many easy plausi- substantially different than an it is penal provisions wrong. agree I cannot the doc- the statutes ble—and changed based on when the crime was committed. trines of this Court are to be join in judge, and cannot succeeding every vague rush in some opinion that an ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌​‌​‌​‌‌​‌​​​​​‌​​‍applied in the law to be “fairness” varies no more consistent that it is a manner

such foot.

than a Chancellor’s respectfully dissent.

JOHNSON, Presiding Judge, Vice concurring.

specially majority here- specially

I concur my Special Concurrance Salazar

in. See Oklahoma, P.2d 729. v. State of PETITION FOR DENYING

ORDER AND DIRECTING

REHEARING MANDATE

ISSUANCE OF day September, this 14th

NOW on Petition for Re- having examined the styled and numbered hearing in the above REMANDING FOR ORDER prem- cause, being fully advised COMPETENCY be, ises, finds that it should this Court HEARING hereby DENIED. The reasons the same Lillard, appellant, tried Thomas justification for the raised the State as May 22, Okmulgee County jury on present petition addressed detail Resisting and convicted of District Court (Okl.Cr. Salazar (Count I) Bat- and Assault and an Officer 1993). this Court is directed The Clerk of II) (Count upon tery a Police Officer issue the mandate forthwith. HCRM-87-5099, and Assault and Case No. IT ORDERED. IS SO Dangerous Weapon in Case Battery with a /s/Gary Lumpkin L. 8, 1987, July On one No. HCRF-87-5036. LUMPKIN, Presiding Judge L. GARY appellant charged, week after /s/Charles A. Johnson for determination State filed JOHNSON, Vice CHARLES A. O.S.1981, competency. 1175.2. See § Presiding Judge hearing application, trial At the on the /s/James F. Lane competence ques- appellant’s court found LANE, Judge F. JAMES undergo pro- tionable and ordered him Chapel /s/Charles S. at Eastern fessional mental evaluation CHAPEL, Judge CHARLES S. Hospital. O.S.Supp.1987, State See M. /s/Reta Strubhar 1175.3(D). appellant After had been STRUBHAR, Judge § RETA M.

evaluated, post-examina- the court held a competency hearing pursuant to 22 O.S.Supp.1987, 1175.4. did not § request compe- trial on the issue of tency and held the trial was thus before LILLARD, Appellant, Thomas judge. proceeding, At the close of this appellant “incompetent, ca- court found but Oklahoma, Appellee. pable achieving competency within a rea- STATE time_” O.S.1981, period sonable No. F-89-1095. 1175.7(A). Accordingly, appellant was Appeals Court of Criminal of Oklahoma. Hospi- ordered committed to Eastern State May competency, tal until he and fur- resumed proceedings against

ther criminal him were 30, 1987, stayed. September appellant On upon order. was released a doctor’s

Case Details

Case Name: Hain v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Apr 29, 1993

Citation: 852 P.2d 744

Docket Number: F-88-466

Court Abbreviation: Okla. Crim. App.