Hayes v. State

spe- pension pension due or- Illinois Constitution benefits under the of the provision a employee excep- addressing government Article 2 15 no cifically dinances. contains § pensions to be pensions municipal pen- allowed such of tion for the forfeiture a 11 Ill.Dec. at or divested. Id. plan duced by municipal sion the of a conviction The 1122. intermediate 368 N.E.2d at employee. the Illinois concluded that Constitu- court majority’s that the ben- theory Under the pensions to be government allowed tion vested, payments then efits never those it said: “It is or divested when reduced employee his by received were not recognized framers apparent that the thus yet he property, even had not been pension might which a circumstances under convicted a crime and he had met all of reduced, reasoning, of by extension be requirements receiving payments. This con- altogether.” Id. same divested accept clearly I that. cannot This case interpreted provision19 was stitutional reveals the use of a conviction of a crime II, Supreme Illinois Kerner where forfeit in property. a vested estate Absent explained under constitu- Court princi- articulated and relevant neutral membership in provision the retire- tional ple divesting pension of law for this man’s an con- system ment created enforceable benefit, join doing I cannot so. relationship and forfeiture tractual sum, majority opinion contrary In constitutionally part of statute years of jurispru- to two hundred forfeiture created and enforceable contract. dence, non-applicable opinion a from a uses pension II decision The Kerner foreign dispute un- jurisdiction to resolve a one makes when realizes that benefit sense Constitution, der Oklahoma’s and divests a incor- employee statute was forfeiture pension vested of a benefit on the basis provi- porated a state constitutional within conviction, contrary the Oklahoma Con- plan. creating pension In other

sion stitution, Art. 2 15. § words, the statute was elevated forfeiture by and effect constitutional force I am that V.C.J. authorized state as construing part the statute court joins HODGES these views. creating provision constitutional pension plan. The decision also makes

sense in the of the decision of the context court, governmental Kerner that a

lower plan

pension created under constitution- changed or provision

al be divested could vesting.

after a comparable Oklahoma have does not HAYES, Roger Appellant, Dale provision specifically constitutional creat- plans munici- ing governmental pension pal employees incorporate could Oklahoma, Appellee. The STATE municipal forfeiture employee ordinance give force and of a such the effect No. F-82-466. provision of our State Constitution. Nei- Appeals of Criminal Oklahoma. possess such ther does Oklahoma a consti- allowing for provision tutional the divest- March 1992. ing pension plans. CONCLUSION Art. 2 Oklahoma Constitution at prohibits a criminal conviction from

working a forfeiture of estate. The em-

ployee began receiving here retired XIII, Const.1970,

19. Ill. sec. 5. art. Hull,

Terry Appellate Public J. Asst. De- Norman, fender, appellant. Gen., Henry, A. Atty. H. Diane

