Hogan v. State

rеview, jury the must be is fact be determined de it Upon our novo stage in the erred, the defendant second matter of afforded to as a the court clear that trial punitive jury on the amount of pres of trial law, request denying in Tidewater’s 9.1(B) O.S.2001, § damages of under question fact the argument on the ent O.S.2001, plaintiff § 577 when the damages. legal even punitive That er of amount argument. of waives violation Tide resulted a substantial ror present argument statutory right to water’s as to the amount of question on the fact THE OF COURT OF CIVIL OPINION of

punitive damages. Without the benefit VACATED; ORDER OF APPEALS for closing argument, the deliberated DENYING THE DISTRICT COURT a verdict in only and returned nine minutes REVERSED; TRIAL DIS- NEW $11,000 punitive dam plaintiffs of of favor ON TRICT COURT JUDGMENT equal damages. actual ages, an amount the IN AFFIRMED JURY VERDICT on verdict on judgment entered PART; PART AND IN REVERSED be aside. damages must set punitive REMANDED TO THE DIS- CAUSE COURT FOR FURTHER TRICT Although have deter we CONSISTENT PROCEEDINGS verdict judgment mined THIS OPINION. WITH proceeding below is stage first in the WINCHESTER, V.C.J., WATT, J., C. error, must new trial on there be a free of HARGRAVE, OPALA, LAVENDER, Oklahoma punitive damages. amount of EDMONDSON, JJ„ concur. KAUGER and granted solely on a new to be allows trial Francis, v. 1965 OK damages, Shinn issue COLBERT, J., part concurs ¶95, 31, it is where clear 404 P.2d part. dissents assessing damages did not affect error Volkswagen Fields v. the entire verdict. ¶ 11, America, Inc., 555 P.2d 1976 OK may A limited new trial by the where other

fact issues affected error is not interwoven and where it

fact issues are over and that the error does not reach

clear no in which is error those issues there affect judgment respects in other is free of and the HOGAN, Eugene Appellant Kenneth Schumacher, 1958 OK error. Hallford Here, legal 992-993. stage of in the second error occurred Oklahoma, Appellee. STATE fact issue affected proceeding and No. D-2003-610. punitive error the amount of dam Accordingly, we reverse the district ages. of Oklahoma. Appeals of Criminal judgment on the verdict court’s entered May damages in the amount of fixing punitive $11,000.00 cause for new and remand this Rehearing Granting Order stage on the issue second sole Denying of Mandate Recall punitive damages. amount 28, 2006. June Conclusion

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915 Hammarsten, Anthony McKes- Catherine Defenders, son, Oklahoma Assistant Public OK, attorneys at trial. City, for defendant Elliott, Gump, Assistant Suzanne Sandra OK, Attorneys, City, Oklahoma at- District torneys for the State on trial. Merritt,

Carolyn Assistant Public De- L. OK, attorneys fender, City, for Oklahoma appeal. on appellant 916 Edmondson, Attorney children; Drew General She had taken

W.A. care his he had Oklahoma, Dickson, J. helped Jennifer Preston her with schoolwork. Even after her General, Attorneys Draper, Saul Assistant marriage Stanley to George he her visited OK, City, attorneys appellee for Oklahoma in her apartment. specula- often There was on appeal. tion their relationship at awas one, intimacy.

romantic but no evidence of Hogan said thought OPINION he had of her as a sister. ¶ George Stanley 4 testified that the morn- JOHNSON, Judge. ing January ordinary 28 had been an one Eugene Hogan, Appellant, 1 Kenneth couple. for the He and Lisa had sorted by jury was in the tried District Court of lunch, laundry, eaten and pipe-full smoked a CRF-88-646, County, Case No. Oklahoma marijuana before he work left for before Degree and of First Murder. The convicted evening, noon. When he returned home Hogan’s punishment fixеd death and apartment he found his in a shambles and his Hogan court accordingly. the trial sentenced body on floor living wife’s room. Hogan appealed Judgment and Sentence Stanley 5 Lisa had been stabbed 25 times Hogan to Court we affirmed. v. large with a knife. She suffered wounds OK 877 1157.1 CR The head, neck, chest, back, Any her and throat. Supreme United States Court denied Ho- one of certiorari, several wounds would have her gan’s petition Hogan caused for v. Okla- homa, quickly. death pattern analysis Bloodstain 513 U.S. S.Ct. stabbing showed the (1995), begun had kitch- Hogan’s L.Ed.2d we denied en, relief, the victim upright moving had been application post-conviction Hogan for (Dec. period attack, for a of time during the Case No. PCD-95-1337 1996)(not deepest wounds had been inflicted publication). for in the living body room where the was found.

¶ Hogan sought thereafter federal habe- corpus week, review in the United States Hogan Dis- during Within confessed trict for the Western District Okla- City interview with Oklahoma Police De- homa. The court partment district denied relief and Detective Bob Horn that he had Hogan appealed. The Tenth Circuit re- Stanley. killed Lisa The State introduced versed and remanded the matter for a tape recording new of that played confession and trial, finding Hogan’s process rights Later, due it jury. for the the defense intro- were violated the trial court’s refusal to transcription recording. duced a of the same instruct the on first degree manslaugh- Hogan January told Detective Horn on Gibson, Hogan ter. 197 F.3d 1312 28th he lied to saying going his wife he was (10th Cir.1999). Hogan’s work, case retried to find but gone instead had to Lisa’s April 24 through March apartment 2003 before the help her report with a book Tammy stuff,” Honorable They Bass-Jones. school. smoked got high “some Hogan Degree convicted of First Murder and and “smoked more.” began some Trouble punishment fixed finding at death after the when Lisa insisted he steal a Pioneer stereo heinous, atrocious, especially murder was argued. for her. He refused and cruel. The trial court sentenced statement, According to his the trouble death appeals. and he Hogan, prepared when angry, escalated neighbors leave. Lisa told him the could I. FACTS through hear the walls and threatened to Stanley 3 Kenneth and Lisa scream that raping had he was her. She locked years known each other well for several be- herself in the bathroom. He kicked the door January 28, fore Hogan on killed her and threatened tell her mother and her during an apartment. afternoon visit to her husband secrets about certain incidents in Hogaa filed his argument Petition in Error ber December 2004. This Court heard oral 1, Hogan's July 23, 2003. Brief in Chief was filed on August on 26, 2004. The State’s brief was filed on Novem- kitchen, SELECTION ISSUES returning JURY the went to past. her She “pushed” at knife which she with a butcher A. pulled she the blade while grabbed He him. Hogan told cutting his hand. knife back

the ¶ VII, Hogan Proposition claims 12 In “just knew that she was the detective he rulings made the' trial court dur several rape tried to gonna the Police that I’d tell right him his to a ing denied selection ” her,.... First, jury. he impartial claims fair refusing allow trial court erred in to the ¶ cоntinued: The interview prospective inquire to defense counsel do, you KEN? HORN: What’d juror she could consider other forms whether I killed her. HOGAN: Ho supported by the evidence. of homicide ques gan purpose the of counsel’s maintains report purposes this For the HORN: prospective whether tion to determine happened. me tell ... tell what KEN me passion jurors heat of de could consider his hurts, much ... It too HOGAN: information, this he con fense. Without you kill How did her? HORN: tends, could neither ascer defense counsel prospective juror grounds to dismiss a tain me with the knife she cut With HOGAN: cause, intelligently peremp exercise nor I wasn’t ... it was like and it wasn’t tory challenges. disagree. We ... somebody it just ... else even there ... wasn’t even me ¶ The and extent of voir manner ... doing what’s What were HORN: discretionary questioning is with the dire doing KEN? person rulings will not be disturbed trial court. Its stabbing her and I It was appeal HOGAN: court’s decision was unless the ... right ... I stop manifestly him that’s clearly couldn’t or unreasonable. erroneous ¶ friends, State, 27, I didn’t just went over to be P.3d v. 2004 OK Lott CR ¶ 344; do harm and now 318, come over there to 2001 OK CR Black got pay to ... it’s not fair. I’ve 21 P.3d 1057. To facilitate selec tion, may questions trial court restrict stabbing remained 9 After in regard or repetitive, that are irrelevant arrang- spent some time apartment and will upon which the trial court legal issues if things to as someone else had ing look Black, jury. instruct He over “fighting” tipped Lisa. been ¶ 15, 21 at 1057. “No abuse of discre P.3d television, emptied purse her the contents of long dire will found so voir tion be was look- make it look like someone out “to enough to afford the questioning is broad rug, for stuff’ and took bathroom ing influence, outside free of defendant blood, away to be burned. with his stained personal Id. interest.” bias not imme- His decision to confess was upheld has who courts This Court testimony he after left There was diate. theory questions posed restrict defense emergen- apartment, Hogan drove to questions jurors seek prospective when cy of his cut hand. room for treatment jurors’ willingness to ac- prospective to test gave about he several stories There theory of defense rather cept accused’s his injury. Later he asked wife cause of Black, 2001 impartiality. their than test police had been home and had he tell 1058; ¶5, 19, Jackson CR OK injured garage. himself in the She testified CR 1998 OK conversation. pro- asked the Here defense counsel ... were to trial, juror the Court dispute spective “[i]f was no 11 At there encompass homi- you Stanley. give instructions killed Lisa Hogan had Ken homicides, are not intentional during cides that first question for salient in- those you willing to consider would acted with the stage was whether had The trial court sustained structions?” away her life or intent to take deliberate objection. State’s passion. heat of clearly question posed they here is somewhat state are willing 15 The to tem- questions porarily condemned in own in set aside their beliefs def- different But Black and those disallowed Jackson. erence to the rule of law. stated, are “[w]e court not as Jackson 13, 79, ¶23, 1994 OK CR 90-91 ques- in whether or not a certain interested (citations omitted). wrongful The exclusion asked, tion was allowed to be but rather juror eligible capital of an in a case based was allowed sufficient whether the defendant solely upon juror’s opposition grounds voir dire to determine if there were penalty death can never constitute “harmless juror particular challenge to for cause and Gray Mississippi, error.” See v. 481 U.S. (sic) intelligently preemptory exercise his 648, 668,107 2057, 2045, S.Ct. 95 L.Ed.2d 622 Jackson, 39, 11, challenges.” 1998 OK CR (1987); State, DeRosa v. P.2d at counsel here was 883. Defense ¶ 36, 1124, 1140, 89 P.3d n. 78. jurors permitted prospective to ask whether prospective jurors thirteen they everyone believed who kills some- by Hogan all identified were examined intentionally. does so one Defense counsel parties. trial court and the Each them question jurors prospective

was allowed unequivocally stated that under no circum they all about whether could consider they impose penalty. stances would the death regarding court’s instructions the evidence of further, prospective jurors One went intent, questions ask testing and to whether saying judgment that he could sit in jurors would listen both sides any another under circumstances. When case and consider all the evidence before questioned defense counsel all these rendering questioning a verdict. The here prospective jurors deeply affirmed that held enough was broad to meet constitutional re- against penalty beliefs prevented death quirements required. and no relief is considering them from it. Based record we find the trial court did abuse B. removing jurors its discretion these ¶ 16 Hogan also claims the trial court cause. excusing jurors prospective erred thirteen determining they for cause without whether sufficiently opposition

could set their aside C. penalty the death and consider all three ¶ Hogan’s third claim is that punishment including options, available refusing request the trial court erred his penalty. death jurors to excuse five for cause. The record prospective juror A17 should be shows that five of perempto used his capital excused for cause when views on ry challenges jurors to remove these punishment prevent substantially would they did not serve. The record further impair performance of his as duties shows that waived two of his nine juror in accordance with the court’s instruc peremptory challenges. Failure to use all jurors’ Witt, tions and oath. Wainwright v. peremptory challenges any allotted waives 469 U.S. 105 S.Ct. 83 objection composition jury. to the final (1985); State, Young L.Ed.2d 841 2000 OK Oklahoma, 81, 87-90, See Ross v. 487 U.S. 17, ¶23, CR 12 P.3d 32. Prospective 2273, 2278-79, 108 S.Ct. 101 L.Ed.2d jurors irrevocably must not committed to (1988) (requiring per defendants exercise punishment option one before trial has emptory challenges to cure the trial court’s they begun and willing must be to consider ruling challenge erroneous on a for cause and penalties provided by all the law. Id. In holding any stemming error from a Allen v. we stated: ruling challenge court’s erroneous on cause oppose penalty “grounds

