Harger v. State, 665 P.2d 827

Harger v. State

665 P.2d 827

Okla. Crim. App.

1983

Check Treatment

*1 827 pleaded guilty defendant nolo conten- correctly or construes the intent legislative dere, sentencing shall be proceeding our prohibiting statute as the remanding of (Emphasis conducted before the court.. a case a resentencing hearing, for or for a added.) new trial when the only error occurs during the sentencing stage. We plain are now convinced that a read- O.S.1981, ing 701.13, of 21 does not autho- § casе,

rize this Court remand a death tried

before a for jury, solely resentencing be-

fore a jury, different even when error oc-

curs only stage. sentencing Section

701.13(E) provides regard that with to re-

view of death sentences this Court shall be

authorized to: death; Gary HARGER,

1. Appellant, Affirm the sentence of dr Dean 2. the sentence Set aside remand v. the case for modification of the sentence Oklahoma, Appellee. The STATE of to imprisonment for life. No. F-81-486.

Therefоre, since this Court unwilling is speculate improper as to effect the ag Court of Appeals Criminal Oklahoma. circumstance, gravating murder remu Feb. 1983. neration, the jury’s had on recommendation ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to impose dеath we penalty, find it As 1983. Corrected March necessary to sentence to life Rehearing Denied March 1983. imprisonment in accordance Section 701.13(E). prejudicial When error occurs in

the sentencing stage only, of the trial this

Court consistently has modified the death imprisonment

sentence to life and otherwise State,

affirmed. Odum v. 53 See OBAJ (Okl.Cr.1982); P.2d Burrоws State, (Okl.Cr.1982); 640 P.2d 533 Irvin State, (Okl.Cr.1980). P.2d See opinion today

also our handed down State, (Okl.Cr.

Boutwell v. 659 P.2d 322

1983), in which Court reached the same

result on grounds. these AFFIRMED, is judgment except as sentence; imposition the death

death sentence vacated and the case is

REMANDED to the District Court Tulsa

County for MODIFICATION sen-

tence imprisonment. to life

BRETT, J., concurs.

BUSSEY, P.J., part concurs in and dis-

sents in part.

BUSSEY, Presiding Judge, concurring in

part part: dissenting

I agree be should af-

firmed, do but I not the majority believe *2 Butler, Enid, appellant. for

David C. Gen., Cartwright, Atty. Jan Eric G. Scott ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Gen., Ray, Atty. City, Asst. Oklahoma appellee.

OPINION CORNISH, Judge: was convicted in the Gary Harger Dean County of Mur- District Cоurt of Garfield Degree, in the First and sentenced der imprisonment. life April at trial showed that on Evidence ex-wife, appellant strangled help With the of his Cynthia Harger. her car to a bar and left it brother he drove thаt she had give impression there to then there. The two men disappeared from unsuccess- oil field location and drove to an body. The next bury fully attempted body by appellant disposed of day, the well. pit by trash an oil it in a placing by rope were secured blocks Cement prevent her ankles and neck deceased’s being to the surface and corpse rising from discovered.

I for the girl, burial little who had been tak- away on en Christmas Eve. initially It is erred asserted trial court in ruling ap- that statements made Brewer, however, is readily distinguisha- pellant ad- were therefore bar; ble from the Supreme case missible into evidence. These statements there Court held to be confession invol- *3 recovery led to the of his wife’s The body. untary due violation the to the of defend- principal argument is the that statements right ant’s to In present case, counsel. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the by were induced a not promise they would legal present during question- counsel was be used the against appellant trial. and ing actually map handed the to the sheriff.

A confession will not be аdmitted into evidence in a criminal unless it is trial question The a whether confes found given. to be The use of a voluntarily sion the of a will product free must be coercion, by defendant’s confession obtained answered on the facts of each case. No mental, physical by whether or is forbidden Illinois, fact is single dispositive. Brown the Fourteenth Amendment. The admis 599, 2254, 422 U.S. 95 45 L.Ed.2d S.Ct. 416 sion in evidence of such confession over (1975). That the sheriff asked the appel objection vitiates the convic lant to divulge body’s the location so that Arkansas, tion. Payne 356 78 U.S. victim only the could be buried is the paral (1958). S.Ct. 2 L.Ed.2d 975 Brewer, supra, lel and that alone is not The during record shows that question- determinative. There is no indication that ing, present, being with counsel and after appellant’s the will was overborne. The fully rights, advised his Miranda the appellant record shows that the made his appellant divulge was asked if he would the statements under circumstances free from the body location of so the that victim could threats, coercion or lengthy interrogation, receive a “decent burial.” When the sheriff prolonged or family isolation from or location, was as general informed to the the friends. appellant was asked be to more in specific With counsel he present, voluntarily told He drеw map directions. then a show- corpse Pickle that his Sheriff wife’s was in ing the body where been Be- placed. had the persuaded Waukomis area. We are not sheriff, fore turning the to map over the that by argument the the not “promise” to asked, appellant’s “You use attorney won’t the map use evidence he which later this against him will you?” The sheriff appellant drew induced the to confess. To then responded, “I’ll it give back to him.” contrary, the the facts on the record indi- map The subsequently was returned to the that appellant agreed cooperate cate the to appellant’s attorney, the re- but еvidence map drew the after he had already pursuant ceived given information divulged general the location the body the investigating was officer used at trial. and before there was any discussion. be- Williams, Appellant relies on Brewer v. tween his and the about attorney sheriff its 97 U.S. S.Ct. L.Ed.2d This, least, very use evidence. at the (1977), the proposition that an inadmis- that had promise shows there been or no sible all confession renders evidence re- And, inducement extended before-hand. ceived pursuant to that confession inadmis- too, significant it is that the suggestion that Brewer, sible. In the after defendant was map the not be came used evidеnce from arrested and was being transported an- counsel, his own with the response sheriff’s location, detective, other police knowing a being he merely give that would it back. that the deeply religious dеfendant was an escapee from a We are not here to determine the hospital, mental exerted of, or pressure enforceability what it was that psychological on him to disclose by of thе body. parties “agreement,” victim’s The de- intended if one location persuaded tective the defendant that at all. Rather our task is to determine victim’s were entitled parents to Christian whether the appellant’s Fifth Amendment determination that independent was violat- made an self-incrimination right against voluntary, was the issue is to the circumstances and the confession totality of ed. The that the by jury upon proper сonvince us be reconsidered of events sequence Here, however, derived therefrom evidence instructions. map and the We find admissions at illegally procured. were not in his defense made the samе product Therefore, refusing were the error in any the statements trial. choice, made and rational appellant’s jury free to consider the instruct advised of his having fully after been custodial admis- apрellant’s nature of The trial present. and with counsel rights, where the custodial sions was harmless them as admitted properly therefore been admitted into properly statements had derived therefrom. well as the fruits evidence and were restated in substance testimony. accused in his trial also claims the *4 on the issue hearing court denied ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍him a II Denno, 378 U.S.