Robert Gen., Hammons, Atty. Asst. Oklahoma City, appellee. REMAND

OPINION ON BRETT, Judge: 22, 1980, Logan County On December CRF-80-160, ap- District Case No. pellant, charged Roger Hayes, Dale was single-count First information with De- gree Aforethought Malice Murder Degree Felony He was Murder. con- by jury victed and sentence to death However, September March 1981. on was set this conviction and sentence physical While the medical serious abuse. County District Court Logan by the aside there numer- testified that were a new trial. examiner afforded was abrasions, bruises, scrapes, and contu- May ous conducted Retrial 24— face, most head and it was con- sions on the appellant was again, once force to the head likely that some blunt and sen- Degree Murder of victed child unconscious. And most rendered the affirmed the This Court death. tenced to beginning State, at the of likely, this occurred Hayes in v. and sentence conviction defensive there were no (Okl.Cr.1987). Hayes In v. assault because 738 P.2d 533 Also, 2815, body. the child died 1050, on the 108 S.Ct. wounds Oklahoma, 486 U.S. throat, slashed and there as a result of the (1988), United States L.Ed.2d 916 100 aspiration of into the no blood petition had been granted appellant’s Supreme Court lungs indicates that she did not certiorari, this Court’s vacated for writ of after her throat any in of her blood and sen- breathe affirming the conviction judgment theory this cut. This substantiates case back to was tence, remanded the and unconscious when she died. light in of that she was further consideration for Court proper- 356, Although jury find that the was 108 we 486 U.S. Cartwright, Maynard v. instructed, (1988). aggravating circumstance ly is in 1853, 372 It L.Ed.2d 100 S.Ct. atrocious, heinous, “especially or this of cruel” case is before that this this context insuffi- held invalid as there was must be at this time. Court upon support the evidence which to cient his death sen that Appellant contends circumstance. it is based be vacated because tence should in application and on an unconstitutional remaining must now turn to heinous, “especially terpretation of the against aggravating circumstance assessed atrocious, circum aggravating or cruel” being “continuing threat to appellant, that there was that He also contends stance. argues on remand that society”. Appellant jury’s support the insufficient evidence of provide failed to written notice the State circumstance. aggravating finding of the second-stage and names of witnesses appellant’s opinion previous After the rely upon to the evidence the State would down, this Court nar case was handed aggravating circumstances as re prove the aggravating this application of rowed the O.S.1981, by 21 701.10. The State quired that murders were circumstance to those although have this Court hold that would abuse. We physical or preceded by torture provid notice the record is silent as to sufficiently narrows this have found that appellant regard, in this we should ed to passes and aggravating circumstance given in trial that notice was the first infer State, v. constitutional muster. object at the appellant and that failed to Stouffer (Okl.Cr.1987)(Opinion on Re 742 P.2d 562 trial, this issue is waived. second therefore State, Moore v. 788 hearing). e.g. See also (Okl. State, In 756 P.2d 1240 Wilson v. — (Okl.Cr.1990), denied P.2d 387 cert. Cr.1988),this modified the death sen 227, -, 112 L.Ed.2d 182 111 U.S. S.Ct. life the State failed to tence to because (Okl.Cr.1989) State, (1990); P.2d 562 779 Fox v. second-stage witnesses give notice of 1060, 110 S.Ct. 494 U.S. rt. denied ce 1538, testimony. The summary of their (1990); Hale v. 108 L.Ed.2d 777 case-in- filed a list of witnesses its State State, (Okl.Cr.1988),cert. de 750 P.2d 130 document, stage all in one chief and second 195, 878, nied, 102 109 S.Ct. 488 U.S. however, complete provide failed to list (1988). L.Ed.2d 164 precis of the evidence that witnesses and a Nevertheless, presented. This Court found light Maynard would be lack of no that this constituted a 108 S.Ct. Wilson Cartwright, v. 486 U.S. notice. The (1988), agree ap just tice and not insufficient we 100 L.Ed.2d 372 pre-trial raised in motions evidence issue was pellant that there was insufficient stage the evidence during the second when support aggravating circumstance. this pre presented, and therefore was presented at trial was There was no evidence appeal. by torture or served for preceded the murder that was State, 1038 unconscious when she killed. The 713 P.2d mit- In Green 871, 107 igating presented evidence indicated (Okl.Cr.1985) 479 U.S. cert. denied retarded, (1986),this Court L.Ed.2d 165 was borderline low S.Ct. level, object hospitalized to lack of no had education held that “failure been tice, hearing or at the' frequent- pre-trial problems past, at a either mental offered, challenged ly evidence he did time confessed crimes for which statutory reweighing, in waiver After a will result commit. careful we Green, conclusively the two de right.” jury counsel for In cannot state lack of a penalty to raise issue still assessed the death fendants failed would have trial, during atrocious, heinous, or before of notice either even without cru- lacking therefore, though notice was aggravator. el we conclude case, appeal. issue failed on in that this that the death sentence shall be vacated resentencing and this matter remanded for not appellant he was agree that attorney the district shall have in which the stage second witnesses given of the notice death, life, seeking or life with- options present- precis the evidence to be and parole. out merely stated Bill of Particulars ed. The aggra- for two statutory language the the appellant’s find claim Since we merit to alleged vating the circumstances State vacated, his death sentence shall be that would precis of the evidence that without a the unnecessary we find it to address re- circumstances. support used to be maining issues brief on raised his witnesses; list of howev- State did submit a foregoing for the rea- mand. er, distinguish list did sons, degree appellant’s conviction for first only one stage person testify would and however, AFFIRMED; murder is death stage listed witnesses was second hereby and sentence is VACATED stage witness- the rest of the second while REMANDED matter FOR RESENTENC- present on document. es were not ING. present However, the issue in the since during either case was not raised before P.J., V.P.J., LANE, LUMPKIN, trial, properly pre- this issue is not PARKS, J., concur. review, therefore appellate served for must fail. JOHNSON, J., Special Concurrence. finding aggrava Upon a that one JOHNSON, Judge, concurring. specially invalid, ting has circumstance is this Court the convic- reweigh remaining agree val I with the authority Degree Murder of aggravating against circumstances tion for id State, affirmed, reluctantly but I most mitigating v. should be circumstances. Stout must (Okl.Cr.1991) agree matter be 2749 must also that the 817 P.2d 737 62 OBJ 1991). and remand the v. vacated as to the sentence (September See also Clemons agree with the resentencing. for Mississippi, 494 U.S. 110 S.Ct. case by Judge (1990). majority find of the as stated Although opinion we 108 L.Ed.2d 725 power have the society aggra- that this Court does continuing threat to Brett that the authority, the Okla- valid, specu and the both under “only it be rank vator would Federal Consti- im and the jury might have homa Constitution lation as to what tution, reweigh remaining ag- valid considered the invalidated” posed had it not any heinous, atrocious, gravating in the event or cru circumstances circumstance are aggravating circumstances Stout, P.2d at 739. The evidence of el. 817 any reason. Clemons v. prosecution in the second thrown out presented by the 738, 110 S.Ct. continuing Mississippi, threat 494 U.S. stage upon the focused (1990). has However, closing 725 This Court during his 108 L.Ed.2d circumstance. relates our recently held the same as it attorney focused argument, the district State, 817 P.2d circumstance, procedure. State Stout upon invalid (Okl.Cr.1991). probably the child he admitted that concurring opinion, there- specially This Judge