[N]ot all who death are is for reversal if the defendant subject capital to removal for cause in peremptory challenges exhausts all and an cases; firmly him.”); who incompetent juror upon those believe death is forced see unjust penalty may serve nevertheless also 1998 OK CR Battenfield jurors capital as long so cases n. 1129 n. 29. Because 919 (1979). Contrary L.Ed.2d peremptory 61 560 to all of his Hogan failed use argue Hogan’s was to claim that Easlick was not retro- challenges he and does juror, applied its unacceptable he active terms and should not be keep an forced to decision, the lan- prior to eases tried the on this claim. cannot succeed expressed clearly guage Easlick this III. FIRST STAGE ISSUES apply Spuehler intent to standard Court’s appeal post Easlick. all cases reviewed on A. application of a retroactive standard of The ¶20 II, his Proposition Hogan In claims any Hogan’s does not run afoul of review degree murder conviction must be modi- first rights. Easlick did not carve constitutional manslaughter degree because the fied to first exception “state mind” and we are out a beyond prove a reasonable failed to State so unpersuaded to do now. Stanley with malice that he killed doubt ¶ Applying Spuehler 22 standard reaching the merits of aforethought. Before here, find a to the evidence we rational trier claim, proper this we must determine Hogan of fact could have found acted with prosecution standard of review. Because aforethought beyond a malice reasonable prove he used circumstantial evidence Stanley twenty-five doubt when he stabbed aforethought, Hogan killed with malice Hogan Stanley he times. admitted stabbed use the “reasonable claims this Court should multiple The times. evidence showed Hogan hypothesis” While ac- standard.2 Hogan began knifing Stanley near the v. knowledges holding this Easlick Court’s kitchen, following living her into the room State, P.3d throat, severing he cut her the carotid where test, rejecting hypothesis he the reasonable her on the left side of neck. The arteries proper claims it remains the standard rejected Hogan’s passion heat de intent was cases where the evidence of and fense and his claims that he “lost it” only. proved by circumstantial evidence killing in control. The manner ¶ 21 In Easlick we abandoned support finding pattern of the wounds hypothesis” the “reasonable test stated Stanley. Hogan to kill See intended sufficiency all future claims we would review ¶8, State, 5, 67 v. CR P.3d Cruse OK standard, whereby Spuehler under the 920, 922. This claim is denied. appellate appeal court reviews a defendant’s sufficiency trial in the of the evidence B. prosecution light favorable to most III, Hogan Proposition trier of fact whether rational determine pre to his elements of claims the three references made could have found the essential prejudiced Hogan him.3 contends charged beyond a reasonable vious trial the crime previ informing he had been Spuehler 1985 OK doubt. v. CR See jurors’ 132, 7, ously tried this crime quoting 203-04 for diminished Jack responsibility in their decision-mak- Virginia, S.Ct. sense son 443 U.S. standard, jury. hypоthesis trial court to admonish the this did not ask the 2. Under the reasonable light objection, review the evidence but would sustained the de- The court most to the State determine whether favorable for final in- the motion a mistrial. The nied all the circumstantial evidence ruled out reason- during stage second when Inves- stance occurred except hypotheses able acted Argo tigator that he did not think he Bud testified aforethought. malice Hogan. prosecutor identify refreshed could transcript Hogan's Argo's memory with the occurred when defense 3. The first reference trial, reading portion Argo identi- where first Tiffany Harrington whether this counsel asked asking Argo if he recalled his fied regarding time was the first she testified "Yes, stated, testimony. Argo that was in the answered, Harrington "Except for the incident. asked for a second first trial.” Defense counsel during instance first trial.” The next occurred stage mistrial. The trial court admonished prosecution’s of defense cross-examination requiring only questions fact, prosecutor couch her asked, prosecutor witness. The "In response Hogan's trial, yes no denied motion you spoke, prior we not?” De- and I did objected, a mistrial. moved for a mistrial but fense counsel c. responsibilities rea- ing because would already been once son that he had convicted IV, Proposition 27 In Hogan claims the degree of first murder. before photographs admission of several violated his right process to due and the Ex Post Facto CR 24 In Romano OK of Clause both the federal and state constitu- 909 P.2d we addressed an almost identical fifty-two tions. photo- The State introduced claim. The Romano court held two refer- graphs during stages twenty- both of trial: prior to ences the defendant’s trial constitut- eight photographs; eighteen crime scene O.S.1991, of ed error and a violation 21 photographs Stanley’s body depicting at the § but concluded the error was harmless. scene, Stanley crime five of taken at the ¶¶ Romano, 51-52, 1995 OK CR 909 P.2d medical one “in examiner’s office and life” at The court found error Romano the graduation photograph. photographs The in- given strength harmless the of the evidence during stage troduced first will be considered against the defendant the fact the and that stage here photographs, and the second in- jury prior that was aware there had been cluding “in graduation the life” photograph, proceedings hearings despite and in the ease stage will be considered with second issues. the Id. references. ¶ 28 in Defense counsel moved to limine photographs, exclude the crime argu- scene Romano, Hogan’s jury As was true in 25 ing any probative photos value the far was prior proceedings was well aware that had outweighed by danger preju- the of unfair place testimony taken because of the some objected dice. Defense at counsel trial by presented reading transcript was State’s Exhibits 4 19 Stanley’s and because Hogan’s prior Transcripts trial. from Ho- wedding pictures in were visible the back- gan’s first trial question were also used to ground photоgraph body. of her De- impeach some of the witnesses. The objected fense counsel further to the admis- by error here also mitigated was the trial sion of arguing State’s Exhibits 14 and 17 correctly court’s instructions that informed photos unfairly prejudicial those were jury duty of its role this case. the admission of State’s 15 Exhibits and 16 jurors they The court trial instructed the they duplicative because were of State’s Ex- judges were the sole of the evidence and that object hibit 14. Defense counsel did not they judg- should not their surrender own 3, 6,11,12 State’s Exhibits and 18. The trial ment, but base their decision the evidence objections. court of Hogan’s overruled each presented during trial. These circumstances ¶ 29 The photo decision to admit guilt strong where evidence of was dictate graphs discretionary is with the trial court finding that the error was harmless. and will appeal not be reversed on unless It is not clear how a clearly reference manifestly erroneous or unreasonable. State, stage Hogan’s prior second Lott v. trial could OK CR 98 P.3d 318, 344; Lockett v. jury’s 2002 OK CR sentencing have influenced deci- ¶ 19, Photographs 53 P.3d are The sion. was told never they admissible if pro are relevant and their previously had been sentenced death and substantially outweighed bative value that the sentence had been reversed. This danger prejudice of unfair or needless properly regarding pun- was instructed presentation of cumulative evidence. Lock ishment. We can find no reason to believe ett, ¶30, 19, 425; at prior the isolated to a trial reference O.S.2001,§§ 2402-2403. stage second diverted the from its “awe- responsibility” deciding some appro- Only photographs eleven priate punishment. See Bland v. 2000 depicting Stanley crime scene were ¶11, error, OK CR 729. The during stage.4 introduced the first These if any, was harmless. photographs probative were because photographs Stanley during The State stage, showed medical examiner first but did not 42-44, 65-70, stage. State's Exhibits and 90-91 to the introduce these exhibits until second D. understanding crime jury in assisted testimony, assisted reconstructionist’s scene VI, Hogan Proposition claims theory understanding the State’s was denied a fair admission he occurred and corroborated how crime his Tif privileged communication with wife Hogan’s confession. fact parts of Stanley’s shortly con fany after death. The Stanley’s 19 show Exhibits State’s asking Tiffany consisted of versation background wedding pictures in the does provide him an alibi to lie and with substantially photographs to be cause Stanley by supporting killed day was photos prejudicial probative; than more police he home her claim to Stanley’s body in her showed the location day his hand in the and that he cut surrounded, as was killed home where she he intended for Tif garage.5 Because never by posses- expect, would her household one fany he her to lie to the to reveal that told sions. police support on her his alibi and counted to relationship, their he claims marital based ¶31 chal recognize that the We privileged. part the conversation was disturbing lenged photographs may be to testified, ob Tiffany Before defense counsel of the person. a normal Each sensibilities of jected testimony, asserting Hogan’s to her however, as showed different photographs, court privilege.6 marital overruled of the scene or a view different pect crime objection finding Hogan’s the content of Stanley probative Their wounds sustained. repeated to intended to be conversation was substantially outweighed value not parties privi and was therefore third danger presentation of cumu of needless leged. The the conversation court admitted photos Nor unfair lative evidence. were proof his as Hogan and wife between photos ly prejudicial. The show the crime guilt. consciousness scene, victim, sus and the wounds she legislature Oklahoma en- They depict do during tained her attack. [herein- Code autop as acted the Oklahoma Evidence the work of a medical examiner Code], every person states that is might, they gratu are after which sy photograph nor person no competent to a witness and that itously shocking. pictures depict the be These to and disclose infor- pro It violate can refuse be a witness killer’s handiwork. did not due by law. 12 Hogan’s jury. mation authorized O.S. to them to See unless cess show legislature §§ 2501 and 2601.7 The DeRosa OK CR 1124, 1150. communication a confidential marital codified not, Hogan in fact been at prosecutor Hogan’s dur- truth that Mr. had asked former wife 5.The ing trial: home? Yes. A. (Prosecutor) prior going point Q. At to some you police everything Q. tell the And did department police police and after to the you that he Mr. had said to intended husband, your try question had to called to police you convey to the officers? to you did and he have some discussion about Yes. A. police? say what to the 188-89) (Tr.6 at (TiffanyHogan Harrington) A. Yes. you please Q. Okay. describe that for us? Can testimony objected to Defense counsel first day? A. To tell them he was home all Hogan and his you between Okay. Q. them about conversation And what did he tell to tell during opening injury wife the State's statement. hand? about the his garage. cut a in the A. That he had hose you Q. Okay. And did do that? part: provides in 7. Section 2501 A. Yes. constitution, provided Except as otherwise police Q. you when So told to the promulgated by Supreme statute or rules questioned you? first person privilege to: Court no has A. Yes. witness; be a 1. Refuse to point Q. at It is a certain fact that some any matter. 2. Refuse to disclose your during with the detectives interview every person provides is com that, fact, Section 2601 you them that was not true? told pro except petent as otherwise a witness A. Yes. Code, 12 O.S. point in the Oklahoma Evidence you Q. vided at what it was And do recall et seq. you §§ during the interview that told them judging in the Code known as the “Hus- privilege privilege whether holder of has Privilege.”8 significant part band-Wife disclosed a of a privileged privilege matter so as to waive the as to the privilege precludes husband-wife 34 The whole communication. testifying pro- spouse a criminal any confidential communication cеeding as Considering the confidential communi- spouse. the accused and between objectives here cation issue and the of the 2504(B). § A communication is O.S.2001 privilege, husband-wife we find dis- if it privileged and therefore confidential signif- closed and consented to of a disclosure person by any per- privately made to that part icant he had the conversation spouse, son’s and the content of the conver- police wife when both he and his told wife any sation is not intended for disclosure to voluntarily By disclosing he alibi contrived. 2504(A). O.S.2001, § person. 12 A other consenting significant of a disclosure voluntarily if person privilege waives the he part of the confidential conversation he had discloses or consents to disclosure wife, Hogan with his waived husband- “significant” part privileged matter. privilege wife entire conversation § 12 O.S.Supp.2002, 2511. admitting the trial court did not err Tiffany’s testimony concerning it. “sig has not 35 This Court defined O.S.Supp.2002, § 2511. purposes determining nificant” for of when by has it privilege the holder of a waived IV. FIRST STAGE INSTRUCTIONS part disclosing privileged a of an otherwise party. Wigmore communication to a third A. voluntary testimony concerning would find a I, part Proposition 37 In any privi Hogan challenges of communication waives the lege jury whole of trial first stage as to the the communication. 8 the court’s instructions Evidence, 638; § Wigmore submitting passion § 2327 manslaughter on at 2340 heat a of as Whinery § 671-72. finds that 2511 jury is lesser included offense. He claims the a “provides more flexible and within standard instructions were erroneous and him denied may process which a court exercise its discretion due because the instructions did not depending upon particular of the jury the facts inform the" the State had to dis- objectives by case and the to be the prove prove achieved his affirmative and defense the Evidence, privilege question.” passion Oklahoma of of beyond absence heat a reason- 2, Whinery, § agree Hogan vol. at 764. 35.13 We able doubt. also claims the trial Whinery with approach. the should constitutionally Courts court’s instructions were de- particular consider the facts of the case and ficient the because instructions did not ade- objectives particular privilege quately the of passion the inform the heat of both, legislature against At the the same time the enacted or the minor children of either the Code, repealed wife, it the Code of Civil Procedure's may they husband or the but in all criminal privilege spousal immunity, also known as other, cases witnesses for each and shall be spousal disqualification, spouse that forbids a witnesses, subject to cross-examination other being against a from witness the See other. 12 and shall in event no on a criminal trial be O.S., 385(3) (providing § that husbands and permitted by to disclose communications made incompetent wives were to be for witnesses or except to the one other on a trial of an offense against except concerning each other transac- by against except committed one the other or on agent tions in which one acted as of the other one, bоth, felony by trial a of a committed or they joint parties joint or when were a had against the minor children of either the husband action.) interest Section 385 con- also Code, wife.") adoption or Prior to the tained a broad marital confidential communica- very § 702 made it clear that in a all but narrow privilege. repealed legislature tion The the Code range privilege of circumstances the marital privilege spousal of Criminal im- Procedure's prevent spouse could be invoked one O.S., munity years § See four later. 702 State, testifying against Lavicky the other. v. (providing "neither nor husband wife shall in ¶87, 6, OK CR 632 P.2d 1236. In any against except case be witness the other contrast, privilege, the Code "limits the marital prosecution a criminal a crime committed cases, other, in criminal against 'confidential communica- except one in a or criminal " prosecution against Id. also tions.’ See Evidence Subcommittee's either or the either, husband wife, both, O.S., felony by § or for a committed Note settled trial courts adequately distinguish curred. It is law his defense jury on the duty of mur have a to instruct the salient mental states the different between law acknowledges features of the raised evidence manslaughter. Hogan der ¶¶5, 42-49, State, request. Atterberry v. with or without v. 2001 OK CR that Black State, 1064-67, 8, 731 P.2d the uniform in 1986 OK CR held 21 P.3d State, citing Wing CR sufficiently distinguish 1955 OK between structions Jury are manslaugh 280 P.2d instructions of murder and the mental states proof ter, sufficient if when read as a whole state adequately allocate the burden applicable McGregor v. properly consider the law. allow ¶71, 23, 1366, 1380. in those instanc OK CR 885 P.2d manslaughter evidence even is heat of where defendant’s defense es not that he dispute did killed manslaughter is submitted as passion Stanley. degree mur- He defended the first maintains, offense. lesser included charge attempting der to convince however, controlling that Black here Stanley that he did kill use the uni the trial court did not because in a intent but rather acted heat of deliberate given and the form instructions instructions defense, he passion. Based on asked on how adequately failed to instruct give the trial court to uniform instructions consider offense of heat to evaluate and manslaughter as a passion heat lesser manslaughter. passion gave court included offense. instructions, manslaughter uniform submit- object to the trial Hogan did not manslaughter as a ting the offense lesser on this manslaughter instructions ba court’s Hogan requested. The included offense as sis; so error his failure to do forfeits instructions from the uniform deviated plain unless he can show error. See Norton relating jury’s consideration lesser ¶10, 17, crafted its included offenses and own.9 409; O.S.2001, § To be entitled to 20 3001.1. Hogan com- These instructions about which doctrine, plain Hogan error under the relief largely on instructions he plains were based 1) prove: the of an actual must existence question must is proposed.10 The we answer 2) (i.e., rule); legal deviation a error instructions ade- whether the trial court’s 3) obvious; plain or that the error is quately applicable the law. stated rights, the error affected substantial meaning аffected the outcome of the error “Legal 41 are matters defenses State, Simpson v. 1994 proceeding. the See go legal guilt of or which exoneration ¶¶ 690, 40, 3, 11, 23, 694, P.2d OK CR 876 may a charge the to evidence which reduce O.S.2001, 695, 698; § If these ele 20 3001.1. State, Kinsey v. lesser offense.” included met, plain are will correct ments ¶ 9, 630, 64, 633. This 1990 OK 798 P.2d CR “seriously only affect[s] error the error if the legal to defenses as refers these Court often fairness, of integrity public reputation or the jurisdictions, In affirmative defenses. some represents judicial proceedings” or otherwise only a of bears not burden the defendant justice.” Simpson, 1994 “miscarriage a of a production for his affirmative defense but 30, (citing at 701 CR 876 P.2d OK New persuasion. Patterson v. burden of See Olano, 725, 736, v. 507 U.S. United States York, 197, 200-01, 97 S.Ct. 432 U.S. (1993); 1770, 1779, 123 508 S.Ct. L.Ed.2d 113 (1977). Oklahoma, a 53 281 L.Ed.2d O.S.2001, § 20 3001.1. a only to raise reason defendant’s burden is guilt. of his Merriweather step plain error able doubt 39 The first State, 708 Okla.Crim. analysis is error oc- to determine whether manslaugh- Hogan's requested substantially instructions No. 13 sets forth the Instruction the procedure in the uniform instructions were filed and contained ter as a lesser included offense of lesser included offenses. It for consideration included them all record shows the court punishment jury properly instructions, informed rearranging the order of a few its range manslaughter for and that issue of concerning paragraphs how to sentences degree punishment was not be- for first murder consider lesser included offenses. time. fore the at that (1932); McClatchey v. degree required Okla.Crim. murder and the mental state (1915). manslaughter. 152 P. a de- As we Once stated in Black: fense is raised the defendant is entitled to an The use of intent” in defini- “deliberate theory of instruction on his defense tion malice in Oklahoma connotes persuasion never to the de- burden of shifts thought intent out or considered ¶64, 9, Kinsey, 1990 OK fendant. CR act, before commission the fatal rather Merriweather, 633; 708; P.2d at P.2d at than some condition undefined of the mind McClatchey, P. at 1137. burden of passion requires heart. heat of Because prove persuasion remains on the State to the defendant act on to the force of beyond charged each element of the crime strong following adequate provo- emotion prove beyond reasonable doubt thus to naturally cation that would abili- affect the any reasonable doubt absence of affirma- ty to incapable reason and render mind Striplin tive defense raised.11 See reflection, i.e., of cool not with a deliberate pre-formed, intent defini- Oklahoma passion tions malice and heat of show ¶ 42 Hogan’s jury was instructed Although cannot in- co-exist. required prove State was each element of specif- structions the instant case do not beyond degree first murder a reasonable ically state mental these states cannot co- Hogan doubt and that could not convicted ..., employed exist the definitions to de- of that offense unless the had met its State fine the mental states murder and heat similarly burden. The instructed passion manslaughter sufficiently in- Hogan it convict could not of heat of formed the the differing mens passion manslaughter unless the State had mutually rea elements were exclusive. proved beyond of that elements offense reasonable These doubt. instructions when required prove read as a whole State Although the instructions administered ad- in killing acted with deliberate intent jury procedurally vised the to consider and, Stanley, consequently, required Lisa murder if first and it had a reasonable any prove State absence of other doubt as to proof murder then mental The trial state. court’s instructions manslaughter, consider other instructions any presumed neither required element nor dictated that the Appellant’s consider prove element order to passion determining heat of in evidence if manslaughter.12