pursuant to Jackson (1964). The 12 L.Ed.2d 908 S.Ct. appel- error the proposition In his fifth reflects, however, prеlimi the that record in intro- lant maintains the trial court erred pur for the interrupted was nary hearing depicting the vic- ducing photographs two argue to and pose allowing defense the oil field body tim’s as recovered from of his motion support to in present evidence asserts that these pit. appellant trash The resulting and evi suppress to the confession unnecessarily prejudicial and pictures were focused on argument dence. The defense’s inflammatory. and was followed the issue of voluntariness general The rule is that where the the confession by finding the court’s probative photographs value of is out In and evidence were admissible. resulting impact their on the weighed by prejudicial Georgia, Sims v. 385 U.S. S.Ct. should not be admitted. Bresh jury, they (1967), it was determined L.Ed.2d 593 State, (Okl.Cr.1977). In ers v. 572 P.2d 561 need judge that a trial Supreme Court bar, illustrated photographs thе case fact in order to findings riot make formal attempt in which appellant the manner finding a comply requiring with the rule were not dispose body. They ed to of the However, the conclusion of voluntariness. merely but showed a form gruesome, the confession is judge that wrapped in a blanket with two cement with “unmis appear must from the record they blocks tied at each end. As tended to ruling admitting The clarity.” takable confession, we appellant’s corroborate as well requirement confession satisfied not an of the find that admission was abuse have a as the that a defendant requirement merit trial court’s discretion and dоes not of his confes hearing on the voluntariness reversal. sion before stage proceeding at some in the jury. submission to the Jackson See

Denno, 376-377, at 1780. supra at ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍84 S.Ct. III tried the case judge

The district who lastly The asserts the tri evi- likewise admitted the confession into erroneously al court sustained the State’s dence; the issue are re- findings his on witness’s objection portion expert of an journal entry original flected in a in thе conclu testimony relating findings and record which he he examined the in states colleague. sions of his on the matter transcripts proceedings proof, In his offer of the defense counsel was voluntary. and found the confession have testified to stated his witness would next asserts the trial more than that his clinical conclusions no refusing colleague. to were consistent those of a judge abused his discretion nothing instruct the as to the voluntariness of have amounted to more jury This would a matter within proce testimony describing custodial confession. Oklahoma than dure observation and was requires personal that after the trial has thе witness’s

not hearsay. light In of the overwhelming

evidence, however, error in disallowing the

testimony was harmless. reasons,

For the above and

sentence AFFIRMED.

BUSSEY, P.J., concurs.

BRETT, J., in part concurs and dissents

in part.

BRETT, Judge, concurring part,

dissenting in part.

I concur that appellant should stand con-

victed, but not for the crime of First De-

gree record, IAs view the Murder.

prosecution failed prove the element of aforethought required

malice First De-

gree Murder. I would the convic-

tion to First Degree Manslaughter

modify (45) sentence to forty-five years.

When made his ad- inculpatory

mission, describing where deceased’s located,

body was he also stated before

Sheriff that “he didn’t mean kill her.”

(Tr. 58). The record reflects to me that the

homicide of passion occurred in heat

resulting from what said to deceased

appellant during argument. their There- fore, I would modify conviction to First ORDER ASSUMING ORIGINAL JURIS- Degree Manslaughter, the sen- DICTION, GRANTING WRIT OF tence accordingly. CERTIORARI, AND REMANDING

THE CASE FOR FURTHER PRO- CEEDINGS Pеtitioner entered pleas guilty Tulsa County District Court three violations of the Uniform Dangerous Controlled Sub- Act, O.S.1981, 2-101, stance et seq. § The pleas part agreement were of an whereby the State would recommend fоur- GRAVITT, Appellant, Richard Franklin year suspended on charges. sentences However, due to pre-sen- an unfavorable investigation report, tence de- Oklahoma, Appellee. STATE sentences, suspеnd clined to and further No. C-82-660. permit declined to to withdraw pleas Appellant was sen- guilty. Court of Appeals Criminal of Oklahoma. three four-year impris- tenced to terms of June 1983. concurrently, onment to be served and seeks petition review by for writ of certiorari. plea A motion withdraw guilty is directed to the sound discretion of