fore, what Brett has said reiterates Court, power of the but relates to the

as it statement as it relates make a

I needed to should be sent back for the case

to when opinion of the writ-

resentencing. It is the exists in the mind of

er that if a doubt reweigh- it relates to the

appellate judge as improper aggrava- affect the

ing and what outcome of the had on the

tor would have

case, of the doubt should then the benefit and the matter given to a defendant

be resentencing. It seems that

sent back regard in this

justice served would be easier to have the addi-

also that it is far go through the numer-

tional trial then to only appeals that would be involved

ous resentencing.

have it later sent back specially concur with the ma-

jority in this matter.

ACCELERATED DOCKET ORDER ANSWERING RESERVED QUESTION OF LAW The State of Oklahoma is before the question Court on a reserved law. Petitioner, Oklahoma, The STATE of question impression is one of first for this Court: whether an valid search otherwise day night warrant which authorizes or STAFFORD, Terry Lynn Darla Louise by printed boilerplate, search but which is Marjorie Francis Dobrolowski and supported by findings of fact as Stirrett, Respondents. quired by O.S.Supp.1990, is void though by day. even it was served No. S-91-551. find the search warrant is not void under Appeals Court of Criminal of Oklahoma. these circumstances. Appellee Terry Lynn Stafford was Aug. 1992. charged Obstructing with an in Tul- Officer Court, County sa District Case No. CM-90- 1608, Darla Louise Dobrowolski was charged Obstructing an Officer and Marijuana Unlawful Possession of in Case No. Marjorie CM 90-1609 and Francis Stir- charged rett was with Unlawful Possession Marijuana No. Case CM 90-1610. These cases were consolidated for trial. The search warrant issued in case day night by printed authorized service boilerplate, supporting af-

Case Details

Case Name: Hayes v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Mar 12, 1992

Citation: 845 P.2d 890

Docket Number: F-82-466

Court Abbreviation: Okla. Crim. App.