reduce the crime to Appellant possessed a deliberate intent ¶ 43 The instructions were suffi Pogue. when he Specifically, stabbed in ciently explaining clear in elements, the difference be its consideration of the murder required tween the state for mental first the was instructed to consider the Patterson, 214-16, 11. This reflected burden is in the uniform in- 432 U.S. 97 S.Ct. at Cf. structions on See defenses. OUJI-CR2d 8-5 (holding requires 2329-30 Due Process Clause (burden another); proof of for defense of OUJI- prosecution prove beyond the to a reasonable (burden proof CR2d prop- 8-17 of for defense of all doubt of the elements included in the defini- (burden erty); proof OUJI-CR2d 8-22 for du- of charged of the tion offense New York law ress); (burden proof 8-26 OUJI-CR2d of for en- requires degree that the defendant in a second (burden trapment); proof of OUJI-CR2d 8-30 prosecution prove by preponderance murder homicide); (bur- for excusable 8-33 OUJI-CR2d the of evidence the affirmative defense of ex- proof insanity); den of (burden for OUJI-CR2d 8-38 treme emotional in disturbance order to reduce intoxication); proof voluntary of for manslaughter crime when of no element (burden proof OUJI-CR2d 8-44 of for involun- charged presumed offense is does not violate intoxication); (burden tary and OUJI-CR2d 8-49 Clause); Wilbur, Mullaney the Due Process self-defense). proof of 684, 703-04, 1881, 1892, 421 U.S. 95 S.Ct. 44 (1975) (holding prove L.Ed.2d 508 State must satisfy Winship, 12. These instructions In re 397 every 358, beyond 1068, element of an offense a reasonable U.S. S.Ct. 90 25 L.Ed.2d doubt and a that (1970)(holding 368 scheme shifts the burden the Due Clause Process protects proof upon against presuming except defendant a fact accused conviction upon proof beyond proof every of the reasonable doubt of other elements of the offense violates necessary charged). fact process). to constitute the crime due

925 reason, Hogan in can- surrounding did Black.13 For circumstances external plain not show error. act to deter- of the homicidal commission a deliberate Appellant possessed if mine objections Any Hogan had 45 external to take human life. Such intent format instructions or the order of the “words, Appellant’s included circumstances they presented required his ob which were demeanor, motive, conduct, and all other jection and of alternative instruc submission the fatal connected” with circumstances object he fail to to thеse tions. Not did Therefore, stabbing Pogue. based on instructions, they given at his particular were administered, Ap- we find the instructions may have oc request.14 Any error deprived having pellant was by Hogan. was error invited curred here passion his heat defense consider verbatim, Ho gave, almost court such, charge. As the murder tandem with can gan’s proposed instructions.15 Reversal administered we find the instructions Lynch v. an error. not be based on such See constitutionally adequate to this case were 65, 7, P.2d OK CR appropriate burdens of ensure that (“[w]e [a]ppellant to invite er will not allow proof parties allocated were same”); complain Pierce ror then Appellant’s free consider P.2d defense. may not (holding that 1259-60 defendant ¶¶ Black, CR 48 and 2001 OK invited, complain of he and further error at 1066-67. on holding cannot be based that reversal ‍‌‌‌​​‌‌​‌‌‌​‌‌​​‌​‌​‌‌‌‌​​‌​​​​​‌​​​‌​​​‌​‌‌​​​​‍error). such gave case 44 The trial court in this given instructions Black same substantive B. passion degree heat of on first murder and V, Proposition Hogan ar including all of the definitions manslaughter, give his gues that trial court’s refusal to provided in the uniform instructions. These “exculpatory on sufficiently requested instruction when as a whole instructions read process as statement violated due applicable law of this case doctrine”16 state the Black, say upholds not to "[t]hat 14. As we is the Court here stated 13.The dissent contends instructions, [setting resting faulty specific requested, instruc- if an infirm verdict more maintains, contrary manslaughter passion dissent to this tions. The heat as a defense forth Black, holding in that the mental states of Court’s offense] included are not rather than a lesser aforethought passion ¶48 are not Black, malice and heat OK n. CR desirable.” sufficiently distinguished by uniform instruc- P.3d at 1067 n. 17. therefore, requires process And due tions. informing jury that the State must instruction 10, supra. 15. See note manslaughter disprove passion the heat of de- requested the fense even when the defendant has "exculpatory states: statement doctrine” 16. The manslaughter passion heat of as a court submit exculpatory state- An statement defined aforethought Malice lesser included offense. to clear a tends ment the defendant requires intend to the defendant not murder alleged guilt, a statement from or defendant away take a intention to kill but form deliberate justify actions that or excuse tends to his/her person. A of OUJI-CR2d 4-62. the life another presence. or requires one a cool mind deliberate act is that State introduces in connection Where the passion capable of Heat of that is reflection. an admission a defendant a or of confession hand, manslaughter, a on the other homicide true, statement, which, would exculpatory if by person incapable a who is of committed acquittal, be an must entitle to him/her he/she requirement by called for the of cool reflection acquitted exculpatory such statement unless because intense emotion caused deliberation of by disproved false or shown to be has been 4-95, 4- actions of the victim. OUJI-CR2d falsity an case. of other in the The еvidence 4-98, 4-99, 97, It 4-100 and 4-101. is the may by exculpatory cir- shown statement provocation pas- the that causes the of deceased by well as direct evidence. cumstantial as and it is sion or emotion of the defendant meaning exculpatory within the A statement is passion emotion that causes the defendant to or tangible, only if it a of this concerns instruction perpetrate death. the act which results in OUJI- affirmative, specific capable matter of factual Acting passion CR2d 4-101. in the heat of need disproof. exculpatory with- is not A statement destroy the or free killer's reason not overcome merely meaning if it choice; the of this instruction passion sudden of rather the exercise of inno- restates defendant's contention precludes to deliberation and causes killer cence. act. present right Hogan prepare to his defense. We notice to sufficient allow to denying of ruling review the trial court’s Ho- his defense to the Bill Particulars. Under circumstances, gan’s requested instruction for an abuse of these the State not re- was quired v. OK to Bill discretion. Kinchion CR file a new of Particulars. 81 P.3d B. court did not its dis- The trial abuse refusing give cretion in a instruction capital sentencing stage 50 At the of Hogan’s on exculpatory statements because trial, Hogan’s first the State evi- introduced disproved police by statement was aggravating of three dence circumstances: Kinchion, other evidence in the case. See threat; Hogan presented a continuing ¶ 14, 81 P.3d at 685. Fur- OK CR heinous, especially that the murder was atro- ther, Hogan prejudiced was ab- cious, cruel; Hogan or and that murdered fully of was sence the instruction Stanley prosecution. The avoid arrest proof, instructed on the State’s burden of jury unanimously aggrava- found the second innocence, presumption voluntari- of proved beyond was tor doubt reasonable ness of his statement. Id. Hogan Nothing sentenced to death. any light jury’s record sheds on the STAGE V. SECOND ISSUES aggravators. two treatment the other ¶ 51 presented At retrial State evi- A. heinous, atrocious, dence or cruel and VIII, Proposition continuing aggravators.17 threat The second process claims due and that he was denied first, jury, as the no finding made of the jurisdiction the trial court to instruct lacked continuing aggravator, threat but unanimous- filing on penalty the death absent of a ly heinous, especially found the was murder Bill new of Particulars for retrial. He main atrocious, or cruel and sentenced tains that filed the notice the State could death. constitutionally substitute for a new Bill ¶ Hogan argues that the of his failure disagree. of Particulars. We unanimously presented first find he ¶49 purpose a Bill filing continuing threat acquittal effective give the Particular's is to defendant notice aggravator jeopardy, which terminated seeking penalty that the State is the death protection invoked the jeopardy double statutory aggra based on certain identified clause, prohibited charg- the State from vating so circumstances the defendant can again ing argues it at his trial. second He prepare defense. See Banks Pennsylvania, that Sattazahn v. 537 U.S. ¶60, OK CR 426. When (2003) 123 S.Ct. 154 L.Ed.2d 588 Hogan’s case was reversed and remanded for requires holding dis- ease. We trial, jurisdiction new of this matter was re agree. turned to on the district court for retrial original Arizona, charging Hogan with Information 53 In Poland 476 U.S. (1986) Degree First refiling In lieu Murder. 106 S.Ct. 90 L.Ed.2d 123 Particulars, Bill of Supreme State filed notice Court considered “whether the prior retrial, Hogan’s Jeopardy seventeen months capi Double Clause bars a further advising Hogan when, again sentencing proceeding appeal of its intent to seek the tal death, penalty. death The Notice advised from a reviewing sentence of the court that the same Bill support State intended to offer the finds the evidence to the insufficient of allegations only aggravating Particulars the same as factor on which sen the relied, the Bill of tencing judge Particulars contained in the State but does not find the Making ment support More Definite and filed death Certain evidence insufficient the Poland, 148, before his penalty.” first trial. Seventeen months was 476 U.S. at S.Ct. 106 pursue OUJI-CR 2d The State 9-15 did not the avoid arrest aggravator Hogan's at retrial.

927 54 The court held in Poland affirmed the court at 1751. The Poland reviewing the nor the court neither sentencer capital defendant who rule that “usual” prosecution the had not had decided that on appeal of his conviction obtains reversal proved penalty its case for the death and nullified original and has had his conviction acquitted petitioners the because both thus 152, 106S.Ct. at wiped clean. Id. at the slate aggravating found of an circums evidence had may subject again, he If convicted Poland, 154-55, 106 tance.18 U.S. at provided range punishment full of ed to the rejected S.Ct. at 1754-55. The Poland court rule does by The clean slate not law. Id. argument capital fail the that a sentencer’s however, if has been apply, the defendant aggravating particular ure to find a circum did acquitted prosecution not because the by alleged prosecution stance the constitutes A penalty. for the Id. prove its case death “acquittal” an of that circumstance for double penalty acquitted the death of defendant Poland, jeopardy purposes. 476 U.S. at 155- jury agrees appellate court or whenever 56, 106 S.Ct. at 1755. The court refused to prosecution has the failed decides sentencing capital hearing the as a set “view penalty. for death See prove its case the aggra existence each of minitrials on the of Missouri, 451 U.S. Bullington v. vating aggravating circumstance” because (1981)(defendant 1852, 68 L.Ed.2d 270 S.Ct. separate penalties circumstances are not by sentencing jury capital to life sentenced offenses; the rather are standards that penalty acquitted of the death has been guide the choice the al sentencer’s between Jeopardy forbids the state the Double Clause imprisonm of death ternative verdicts and life on seeking penalty the death retrial ent.19 Id. at S.Ct. at 1755.Poland rule, holding reversal of followed the State is the event the defendant obtains the usual seeking penalty the conviction); barred from death Rumsey, 467 Arizona v. U.S. who has not been retrial a defendant L.Ed.2d S.Ct. acquitted penalty the of the death State (1984)(sentencer’s erroneous, finding, albeit may present any aggravating evidence present aggravating circumstance is that no supported the record.20 circumstance resulting imposition of a life sentence capital acquittal barring abrogates a second sen Po- Nothing is an Sattazahn nothing Hogan’s holding supports land’s proceeding). tencing retrial, petitioners again were convicted petitioners in were convicted At 18.The Poland robbery arising ap- petitioners out of a of a double murder currency death. Id. The and sentenced to at courier. Id. at 106 S.Ct. Supreme arguing, pealed to Arizona Court phase, sought penalty prove the State At the alia, Jeopardy Clause inter the Double statutory aggravating two cir- the existence reimposition penalty of the death because barred justify imposition death cumstances acquitted appellate previously had court (1) penalty: pecu- the murder was committed sup- by finding the evidence insufficient to them (2) especially niary gain; and the murder port aggravator found the sentencer. sole heinous, depraved. judge, trial cruel or Id. The at 129. Id. at 106 S.Ct. 90 L.Ed.2d sentencer, rejected "pecuniary acting gain” Supreme rejected Court the double The Arizona theory that circumstance on the the cir- jeopardy affirmed death sentence. claim and proof killing required of a contract cumstance Supreme affirmed Id. The United States Court proof was no of such in record. and there Supreme Court's Id. the Arizona decision. judge found that State had Id. The "especially proved nous, were hei- murders scheme, capital sentencing 19. As under Arizona’s depraved,” cruel or that this circumstance finding capital sentencing jury's an Oklahoma outweighed any mitigating evidence and sen- any particular aggravating does circumstance petitioners Id. tenced the to death. require not of a defendant and itself "convict” appeal, Supreme the Arizona Court re- On penalty, death and its failure to find death sentence versed the convictions and find- particular aggravating circumstance does ing among other errors that the evidence was preclude "acquit” death a defendant support aggravating insufficient circum- penalty. "especially that the murders were hei- stance nous, depraved.” Id. at cruel or S.Ct. judge The court held the trial erred in at 1752. finding acknowledges Hogan can 20. The dissent gain pecuniary circumstance was that the prevail only to follow Po- if this declines killings contract and therefore the cir- limited to land. be on Id. cumstance could considered retrial. 928 upon argued penalty that his the death retrial.

argument Sattazahn to seek Sat here. tazahn, 112-13, 537 at 123 of a U.S. S.Ct. at 740. life sentence in lieu non- judge-imposed jury jeopardy- a by finding of his was death appealed 56 Unlike who Sattazahn majority terminating The Sattazahn event. by imposed judge by opera sentеnce a a life inability jury’s found that a disagreed and law, Hogan appeals of a death tion sentence phase penalty in the of a reach a decision by imposed jury guilty a verdict of on a on resulting in of a capital imposition plus aggravating By murder circumstances. statutorily life did not mandated sentence sentencing Hogan to death at his first trial “acquittal” of the offense the constitute an finding especially on a murder hei plus ag- “murder Supreme now terms nous, atrocious, cruel, Hogan’s jury clearly or to bar gravating sufficient circumstances” acquit plus aggrava did not him of murder seeking penalty prosecution from the death Therefore, ting he circumstances. cannot Sattazahn, 112, again 537 U.S. at on retrial. a claim make of entitlement to a life sentence imposition 740. The mere of a 123 S.Ct. at acquittal operation basis of or on the either acquittal is not an of the death life sentence jeopardy-termi In the of a of law. absence jeopardy purposes. To penalty nating for double entitling event him to a life sentence seeking penalty (i.e., acquittal by jury aggravating bar the the death State on circum retrial, imposition of must an affirmative deci- stances and life sentence on there be or finding by appellate of insufficient by jury not evidence sion the defendant’s first aggravators), of court all retrial for sentence, murder impose acquittal a i.e. an of death aggravating plus circumstances is not barred Id. at penalty the death on the merits. 106- jeopardy grounds.21 on double 07, 123 737. Because Sattazahn’s S.Ct. reaching first deadlocked without a had claim, Contrary 57 to his Part III of the aggravating circum- regarding decision opinion (joined by justices) three Sattazahn stances the trial court im- and thereafter support position does that his first sentence, posed a life Sattazahn could not effectively acquitted him of the continu- “acquitted” had him aggravator. establish that ing opin- threat Part III of that proceed- during capital-sentencing his first application Apprendi ion discusses the of v. ing. jeopardy not termi- Consequently, Jersey22 Ring had v. New Arizona23 in the nated; appeal wiped capital sentencing successful of jeopardy Sattazahn’s context double permitted aggravating and the state was claims.24 slate clean Because circumstances holdings punishment 21. The dissent misconstrues our fact increases the maximum State, 62, 627, defendant, imposed 1992 OK CR P.2d may be on a that fact consti- Crawford 640-41, State, 72, Cheney v. 1995 OK CR an element tutes that must found a Perry P.2d doubt). beyond a reasonable 533-37, P.2d the Satta- misunderstands jury’s non-finding a distinction between of zahn U.S. 23. 536 122 S.Ct. 153 L.Ed.2d aggravating acquittal an circumstance and an (2002) (holding Sixth 556 quires Amendment re- plus aggravating the merits murder circum- jury, judge, that a not a find the existence entitles a sen- stances that defendant life circumstance, any aggravating and that Crawford, Cheney, Perry examples are tence. doubt). beyond Hogan’s be found reasonable the state cases in which this Court found did aggravators jury, judge. were tried to not a prove penalty, finding case for death its Ring is no There issue here. plus acquittal ag- that constitutes an gravating of murder legally circumstances and entitled justices joining dissent counts two Contrary those defendants to life sentences. C.J., deceased, claim, (Rehnquist, III Part now was the these for dissent’s cases do not stand III) justice joining Part and the four proposition rejected third dissen- that this Court Poland in any years rejecting found manner for almost ten ters doctrinal basis Sattazahn jury’s particular aggravator position to find a failure for the Poland This decision. is not acquittal. point reading constitutes supported by This is further supported a careful Sattazahn. decision, the fact that cited this Court Poland justices II of Part five Sattazahn approvingly in Romano v. OK CR spoke approvingly Bullington of the so-called line ¶ 66-68, 92, 117-18, decided a case of cases which includes Poland: days Cheney. eleven after Bullington just of cases Under cussed, line dis- double-jeopardy 147 L.Ed.2d the touchstone U.S. S.Ct. (2000) (holding protection capital-sentencing proceedings if existence

929 plus aggravating cireum- of an “murder equivalent as the functional operate Rumsey stance(s).” Thus, [Arizona v.] offense, a murder is greater aof element 203, 2306, 104 S.Ct. 81 L.Ed.2d [467 U.S. of murder included offense lesser distinct (1984)] focus on whether 164 was correct to circumstances. aggravating plus one or more findings that consti a factfinder had made to a maximum exposes a defendant Murder aggravating “acquittal” of the cir tuted an plus murder imprisonment; life sentence of cumstances; but the reason issue the maxi- aggravators increases or more one capital-sentencing pro central is not that a The Amend- to death. Sixth mum sentence trial,” ceeding “comparable to a ... but judge, find jury, a not a requires that ment ag plus that “murder one or more rather any aggravating circum- of the existence separate a of gravating circumstances” is In doubt. Part beyond a reasonable stances simpliciter. fense from “murder” Sattazahn, the court plurality a III of Sattazahn, 112, 123 at 740.25 537 U.S. at S.Ct. agreed: -Ring world, Jeop- the Double post jury In the mur- Hogan’s first found that the 58 can, must, apply heinous, atrocious, to some ardy and cru- especially Clause or der was proceedings aggrava- consistent capital-sentencing plus him of murder el and convicted circumstance(s). If of the Fifth Amendment. were we to treat ting with the text Even unanimously separate concludes that a State a offense as jury aggravator a each as proving distinguishing than to meet its burden desires rather has failed simpliciter cir- and aggravating separate or more offenses murder existence of one circumstance(s), aggravating cumstances, double-jeopardy protections plus murder jury only Hogan’s first thing we know about “acquittal” on the offense attach to that ju- acknowledges post-Apprendi/Ring “acquittal.” the Court's Peti- there has been an whether sentencing proceedings capital risprudence that that the here cannot establish tioner equiva- during cap- proof are functional of facts that “acquitted” him his first involve the court thus, jury: of offеnses and ital-sentencing proceeding. As to the lents of elements extent, sentencing proceedings by capital are to be returned the foreman The verdict form offenses,” sepa- separate 9-to-3 on treated as "trials stated that deadlocked plus aggravating being cir- penalty; rate offenses murder impose the death it made whether to simpliciter. alleged aggra- It means findings respect to the cumstances and murder no with sentencing proceed- only Ring, capital vating That result —or more that under circumstance. fairly ings longer proceedings in which sentence appropriately, are no non-result —cannot applied findings enhancing and in some acquittal factors are found "based on suffi- be called an by sentencing judge, discretionary instead, a but legal life manner entitlement to the cient to establish (like are facts elements of those factors sentence.” 109, 732, Sattazahn, offense) by jury beyond a be found at 123 S.Ct. an that must 537 U.S. 101 only Rumsey, the dissent (quoting doubt. Not does v. 467 reasonable 154 L.Ed.2d 588 Arizona Sattazahn, 2305, controlling reject would 164 it S.Ct. 81 L.Ed.2d misread U.S. may hap- (1984) Bullington authority by attempting what referring approval to divine with Missouri, pen a future case. U.S. 101 S.Ct. Arizona, (1981) L.Ed.2d 270 and Poland aggravators justices equate L.Ed.2d 123 25. While these 106 S.Ct. U.S. crime, jury's added). does not mean elements of a (1986))(emphasis aggravating particular circum- grappled to find a with the is- failure dissenters Sattazahn by prosecution an entry alleged constitutes jeopardy stance of whether is terminated sue that, Rather, aggravators acquittal. are elements when the life sentence state-mandated greater proven, of murder establish the offense punishment. here con- if The dissent deadlocks dissent, aggravating If the re- plus circumstances. com- 6 of the when tends that Sattazahn alleged aggravators jects more justices in the one or position the Part bined with life, has sentencing defendant to the defendant capital sentences the plurality, that a III establishes aggravating plus cir- acquitted of murder been proceeding trial on each individual is mini acquit- jeopardy to that attaches jury's find a cumstances and aggravator that a failure to Sattazahn, at 123 S.Ct. at 740. acquittal. 537 U.S. aggravator tal. particular constitutes "[tjhis prior finding with the court's Such a is consistent dissent states Sattazahn defendant is not purposes converse is if the of the Dou- cases. The ... that for has determined Clause, plus aggravating circum- sentencing acquitted capital proceed- of murder Jeopardy ble successfully appeals, the state can aggravating ings involving proof stances of one or more any aggravator sup- using penalty separate the death seek factors are to be treated as trials (Id. ported Id. at S.Ct. offenses, sentencing proceedings.” the record. not mere 6). S.Ct. at 747 n. at 126 n. 930 unanimously Stanley’s that it did not find that the photograph admission of “in-life”

continuing aggravator beyond rights threat existed violated his under the Ex Post Facto a reasonable doubt. This is not the same as it Clause because was not at admissible finding aggravator Stanley. a unanimous that the does time he killed all; jurors may at some have exist found ¶ 61 The United States Constitu Jeopardy it while others did not.26 does expressly prohibits tion enacting states from attach and bar retrial in that situation. See I, 10, post § ex laws. U.S. Const. art. facto Sattazahn, 109, at 537 U.S. 123 S.Ct. at 738 cl. 1. post inquiry “[T]he focus of the ex facto (stating following hung a retrial nor- legislative change is not on whether a pro mally Jeopardy does not violate the Double ambiguous duces ‘disadvantage’ some sort of Clause). [to affected ... offenders] but on whether ¶ reason, 59 For that this ease does not any change such alters the definition of crim implicate protecting the concerns of the final- inal conduct or penalty by increases the ity acquittals present Bullington punishable.” which a crime is California Rumsey. There is no reason to shield a Morales, Dep’t 499, Corrections v. 514 U.S. Hogan’s position defendant in from further 3, 1597, 3, 506 n. 115 S.Ct. 1602 n. 131 litigation; litigation only hope further is the (1995); Scott, L.Ed.2d 588 Barnes v. 201 Poland, 156, he has. 476 U.S. at 106 at S.Ct. (10th 1292, Cir.2000). F.3d 1295 Permitting Hogan’s 1756. Neither present does case the admission of an photograph “in-life” in a by Hobson’s choice discussed the Sattazahn homicide trial neither alters the definition of Sattazahn, 126,123 dissent. 537 U.S. at S.Ct any crime nor penalties increases the for that J., (Ginsburg, at dissenting)(noting 748 that a crime. The Ex Post Facto Clause is not position defendant in Sattazahn’s must relin- by application violated of a new eviden- quish right potentially either his to file a tiary capital rule trial for a crime com appeal, meritorious state-granted or his enti- evidentiary mitted change. before penalty). tlement to avoid the death When ¶70, 51, Mitchell v. 1994 OK CR Hogan appealed and succeeded in overturn- 1186, 1204, grounds overruled on other ing vacating his murder conviction and Ward, F.Supp.2d Mitchell v. sentence, wiped death the slate was clean. (W.D.Okla.1999). Legislative changes in ad retrying The State was not barred Ho- testimony missible during evidence gan on plus aggravating murder circum- stage second capital of a procedural. are presenting stances support evidence to Mitchell, 70, 51, 1994 OK CR 884 P.2d at continuing aggravator. threat 1204. This claim therefore is denied. ¶ Hogan also challenges the con C. stitutionality § arguing the amended IV, Proposition 60 In Hogan chal the admission of an photograph “in-life” with lenges Stanley’s the introduction of “in-life” regard out evidentiary balancing test photograph during stage. Hogan second process § violates due vague and makes Stanley killed January At the time and overbroad. maintains that crime, he photo committed the “in-life” admissibility blanket photographs such un graphs were Thornburg inadmissible. See necessarily jurors exposing risks prejudi 1999 OK CR 985 P.2d cial information. 1244. In Legislature amended 12 § permitting O.S. the admission in presume 63 We legisla prosecution for constitutional; criminal homicide of an tive act is party attacking appropriate photograph the victim while the statute has proof the burden of that it is alive Thomason, when attorney offered the district not. State v. general appearance

show the and condition of statutes, 932. We construe victim while alivе. claims reasonably possible, the whenever uphold ("that court fairly found that a lack of find- Sattazahn non-result-cannot be called ings respect aggravator acquittal findings to an is not an 'based on sufficient to estab- Sattazahn, acquittal. ”) legal 537 U.S. at 123 S.Ct. lish entitlement to the life sentence.' Stanley was conscious void relevant show constitutionality. Id. A statute is their defending herself. ordinary during the attack and vague that men of it is so when photographs was not necessarily guess at its The relevance of these intelligence must outweighed by any of the dan- substantially 2403 is not void meaning. Id. Section O.S.2001,§ gers are forth in of the statute set vagueness. The words self-explanatory. and clear ¶ photographs nine 67 The other ¶ claim that Contrary Hogan’s 64 Stanley pictures of at the consisted of seven § the wholesale admission permits Stanley’s depicting close-up shots of scene makes it photographs, the statute “in-life” (State’s 64-70) Ex. and two various wounds “appropriate” photograph that one clear Stanley at the medical examiner’s office § O.S.Supp.2003, is admissible. gash her neck depicting large wound on photographs would be those Inappropriate (State’s 90-91). angles Ex. from two different in balancing test articulated that violate the gruesome. Deciding photographs are These of that section. preceding sentence more such exhibits are relevant and whether Here, Stanley’s “in-life” the State offered however, is within probative prejudicial, than graduation photograph of photograph, Lockett, court’s discretion. 2002 OK the trial Stanley during in the second taken ¶ O.S.2001, 425; 53 P.3d at CR Stanley’s impact testimony of stage victim rele photographs §§ 2402-2403. The were was offered “to photograph mother. The Stanley prove and that suf vant tended general appearance and condition of show evi prior to her death. The fered abuse photograph alive.” The was the victim while Stanley’s preceded by death was dence probative value was not appropriate and its including physical abuse conscious serious by danger of substantially outweighed suffering strong virtually physical was prejudice. The trial court did unfair us, we uncontroverted. On record before admitting it. its discretion abuse court its discre cannot find the trial abused admitting photographs. tion these challenges Hogan also the admission during sec- photographs twelve introduced Stanley’s murder was stage prove ond D. heinous, atrocious, Ho- especially or cruel. X, Proposition Hogan In claims sentencing gan he was denied a fair claims tactically precluded calling from that he was 42-44, 64-70, Exhibits

trial because State’s mitigation and from character witnesses extremely gruesome unfairly were 90-91 testify allowing mitigation witnesses to other prejudicial. erroneous fully of the trial court’s because witness, concerning ruling was State’s rebuttal prove 66 To a murder es cruel, heinous, atrocious, The trial court barred the State Kevin Freeman. pecially introducing evidence from certain competent evidence indicat Stаte must introduce Hogan tending through Freeman to show ing preceded tor the victim’s death ruling continuing The court’s Davis was a threat. physical or serious abuse. See ture had 36, 39, Freeman’s evidence 81. was made because timely to the defense. physical disclosed support finding of serious been To however, found, that Freeman abuse, en The trial court must show the victim State if defense testify in rebuttal physical suffering prior to could dured conscious testimony “opened the Freeman’s and 44 were door.” death. Id. Exhibits Hogan’s good chara evidence of Stanley’s showing hands would rebut pictures of cuts on photographs were cter.27 defensive wounds. These Freeman, cousin, the conven- Hogan’s testify parents to out the windows in did that he shoot Hogan that if he together had indicated Hogan burglarized ience store or that some businesses during of their Hogan a witness one ever encountered of the homicide and that around the time burglaries, they the witness so shooting would have to kill conven- had admitted BB’s a closed court also angry being identified. The trial over could not be because he was ience store testifying Hogan precluded Freeman trial court did not allow Freeman fired. The accomplice into gun to break testify asked him and another had stolen a from his that the 69 While the Court ruled State would hurt mine” were too emotional and if his unfairly prejudicial

could call Freeman rebuttal testimo- to be considered Hogan’s ny relevant to rebut char- determining punishment. would be He also evidence, it objects acter refused to advise the de- Stanley’s testimony mother’s specific Hogan’s fense what evidence of nightmares she had where she would wake- open character would the door to the State’s up “screaming for run.” Lisa to consequence, rebuttal. the defense was ¶ 73 Evidence about the victim and strategic faced with a decision. However financial, emotional, about the psychological, been, might difficult that decision have physical impact of the murder on the trial court committed no error here. family O.S.2001, victim’s is admissible. 21 701.10(C); O.S.2001, § § ar E. State, gues Cargle case is like v. 1995 OK XI, Proposition Hogan 70 In attacks the 77, CR 909 in which P.2d this Court First, impact victim evidence this case. he found error in the admission of certain victim probative claims that value of victim impact Cargle evidence. The court held that impact substantially evidence was out- capital sentencing reliable, must be accurate weighed by danger prejudice of unfair and, nonarbitrary consequently, and inflam exclusively because it focused almost on the matory, impact irrelevant victim evidence impact Stanley’s emotional death on her financial, that fails to show the psychological Second, parents. argues he that victim im- physical impact of the victim’s death on pact place evidence has no in Oklahoma’s family, her Cargle, should be excluded. 1995 sentencing scheme because the evidence acts ¶¶ 81-82, OK CR 909 P.2d at 830. Trial “superaggravator.” Finally, as a he con- carefully courts must probative balаnce the tends that its admission this case violated particular value of impact victim evidence the Ex Post Facto Clause. against danger prejudice of unfair to the defendant, vigilant and be to limit such evi consistently 71 This Court has dence that does fall within the statute rejected impact that victim claims evidence permitting its admission. prepai-ed superaggravator acts as a and that its admis by Stanley’s statements parents read were sion in criminal trials where the crime was impact like the victim evidence con legislature passed committed leg before in Cargle; demned rather the statements allowing islation it violates the Ex Post Facto emotional, contained psycho evidence of the State, Murphy Clause. See 2002 OK CR logical physical Stanley’s effects of death ¶24, 47, 876, 886; 47 P.3d Mitchell v. parents. on her The statements were con ¶9, 3, 1997 OK CR 934 P.2d 349. Ho cise and the emotional Stanley references to ‍‌‌‌​​‌‌​‌‌‌​‌‌​​‌​‌​‌‌‌‌​​‌​​​​​‌​​​‌​​​‌​‌‌​​​​‍gan authority cites no new that warrants or her death did not render the statements reconsideration. These claims are denied. unfairly prejudicial or inadmissible. We find Hogan claims the trial court the trial court did not abuse its discretion admitting erred in the victim-impact evidence allowing impact this victim evidence. prejudicial this case because it was more probative, making likely than it less that the F. jury’s sentencing reasoned, decision was a response question moral IX, of whether 74 In Proposition Hogan argues that Hogan penalty. deserved the Hogan application heinous, death especially by Stanley’s atrocious, claims several par statements aggravating or cruel circumstance referring ents “special angel,” to her as a to situations where the evidence shows the God,” “gift Stanley’s mother’s during decedent’s death occurred an alterca- statement, “I protected loved and Ken’s chil tion initiated the decedent renders it un- dren comprehend and could not constitutionally vague that he and overbroad unless a

pawn shops guns burgla- to steal gun during burglary. use in their afraid would use a they ries and that declined because were The failure to so yond inten- a reasonable doubt. defendant required that the finding is contends, beyond instruct, imposi- in the harm he resulted tionally gratuitous inflicted the altercation. not meet rage born of of a death sentence that does caused tion constitution- repeatedly upheld reliability require- Eighth have Amendment’s We aggravating circumstance ality rejected of this claim in Torres v. ments. this We ¶¶ Duty here. 5-6, this issue decline to revisit State ¶20, 13, 89 P.3d CR finding aggrava- OK and held that a ¶ 40, Lockett, 1161; OK CR outweigh mitigating evi- ting circumstances This claim is denied. at 430. beyond a reasonable doubt is not re- dence Arizona, 584, 122 by Ring v. 536 U.S. quired ¶ Hogan asserts that the evi also (2002). 2428,153 Torres is S.Ct. L.Ed.2d prove case was insufficient dence dispositive. This claim is denied. beyond aggravator a reasonable doubt. sup sufficiency of the evidence When challenged ap aggravator is porting an G. light in the most review the evidence peal, we XII, Proposition whether to determine favorable to the Statе penalty statute claims that Oklahoma’s death fact could have found the any rational trier of Clause of the violates the Establishment necessary aggravating support facts and is therefore unconstit First Amendment beyond a reasonable doubt. circumstance Hogan that the effective utional.28 contends ¶85,

DeRosa, 89 P.3d at 2004 OK CR punishment function of execution as a is de religious notion pendent upon the sectarian ¶ jury’s upholds a 76 This Court afterlife, such as heaven and of meritbased aggravating circumstance finding of this post-execution Because a neutral exis hell. conscious, by proof supported it is when experi tence would not cause the offender prior to physical or torture serious abuse purposes punishment ence the secular Davis, 36, 39,103 P.3d death. right privi property, the loss of or such as Hogan that at 81. The evidence here showed Hogan argues penalty serves lege, the death Stanley times. That she stabbed numerous post- function unless the offender no secular during the upright position in an remained circum continues to exist under execution was conscious. stabbing tended to show she religions that contemplated those stances pool indicated that The blood evidence punitive of a afterlife. adhere to the doctrine fatal, occur until arterial stab wounds did not pen By reasoning, argues, he the death this Stanley stabbing. had defen the end of the unconstitutionally religion. alty advances attempt wounds on her hands from her sive attack, providing further evi to fend off the pen Oklahoma’s death Whether conscious. This dence that she had remained alty statute violates the Establishment finding beyond a reason supports a evidence question impression for is a first Clause Stanley that was conscious and able doubt A does not violate the this Court. statute happening to her and that aware of what was (1) if it a secular Clause has Establishment prior to physical suffered serious abuse she (2) principal pri legislative purpose, its her death. nor inhibits mary effect neither advances (3) religion, it not create excessive and does Finally, Hogan argues that his government and reli entanglement between the miti death sentence is not valid because Kurtzman, 403 U.S. gion. Lemon v. outweighed aggrava gating evidence the sole 612-13, 29 L.Ed.2d 91 S.Ct. ting circumstance. claims (1971); Hosp. v. Oral instructed, Tulsa Area Council as he re should have been ¶29, 14, Univ., Roberts 1981 OK aggravating circumstances quested, that the 316, 321. outweigh mitigating evidence be- must applicable Due Process to the states of the First Amend- made

28. The Establishment Clause Amendment. Cantwell provides Clause of the Fourteenth States Constitution ment of the United 296, 303-04, Connecticut, 60 S.Ct. respecting 310 U.S. "Congress an shall make no law (1940). religion.” guarantee 84 L.Ed. 1213 This establishment of Appeals The Texas Court of Criminal 82 Next contends that the rejected penalty justifications claim that Texas’s death penalty for the death are inval the Establishment statute violated Clause argues penalty id. He the death religion Holberg advanced neither cost-effective nor serves as a deter (Tex.Crim.App.2000). The Hol S.W.3d 137 support rent to would-be offenders. To this stated, primary berg court effect of the “[t]he Hogan requests evidentiary hearing claim an nature, penal in penalty] statutes is [death supplement the record with evidence con religious, fact that mere cerning funding presen this issue and for the are consistent with the tenets of a statutes testimony expert tation of on this issue. Not particular faith does not render the statutes showing penalty even a clear that the death in violation of the Establishment Clause.” wholly was not failed to cost-effective Holberg, Holberg at 140. The S.W.3d justify deter criminal this acts would following court cited the secular beliefs it abolishing penalty. the death The issues supporting legislature’s viewed as deci Hogan policy clearly raises here are matters penalty to enact sion Texas’s death statutes: purview legislature within the and not (1) Hogan’s request the courts. penalty only propor- the death is the for eviden- crimes; tiary hearing punishment is denied.

tional for certain (2) ensures, penalty the death at a mini- ¶ Hogan argues also that Okla mum, the offender will never penalty procedure homa’s death in 21 O.S. anyone again; harm 2001, § 701.11 violates the Oklahoma Consti (3) may penalty the death deter some Specifically Hogan complains tution. persons (professional criminals and jury procedure provisions violates the life), already imprisoned those against special § verdicts in art. 15. We others, possibly committing Romano, rejected argument 1995 OK murder; and ¶74, 105, 125; CR 909 P.2d at that case is (4) imprisonment parole life without is dispositive here. claim This is denied. not a viable alternative to the death because, penalty H. (a) capital danger are a to offenders ¶ XIII, Proposition In 84 raises six environment, prison in others previously issues in settled this Court (b) persons imprisoned literally for life prevent any finding order to of waiver in prop- have little incentive to behave subsequent proceedings. state or federal erly, and previously concedes that we have re (c) undesirable, costly, possi- it is and State, jected each contention. See Harris v. bly keep persons inhumane to in ¶1, 751(Okla 52, 731, 2004 OK CR 84 P.3d prison they actually until die from capital sentencing homa’s scheme is constitu age old or disease. tional; capital right defendant has neither to Holberg, Gregg 38 S.W.3d see also v. last; right allocution argue before nor Georgia, 183-86, 428 U.S. 96 S.Ct. right separate jury defendant no has for 2930-31, (1976)(plurality- 49 L.Ed.2d 859 State, capital sentencing); Williams v. 2001 purposes social are retribution and deter- ¶24, (instruc OK CR 31 P.3d 1049 rence). defining parole capital tion life in without ¶81 unwarranted); reasoning Holberg find the in We case Al-Mosawi (it persuasive 59, 78, purpose and that the death 1996 OK CR 287 is penalty in puni- statute Oklahoma is likewise not error to exclude evidence on the cost- purpose primary tive nature. penalty);29 and effectiveness of the death Ber ¶¶ 49-50, effect penalty nay of our death statute is not the (no any religion; right advancement of it does not P.2d constitutional to a making violate the Establishment Clause. instruction residual doubt a mit- Hogan’s request evidentiary We denied for and an effectiveness deterrent value of the death XII, hearing expert penalty Proposition supra. and funds for an on cost circumstance). arguments corresponding persuad- dant and the We are igating Id. defense counsel. these issues. The ed to reconsider are denied. Proposition XIII claims raised First, Hogan argues that jurors equate “conditioned

prosecutor I. ensuring justice responsibility their imposing penalty” throughout trial. the death XIV, Hogan claims the Proposition In85 type argument claims this fosters an He failing to instruct trial court erred argues it is against “us them” attitude and it stage that was determine second improper prosecutor for a to tell a police and of his statements voluntariness justice prosecutor’s is the view of statements disregard if it found the them justice. portions segments of two He cites Hogan failed to voluntary. Because were not closing argument prosecutor’s which read instruction, we object request such in full: Norton, only. See plain error review justice? Because that’s the ulti- What 409; P.3d at OK CR you can walk mate issue. What verdict O.S.2001,§ 3001.1. bring to us back into this courtroom ¶86 shows, Hogan con- The record say represent out loud that will cedes, proper gave the the trial court justice? in this lawsuit parties involved concerning the voluntariness of instruction you now have Because that’s the issue that stage police in its first his statements to you. That we talked before Justice. shows that The record further instructions. through all voir dire. We talked about jury that its trial court instructed the I know I discussed it with about it —and applicable dur- stage first instructions were you individually, every one of each and appropriate. The ing stage where second you justice, and the fact that take issue of Hogan complains was omitted instruction justice bring an oath to to this courtroom. incorporated in fact into the trial court’s you promised you me that That’s what stage This claim is second instructions. would do. without merit. you that And I would submit to based you and the facts that

the law that have you’ve heard that there is no verdict that PROSECUTORIAL MISCONDUCT VI. (indicating), represents justice for this no XV, Hogan ar Proposition bring court- you could into this verdict parts prosecutor’s gues that certain of the represents justice other than the room that prosecutorial constitute closing arguments you go And I ask that penalty of death. right pro to due misconduct and violated his duty you your upstairs and that do only Hogan objected to cess and a fair trial. jurors you to this court- and that return comments, the error preserving one of the for Mr. Ho- room with a verdict of death appeal; remaining remarks for we review the gan. only. appeal plain on error identified ¶ objection no in either 90 There was ¶16, 38, State, Matthews v. 2002 OK CR arguments This condemns instance. 907, P.3d per improperly express prosecutor’s ¶88 appropriateness of the reviewing pro opinion sonal as to In due State, claim, penalty. Washington v. whether the death See cess we must determine ¶ 960, 979; 63, P.2d Hogan’s prosecutorial misconduct so infected 1999 OK CR ¶55, State, fundamentаlly 1998 OK CR un Ochoa v. trial that it was rendered Court, however, fair, This has jury’s should not P.2d such that the verdict DeRosa, rise to the level found comments do not upon. 2004 OK CR such be relied ¶ re plain prosecutor’s the al error where 89 P.3d at 1145. We evaluate terms, personal phrased “not the context of the marks were leged misconduct within jury’s understanding of trial, appealed to the considering propri but entire actions, upheld.” justice asked that standard be also the ety prosecutor’s but ¶ 70, 44, 884 against Mitchell v. 1994 OK CR strength of evidence the defen- disregard mitigating entirely. 1202. When the remarks are evidence context, prosecu- it is clear that the Hogan prosecutor’s argument taken in ques- cites the justice required arguing tor was tioning mitigating whether his actu- evidence imposed particu- penalty be under the death ally mitigated against penalty.30 the death Hogan’s lar facts and law of case and was not objected Hogan argument. to this line of opinion. Hogan stating personal her has Hogan’s objection, The trial court overruled rise to the failed to show these remarks level prosecutor but told the to “read the instruc- Lockett, plain error. See OK CR defining mitigating tion” evidence. ¶ 21, 53 P.3d at 425. “Mitigating circumstances are Hogan 91 Next claims that the which, fairness, sympathy, those and mer prosecutor denigrated by arguing his defense cy, may degree extenuate or reduce the Stanley’s that his statements about death culpability moral or blame.” OUJI-CR2d self-serving by telling jury were 4-78. The fact finder determines what cir Hogan Again, “butchered” her. there were mitigating are cumstances under the facts objections no to these statements. These Harris, and circumstances of case. deprive Hogan comments did not of a fair rejected we the defendant’s claim that sentencing. trial or “Parties have wide lati prosecutor mitigating mischaracterized his tude, closing argument, to discuss the by rhetorically asking jury evidence evidence and reasonable inferences from evi whether it rendered the defendant “less re dence, required only and relief is where Harris, sponsible” for his crimes. 2004 OK grossly improper argument and unwarranted ¶1, 59, prosecu CR 84 P.3d at 752-53. The rights.” affects a defendant’s Hanson v. Hogan’s type tor in case made this same Harris, argument. prosecutor’s As prosecutor’s remarks were reasonable argument, entirety, when considered in its Hogan inferences based on the evidence. piece Hogan’s took issue with each miti again prove plain fails to error. evidence, gating but did not tell the Third, Hogan claims that ignore properly it. The instructed prosecutor erroneously told the not to mitigating circumstances. We find no mitigating consider his evidence when the error here. stated, prosecutor you “I would submit to certainly respect mitigator Fifth, num Hogan claims that six, proof ber that there is no at all that Mr. prosecutor argued that all murders deserve Hogan feels one ounce of remorse for what penalty. Hogan object. the death did not Stanley.” he did to Lisa Renee There was prosecutor’s argument When the is read objection no to this statement. The com context, prosecutor pun told the its ment was a reasonable inference based on ishment decision fit should the crime that Hogan prove the evidence and thus cannot argument committed. This was not plain error. Id. improper plain cannot show er ror.

¶ Fourth, Hogan pros claims the right ecutor violated to a fair and reliable ¶ Hogan argues also that the cumulative sentencing proceeding by equating guilt with arguments effect of these contributed to his culpability the reduction of moral in its sec conviction and death sentence. We have stage closing argument. ond Because the error; no found individual therefore we do purpose mitigating of evidence is to reduce any not find relief is warranted when the culpability sentencing, legal moral not re aggregate. remarks are considered in the offense, sponsibility for the see 2d OUJI-CR ¶ 4-78, prosecutor’s argu Hogan argues, finally, No. he contends the ment effectively any confused the told it the extent of these claims are deemed Hogan quotes part of one sentence from find that the State of Oklahoma has in fact pages complaint. proved aggravators five that he references for this and that in fact the miti- reads, gators certainly any sentence "I in full would submit to don’t exist or could not in you you’re going way culpability based on the evidence reduce his for this offense." review, object, conducting he After this Court by counsel’s failure forfeited may any that is war- right to the order corrective relief Amendment denied his Sixth was O.S.2001, Having found ranted or affirm the sentence. 21 of counsel. effective assistance 701.13(E). error, prevail § on this claim Hogan cannot no test; cannot show he

under the Strickland ¶ the record in this 100 We have reviewed ¶30, 15, Lockett, prejudice. 2002 OK CR conjunction Hogan’s case in claims for at 424. This claim is denied. Hogan’s relief and have found that conviction not the result of and death sentence were ERROR VII. CUMULATIVE error, misconduct, prosecutorial or trial court improper testimony. evidence or witness We XVI, Hogan Proposition In Hogan’s therefore find death sentence was in his if no individual error claims even factor, imposed any arbitrary because of reversal, merits the cumulative effect case passion, prejudice. or during committed his trial necessi the errors or modifica of his conviction tates reversal jury’s upheld have also find- We has of his death sentence. This Court tion heinous, ing especially that the murder was “numerous recognized that there are when atrocious, aggravating or cruel because the during irregularities [a] the course factually circumstance is substantiated. The rights of the defen prejudice that tend to Judgment and Sentence of the trial court is dant, required if the cumula reversal will be AFFIRMED. deny tive effect of all the errors was DeRosa, a fair trial.” 2004 OK defendant JOHNSON, LEWIS, concur. C. JJ.: ¶19, 100, (quoting at 1157 Lewis CR 89 P.3d LUMPKIN, V.P.J.: concur results. 1176). Hogan’s claims for We have reviewed CHAPEL, P.J.: dissent. in this case and con relief and the record that, although his trial was not error clude CHAPEL, Dissenting: Judge, free, any irregularities, errors and even when aggregate, require do not considered today’s opinion 1 I dissent because not render his trial relief because did majority’s disagree I with the resolution verdict, unfair, fundamentally jury’s taint the I, V, VI, Hogan’s Propositions and VIII of Any sentencing unreliable. errors or render appeal.1 doubt, beyond harmless a reasonable were ¶2 Hogan that he killed Lisa admitted individually cumulatively. first-degree Stanley. His defense to the him that he killed charge against murder was VIII. MANDATORY SENTENCE passion,”, constituted her in a “heat of which REVIEW manslaughter than mal- first-degree rather I, XVII, Proposition ice-aforethought con- murder. Proposition 99 In have been up- Hogan claims that his should tends that his death sentence cannot be defense, ie., that mandatory theory on his sentence instructed held under this Court’s O.S.2001, heat-of-passion manslaughter, killing § re- review. Title 21 701.13 required prove, and that the State was quires “[w]hether this Court to determine doubt, beyond a reasonable that he did imposed of death was under the sentence majority Today’s kill passion.2 in the heat of passion, prejudice or the influence factor; accepts components all opinion the evi- the basic arbitrary other and whether to reach the jury’s judge’s finding Hogan’s argument, but declines supports the dence they portend. conclusion statutory aggravating a circumstance.” of given by trial court. Hence he resolution have been the 1. I must also note that I concur in the court, only by Proposition argues of stare decisis. of II reason of the trial sua that the failure theory sponte, jury de- to the on his of instruct object jury instructions did not 2. disprove was burden to it fense and the State's retrial, given during nor did he offer an his plain error. the he now asserts should instruction of sort murder, majority opinion accepts degree required the fol- the 3 The State is to es- components Hogan’s argument. lowing tablish, doubt, beyond a reasonable that the First, duty “trial courts have a to instruct the acting pas- defendant was in the heat of features of the law raised jury on the salient logical sion. This conclusion is also the ex- request.”3 or without a evidence with the precedents tension of the of this Court. Second, Hogan degree first “defended the Wilbur,7 Mullaney 5 In v. a unanimous by attempting charge to convince the murder Supreme Stanley Court held that “the Due jury did not kill with a Process that he in requires prosecution prove intent but rather acted a heat of deliberate Clause the to be “[ojnce Third, passion.”4 a defense is yond a reasonable doubt the absence the raised[,] the defendant is entitled to an in- passion provocation heat of on sudden when theory struction on his of defense.”5 properly presented the is issue a homicide Fourth, persuasion burden of remains “[t]he Lofton,9 case.”8 In United States prove on the State to each element of the Tenth of Appeals Circuit Court concluded charged beyond crime a reasonable doubt “Mullaney requires us to that a hold prove beyond to a and thus reasonable doubt defendant a federal murder case who has the absence of affirmative defense sufficiently passion raised heat of defense raised.”6 informing jury is entitled to instructions logical legal 4 Thus the conclusion to theory of the of defense and of the Govern analysis appears draw the Court’s to from duty prove beyond ment’s to a reasonable pre- that once sufficient evidence has been passion doubt the absence of heat of in order sented at trial to raise the affirmative de- to obtain a murder conviction.”10 (to first-degree charge) fense murder Maynard,11 6 In Davis v. the Tenth Cir- heat-of-passion manslaughter, the trial court cuit Appeals Court of considered Okla- required, request should be with or without a homa defendant, corpus challenge defendant’s habeas jury from instruct the jury first-degree instructions mur- heat-of-passion manslaughter is the defen- jury began by empha- dant’s defense and to instruct the der trial. The Davis court to convict the sizing order defendant of first- the limited context of habeas review.12 (citations Majority Opinion, p. passion provo- See omit- absence of the heat of on sudden ted). been, inception cation!] has almost homicide, single law of common most Id. important determining degree factor in culpability attaching to an unlawful homicide.” (internal omitted). p. 5. Id. at citations Id. at 95 S.Ct. at 1888. (citation omitted). p. support 6. Id. at (10th Cir.1985). 9. 776 F.2d 918 statement, majority opinion cites our jury uniform instructions for other affirmative defenses, which are structured such that once 10. Id. at 920. The court noted that the Lofton presented (by sufficient evidence has been either object defendant failed to instructions defense, party) particular case, to raise a affirmative "despite ample opportunity,” in that but required concluded, nevertheless, trial court is to instruct the on that the federal district that defense State and to instruct is "plain by failing court committed error” to in- doubt, required prove, beyond a reasonable jury regarding heat-of-passion struct the her de- p. the absence of that defense. See id. at 923 n. duty disprove fense and the Government’s it. Id. at 922. 7. 421 U.S. 95 S.Ct. L.Ed.2d 508 (10th Cir.1989), granted 11. 869 F.2d 1401 cert. (1975). judgment ground by vacated on another Saffle Davis, 494 U.S. S.Ct. Mullaney 8. Id. at 95 S.Ct. at 1892. The case (1990), remand, May L.Ed.2d 756 on Davis v. involved a Maine instruction that informed nard, (10th Cir.1990). 911 F.2d 415 proved that if the State homicide unlawful, was both intentional and malice afore- established, thought had been unless the defen- 12. The court noted that this kind of collateral prove, by preponderance judgment, question dant could evidence, attack on a state court " passion challenged that he acted in the heat of whether the instruction 'so infected provocation. resulting sudden Id. at 95 S.Ct. at 1883. the entire that the conviction vio- Mullaney presence process,’ merely noted that "the lates due whether 'the in- Davis, give slaughter, the trial court refused unlike emphasized The court also specifically informing additional instruction Lofton, Mullcmey and did the defendants jury only convict McCormick the that it could defense, heat-of-passion since present a not first-degree proved, murder if the State of self-defense.”13 defense at trial was his “sole doubt, beyond a that he was not reasonable jury in- examining specific Finally, after acting passion.18 in the heat of While this issue, court concluded at the Davis structions acknowledged appropriateness of instructions, those in “unlike that these Lof- instruction, such an we ruled ton, of defined malice and heat explicitly court’s failure to so instruct was revers- mutually Thus passion as exclusive.”14 error.19 We found that McCormick’s ible jury that he killed with finding Davis’s Lofton, was more like Davis than be- case “necessarily aforethought implies the malice jury cause it involved instructions that were passion.”15 of absence of heat language “mutually exclusive.”20 used “[T]he State,16 In our Court 7 McCormick unequivocal; a the trial court was murder “unique where the situation” addressed required proof of a in- conviction deliberate manslaughter heat-of-passion offense of kill[,] manslaughter should be tent while simply an alternative to “functioned not as design a killing found if the was done without murder, charge but as an affirmative instructions to effect death.”21 Thus the charged by the to the crime State.”17 states and the two defense defined the two mental they overlap was instructed did not Although McCormick’s crimes such not co-exist.22 heat-of-passion man- could on the elements undesirable, erroneous, acting passion’ he was under the 'heat of at the is or even struction ’ ” (all "universally time." Id. at 845 P.2d at 899-900. condemned.” Id. at 1405 ci- omitted). tations ¶ 16, at at 899. McCormick 18. Id. 845 P.2d proffered following specific instruction at his questioned Davis court 13. Id. at 1404. The trial: the trial court’s to instruct on whether decision heat-of-passion manslaughter was even warrant- instructed that the State has the [Y]ou are ed, id. at 1406. under the facts of that case. See beyond proving a burden of reasonable doubt did act in the heat of that the Defendant added). (emphasis The instruc- 14. Id. at 1406 you passion could convict him of First before first-degree manslaughter tions in Davis defined prove Degree Murder. If the State failed to design "perpetrated ‍‌‌‌​​‌‌​‌‌‌​‌‌​​‌​‌​‌‌‌‌​​‌​​​​​‌​​​‌​​​‌​‌‌​​​​‍as a homicide without beyond a reasonable doubt that the Defendant jury was instructed that in effect death.” The passion, you then did not act in the heat of heat-of-passion order to convict the defendant Degree First cannot convict the Defendant of manslaughter, passion "must have existed Murder, but must consider whether Defen- degree naturally destroy the such a as would guilty included offense of dant of the lesser incapable sway of reason and render the mind Manslaughter. Degree First reflection, malice afore- cool and thus exclude Id. addition, specifically thought.” was "[mjalice passion and heat of ¶28, instructed that (finding at 845 P.2d at 901 19. Id. co-exist.” Id. at 1405. cannot inap- quoted "would not have been instruction instance"). propriate in this at the Davis court con- 15. Id. 1406-07. Thus "square- passion that where heat of is not cluded at 901. 20. Id. at 845 P.2d jury’s ly raised" as a defense and where pas- "heat instructions define "malice” and at The McCormick 901. Id. co-exist, cannot "the sion” such that juiy, jury, instructed that in like the Davis was prose- specifically that the need not be instructed manslaughter, order to convict the defendant prove pas- absence of heat of cution must killing "perpe- had to find that the ...” Id. at 1407. sion. death,” design to effect while trated without finding required first-degree murder conviction "a deliberate inten- 16. 1993 OK CR 845 P.2d the defendant acted with being.” away life of a human Id. tion to take 23-24, ¶¶at 845 P.2d at 900. ¶at 845 P.2d at 899. While McCor- 17. Id. victim, killing the he maintained mick admitted noted, however, aforethought that the McCor- neces- It should be that he "lacked the malice explicit were much less than sary because mick instructions to sustain a conviction for murder ¶8 State,23 ton, McCormick, brings Hogan us to Black v. in This and like —in- jury this Court addressed instructions which heat-of-passion manslaughter voked “not just Hogan’s used at trial and a like the ones simply charge as an alternative to the just being in challenge like the one made murder, but as an affirmative defense dispute major- Hogan’s appeal.241 do not charged by Although crime the State.”26 analysis ity’s that under the assertion jury regarding Black’s was instructed Black, Hogan’s Proposition I claim fails. I first-degree elements of murder and the less- maintain, however, analysis that the of Black heat-of-passion manslaughter, er offense of on this issue was and is flawed inconsis- according all of the current uniform in- Furthermore, tent with our caselaw. offenses, jury structions for these his was not faulty analysis needlessly of Black has de- heat-of-passion manslaughter advised that layed salutary jury adoption of a uniform defense, was his nor was his informed addressing proper approach instruction defense, disprove that the State had to in heat-of-passion to a defendant’s assertion of manslaughter as affirmative defense to first-degree order for him to be convicted of first-degree murder.25 challenged murder.27 Black the trial court’s issues, just failure to instruct on these two first-degree 9 The murder defendant in Mullaney, Black —like the defendants in appeal.28 does the current Lof- instructions, actually the Davis which stated that then and is not now contained in uniform passion “[m]alice and heat of cannot co-exist.” instruction. agree always While I that it is almost the better 23. 2001 OK CR 21 P.3d 1047. prudent approach and more to instruct accord- instructions, ing to our uniform I conclude that surprisingly, Hogan struggles 24. Not to distin- the trial court's instructions were not inconsis- Black, guish his case from since the defendant in time, tent with Oldahoma law in effect at the nor appeal prevail. did not Hence em- they prejudice Hogan regard. did in this phasizes that the trial court did not use all of the court’s modification of the uniform instructions appropriate instructing uniform instructions impact upon Hogan’s challenge had no actual jury. Hogan his is correct that the trial court Proposition majority's within I. Hence the nota- should have used OUJI-CR2d 10-24 to instruct now-challenged tion that the instructions were jury regarding its consideration of first-de- largely [Hogan] pro- "based on instructions gree murder in relation to the lesser offense of posed" subsequent and its invocation of the "in- Instead, first-degree manslaughter. the court’s entirely vited error" doctrine both out to turn portions Instruction No. 13 combined various Majority Opinion, pp. irrelevant. See 10-13, 10-24, uniform instructions and 4-66. understood, Properly Hоgan's Proposition I And in No. the court Instruction modified the parallel claim is indeed an exact of the claim 10-27, specifically former OUJI-CR2d inform opportunity made in Black. We should use this required that it was "not to determine important Black and reconsider resolve this unanimously guilty that the defendant [is] not correctly. issue charged you may the crime before consider a offense," lesser included consistent with this Although join opinion I did not the Court's Court’s decision in Graham Black, acknowledge I that I did concur in result. 10-27, (In 27 P.3d 1026. OUJI-CR2d Graham, as modified in accord with was incor- Black, OK CR 21 P.3d at 1065. porated into the current version of OUJI-CR2d 10-24.) ("Nowhere 27. See id. at 21 P.3d at 1066 hand, On the other the trial court did use the the instructions was the advised that heat of appropriate defining uniform instructions for manslaughter passion Appellant's was defense or first-degree heat-of-passion murder and man- disprove that the State had the burden to heat of slaughter, key as well as the all the elements and doubt.”). passion beyond a reasonable Thus the offenses, namely, terms within these OUJI-CR2d given paralleled instructions in Black's trial 4-61, 4-62, 4-97, 4-63, 4-95, 4-98, 4-99, 4-100, retrial; Hogan's given those Black since Although Hogan argues and 4-101. object regarding failed to to the instructions presented order in which the instructions were heat-of-passion manslaughter, we reviewed his confusing, point any specific he cannot plain claims error. Id. at upon issue which instructions were incom- at 1065. plete or inconsistent with the law in effect at the fact, Hogan acknowledges time. that the is- i.e., actually appealing, sue about which he is 28. Black also asserted that his should have jury regarding manslaughter failure to instruct his its consider- been instructed should be con- heat-of-passion manslaughter ation of charge. as an affir- sidered "in tandem” with the murder murder, ¶ 41, first-degree mative defense to was not Id. at 21 P.3d at 1064. specifically upon relied acknowledged in Black that “this which inclusion 10 We rulings inconsistent in its has been very jury instructions instruction —the of can commit heat a defendant whether jury given to Black’s were not erroneous.33 manslaughter if in- the defendant passion opinion jury The Black noted Black’s however, concluded, kill.”29 tended to We according to the uniform in- was instructed inconsis- not need to resolve this that we did relating heat-of-passion man- structions Black, used tency in because the instructions slaughter.34 jury Hogan’s Hence Black’s and any language did not contain in Black’s case jury according were both instructed “perpe- defining manslaughter as a homicide following uniform instruction: design to effect death.”30 trated without passion or emotion which must exist in Instead, jury was instructed that a Black’s any strong heat-of-passion manslaughter the defendant refers emo- conviction for 1) prove: fear, of a required tion, terror, the State to the death anger, rage such as or 3) 2) defendant; human; by caused passion This or emotion must resentment. 4) justifiable; or death was not excusable degree have existed to such a as would by dangerous inflicted means of death was ability naturally to reason and affect 5) weapon; performing and when the conduct incapable render the mind of cool reflec- death, in a defendant was which caused However, passion have tion. need not passion.31 Hence Black’s was heat of entirely been such as ivould overcome rea- required finding, make such a and not son, overpowering destroy or be so as to inconsistency regarding this element could exercise choice. ... free prejudiced Black.32 not have Nevertheless, opinion Black concluded ¶ Remarkably, emphasizing that after instructions, that, acting under these in the Black’s was not instructed that heat-of- passion” acting with “heat “deliberate manslaughter required a of in passion lack “mutually intent” are exclusive” and that kill, opinion goes on to tent the Black Davis and these mental states “cannot co-exist.”36 conclude that under McCormick — ¶5, 40, (citing P.3d at at P.3d at 1064 cases with 32. See 2001 OK CR 1064. 29. Id. issue). contrary holdings on this ¶ 47, id. at 20 P.3d at 1066-67. See language at Id. at 1064. This directly first-degree manslaugh- comes from the 20 P.3d at 1066. Id. O.S.2001, 711(2) (defining § ter statute. See 21 manslaughter heat-of-passion as a homicide (all added). emphasis It 35. See OUJI-CR2d 4-99 death, design "perpetrated without a to effect language exactly that this should be noted passion, but in a and in a heat of cruel language original same as the used in the version manner, instructions, by dangerous means of a juiy unusual of this State’s uniform criminal ...”). Nevertheless, weapon (Manslaughter uni- our current See in 1981. OUJI-CR2d Defined). defining Degree elements man- the First form instruction —Passion slaughter, unlike the instructions in Davis and McCormick, any language about does not contain by today’s majority opinion, quoted supra 36. As design lack of a to kill. See OUJI-CR2d 4-95 opinion the Black asserted as follows: (2000 Supp.). passion requires the defendant Because heat of strong to act on the force of a emotion follow- 5, ¶40, OK CR 21 P.3d at 1064 31. See 2001 ing provocation naturally adequate that would 4-96). (citing former OUJI-CR2d This instruc- ability affect the to reason and render the mind tion, elements, the same five has since been i.e., reflection, incapable not with a of cool incorporated 4-95. See OUJI- into OUJI-CR2d pre-formed, deliberate intent the Oklahoma Hogan’s jury (Supp.2000). in- CR2d 4-95 was passion malice and heat of show definitions of instruction, according structed to this uniform Although the instruc- cannot co-exist. Although same five elements. none of with these specifically do tions in the instant case first-degree discussed herein the cases involves states cannot co-exist as state these mental manslaughter perpetrated Davis, "in a cruel was employed definitions to define the manner,” "by than means of passion and unusual rather and heat of mental states of murder dangerous weapon," manslaughter sufficiently this crime is also covered informed the differing version of OUJI-CR2d 4-95 were mu- the current that the mens rea elements (which language tually such contains alternative exclusive. cases) analysis propose Id. at 21 P.3d at 1066-67. I herein. analysis, upon today’s acting passion” acting which ma- 12 This the “heat rejection jority Hogan’s rests its opinion mutually with “deliberate intent” are not ex- claim, Proposition I is indefensible. While it Although passion clusive.37 the heat of can plausible to conclude that the instruc- reason, person’s ability “affect” a it does in McCormick —where heat-of- tions used necessarily “overcome reason” or “de- passion manslaughter was defined as a homi- stroy free exercise choice.” Hence a “perpetrated design cide without a to effect properly can convict a defendant of heat-of- death” —made the mental states for heat-of- passion manslaughter, though even passion manslaughter first-degree mur- that the believes defendant had a deliberate exclusive,” “mutually der such a conclusion intent to kill.38 cannot be sustained this lack of a “de- when

sign to effect death” has been. eliminated 14 This conclusion fits with our common- defining from the instruction the elements of understanding sense people that even when heat-of-passion manslaughter, particularly by emotions, very strong are affected this above-quoted “pas- when the definition of necessarily they does not mean that lose given. sion” is complete ability control of their to control actions, they their nor does it mean that defining 13 Our uniform instruction what deliberately, cannot act such that “passion” heat-of-pas- kind of must exist for can manslaughter quite sion makes clear that and should be held accountable their ac- text). assert, (quoted supra 37. See OUJI-CR2d 4-99 As our uniform instructions first-degree four elements of murder in Okla- 1) human, 2) homa are: the death of a which today's majority opinion In footnote ac- unlawful, 3) defendant, 4) by was caused knowledges "[ajcting passion that in the heat of aforethought. caused with malice See OUJI- destroy need overcome the killer's reason or 4-61; O.S.2001, ("A § CR2d see also 21 701.7 today’s majority free exercise of choice.” Hence person degree commits opinion appears agree murder in the first when that a defendant can person unlawfully properly heat-of-passion that and with malice afore- be convicted of man- slaughter though thought even he had a deliberate intent causes death of another human be- majority opinion ing.”). aforethought” to kill his victim. Thus the We then define "malice as that, agree appears despite language also to away "a deliberate intention to take the life of a statute, manslaughter 4-62; of Oklahoma's being.” lack of human See OUJI-CR2d see also "design O.S.2001, ("Malice to effect death” is not an element of § 701.7 is that deliberate heat-of-passion manslaughter under current unlawfully away intention to take the life of a agreement Oklahoma law. This would seem to being, by human which is manifested external debate, presence our since it end of this capable proof.”). circumstances Our uniform very heat-of-passion manslaughter element instructions note this that "deliberate intent to justified that tire conclusions in Davis and take a human life must be formed before the that McComick the mental states for heat-of- act," although particular [homicidal] "[n]o passion manslaughter first-degree murder length required is time for formation of this "mutually were exclusive.” deliberate intent.” See OUJI-CR2d 4-62. And specifically our uniform instructions note that 13, however, today's majority In footnote at- may instantly "[t]he intent have been formed tempts way distinguish to find a new before commission of the act.” Id. Yet the idea crimes, required mental states for these two "instantly that deliberate intent can be formed discovering a new element in malice-afore- before the commission of the act” is inconsistent thought “requirement murder: a of delibera- suggestion with the essence, that cool-minded "delibera- attempts tion.” In footnote 13 to extend required. tion” is first-degree requirement murder of "deliber- requires Oklahoma law that the State establish requirement ate intent" into an additional that that the defendant had a "deliberate intent" to engage the defendant in an act of "deliberation” kill his or her victim. Oklahoma law does not about whether to kill or not. In addition to (and require required) deliberation,” never has that referring the defen- "requirement to a go through dant some kind of reflective decision- footnote 13 asserts that "[a] deliberate act is one i.e., "deliberation,” making process, requires before kill- capable a cool mind that fact, ing requirement the victim. such a might reflection.” While some believe that the go beyond would required prove seem to even the State should be traditional some amount (and concept "premeditation” of reflective that this State "deliberation” "cool mind” Court) person consciously require first-degree before a can this has be convicted of declined to murder, requirement defining such has when it comes to elements no basis in the of first- degree statutory simply require current law of this murder. We that the kill- either decisional; essence, proffers authority ing deliberately, meaning, and footnote be done no approach. purpose.” required. for its new "on Deliberation is not fact, manslaughter Heat-of-passion un- cess. is an tions.39 In this same commonsense appears appropriate to a to be affirmative defense malice- derstanding of human behavior aforethought charge in establishing heat-of-passion murder Oklahoma. the basis for crime, upon Hence a relies manslaughter recognizing while defendant who this de- as first-degree informing than fense is an instruction it is a lesser crime entitled to it, long rec- his as some evidence murder.40 It is also consistent our has ognition heat-of-passion manslaughter supports been admitted that defense.44 Furthermore, though can affirmative such a defendant is also serve as an enti- defense — first-degree informing tled to an complete not a defense —to mur- instruction defense, required disprove the State is der. in order for him to be convicted of first- opinion Although the Black concluded degree murder. in that case “con- instructions were ¶ 16 Most stitutionally adequate,”41 acknowledged it of the affirmative defenses rec- instructions,” (and ognized in specific regarding Oklahoma noted the ma- “more jury’s jority opinion) “complete of defenses” heat-of-passion consideration are defenses, manslaughter “exсulpating affirmative as an defense to defenses.” Such murder, established, first-degree properly totally could when be “desirable.”42 absolve liability. Today’s majority opinion recognizes likewise criminal defendant of These self-defense, setting insanity, defenses specific “more instructions forth include de- another, accident, involuntary passion manslaughter as fense of heat a defense intoxi- cation, offense, Although rather included if re- and than a lesser duress.45 defendant certainly quested, may heat-of-passion better suited desir- can raise be man- slaughter as to a able.”43 I maintain that such instructions an affirmative defense mal- desirable, they ice-aforethought necessary charge, are not are this murder defense “partial “incomplete under the mandate Due Pro- is an defense” or constitutional de- agree jurisprudence opinion specifically 39. Hence this Court's Court’s refers I McHam design Morgan relationship that lack effect death of a is not an discussion of the between heat-of-passion manslaughter heat-of-passion manslaughter element self-defense and herein) (quoted insightful with the decision the drafters of our uniform as "an on discussion instructions not to include such lack of intent this issue.” Id. heat-of-passion manslaughter an as element despite statutory language ... O.S. of 21 OKCR5, ¶48, 41. 2001 P.3d at 1067. 2001, 711(2). § Id. at 48 P.3d at 1067 n. 17. n. State, 89, ¶4, Morgan 1975 OK CR emphasized P.2d this Court that heat- Majority Opinion, p. (agreeing 43. See 925 n. 14 of-passion manslaughter occupies midway po- "a issue). with Black on this sition self-defense and between murder.” Court noted that with self-defense "the blow is excused, analysis offering 44. The and instruction I am necessary to save the because life of apply only actually would who defendant it, grievous striking prevent bodily person harm; or to manslaughter upon heat-of-passion relies as his manslaughter there such while in is no defense, i.e., to a defendant who does not contest excused, necessity, only partially and the blow is victim, who the fact that he killed the but main- 5,¶ given passion." because the heat of Id. at first-degree killing tains that the constituted man- Miller, Law, (quoting 536 P.2d at 954 Criminal slaughter. a defendant could While such also 92). recently § As we noted in McHam v. logically killing that the was in self-defense assert OK CR 14 n. n. - (if support there was some evidence this 3, Morgan subsequently overruled in Walton claim), acknowledge who does not defendant ¶¶ 7-9 744 responsibility killing be would not entitled however, recognized, 978-79. As McHam Wal- though to an instruction on this he or defense— "only Morgan [Morgan] ton insofar overruled on she could be to an instruction man- entitled interpreted every prose- had to hold that in been slaughter as a offense. lesser murder, first-degree, premeditated cution for if raised, self-defense has been the trial court's fail- heat-of-passion manslaughter context to a ure to 45. "Duress” is limited in this reason- instruct McHam, per danger se able belief one is in "imminent is reversible error." 2005 OK (all great bodily from another.” CR 126 P.3d at 668 n. 3 death or harm See 14 n. McHam) Walton). emphasis (citing OUJI-CR2d 8-20. This slaughter, you Although such a defense diminish- should then consider wheth- fense.”46 criminal defendant’s er committed es the extent the crime of first- he/she liability, absolve the defendant of murder, it does not degree as defined these instruc- Rather, liability. partial de- criminal tions.48 suggests that defendant should be fense my stop making It is belief that we should separate, lesser crime. convicted of a give excuses for the failure to such an in- Therefore, an Oklahoma should struction, stop contorting English lan- defense, required to consider this when it be guage require to rationalize our failure to raised, finding ap- properly but a that it one, requiring an start that such instruc- in a conviction on the plies would result given. tion be first-degree manslaughter offense of lesser 18 I would conclude that should simply acquittal. suggest than I rather claim, prevail Proposition by finding on his I charged that when a defendant with malice- plain that the trial court committed error and heat-of-passion aforethought murder asserts violated Due in Process when it failed to manslaughter as a defense and some evi- Hogan’s jury regarding struct his affirmative support at trial in presented dence is disprove defense and the State’s burden to it. defense, re- should instructed Supreme This conclusion follows from the availability of this garding the defense Mullaney Court’s decision and our Court’s disprove it. Such an State’s burden McCormick, decision as well as our well- (or instructions) could state as instruction approach established to the treatment of af follows: firmative defenses. This conclusion is also introduced that kill- Evidence has been consistent with the Tenth Circuit Court’s de ing first-degree in this case constitutes cisions and Davis.49 Lofton manslaughter, (heat-of-passion) as a de- recognize irony 19 I granting of Ho- charge first-degree of mur- fense to the gan a further on a claim retrial that seems der.47 step one removed from the error that you You are instructed that must first retrial, particularly led to his first when Ho- consider whether the defendant committed gan object did not to the court’s instructions first-degree manslaughter, as the crime propose or an instruction of the sort he now you in these instructions. If unan- defined Nevertheless, required. maintains was imously agree presented that the evidence lesson of Black is that when this Court establishes, doubt, beyond a reasonable conviction, uphold despite strains to a trial that the defendant committed the crime of inadequate court’s instructions to the defen- you first-degree manslaughter, should con- jury, inadequate dant’s the same instructions first-degree manslaughter. him vict given will continue to be in other cases. And You further instructed that in order to are again this will be faced with the same first-degree mur- convict the defendant case, appeal. issue in another hard in another der, beyond prove, the State must a rea- doubt, Y, Proposition Hogan challenges 20 In did sonable not commit he/she first-degree manslaughter. you If unani- the trial court’s refusal to instruct his mously agree regarding “exculpatory that the defendant did not statement doc- first-degree sought by commit the crime of man- trine.” The uniform instruction supported 46. heat-of-passion Such a defense could also be described as an dence defense "imperfect "mitigating purposes. defense” or defense.” could be inserted for clarification 89, 5,¶ Morgan, See 536 P.2d at (contrasting "perfect defense” of self-de- given, cases where this instruction was "imperfect voluntary fense with defense” of would not be instructed under the lesser (Committee manslaughter); instructions, OUJI-CR2d 8-36 namely, included offense OUJI- Comments) (contrasting "exculpating defense” CR2d 10-23 and 10-24. insanity "mitigating with defense” of volun- tary intoxication). Although the decisions of the Tenth Circuit Appeals binding upon Court of Court, are not this victims, involving multiple they In a case are the name instructive and well-reasoned on (or victims) of the victim about which some evi- this issue. jury: yet I am with exculpatory, not comfortable have instructed his Hogan would majority opinion’s analysis. in connection the State introduces “Where a defendant or admission of with a confession disagree majority opin- 22 I also with the which, true, if exculpatory statement an Proposition VI Hogan’s ion’s resolution acquittal, to an would entitle my he/she privilege judgment him/her claim. In marital exculpatory unless acquitted policy must such protecting be bases for theoretical harmony, disproved family shown to be spousal has been or statement communications— confidence, affection, loyalty within the evidence the case.”50 false other relationship today marital as valid follows: rejects claim as majority opinion this —are years ago. ought not were 300 We not abuse its discretion “The trial court did spouse testify against permit one to force give instruction refusing regarding a communi- the other “confidential Hogan’s exculpatory statements because them, cur- and Oklahoma’s cation” between police disproved to the was statement protect such rent Evidence Code continues in the case.”51 other evidence communications.54 agree Although willing I would ¶23 Hogan story Here contrived finding Hogan’s state- specific with to lie by repeating his wife it. The asked truly “exculpato- police ment was not majority opinion’s analysis the con- conflates uniform ry,” term is defined in our as that story request with the to lie and con- trived instruction,521 agree cannot Court’s waived, privilege cludes that the was because implicit finding disregard that we can (false) story was to be and intended was evidentiary significance of the defendant’s Of course it is true disclosed. “dis- where “other evidence” own words keep that his did not intend wife contents granted proved” he said. “confidential,” what story concocted since he regarding from the 10th story habeas relief Circuit to tell in order asked his wife essence, because, provide original conviction him with alibi. That was the point. But the communi- properly consider whole “confidential Court declined Hogan’s at issue is admission to his cation” Hogan’s statements were sufficient whether story asking her wife that he was to heat-of-pas- to a instruction on warrant that Ho- untrue. I would hold recount was manslaughter.53 not make a sion We should prevent gan have been allowed to his should in this parallel or misstatement mistake testifying Hogan that acknowl- wife from actually Hogan’s was round. If statement story a lie edged to her that the alibi was would entitled to exculpatory, he have been police. to to asked her tell this lie that he instruction, exculpatory re- statement ¶24 VIII, argues in gardless Proposition Hogan of the “other evidence the case.” In original jury rejected Hogan’s I that was that his do not believe statement because Hogan ry presented sufficient evi 50. 9-15. as to whether See OUJI-CR2d manslaughter first-degree a dence to warrant (emphasis original)). I dissented instruction.” in (citation p. Majority Opinion, 51. omit- See original Hogan on Court’s decision this from this ted). (Chapel, Hogan, 877 at basis. See 1166-67 J., (“It may dissenting) be that the would (defining "exculpatory 9-15 See OUJI-CR2d Degree Hogan guilty to of First have found by "a statement defendant that statement” as provided even if with a had been Murder alleged guilt, ... tends to clear a defendant from which, However, manslaughter that is not instruction. true, acquit- would entitle to an if him/her there is some the test. The test whether evi tal”). reasonably suggesting the lesser-in dence Ho are warranted. cluded offense instructions Gibson, v. See 197 F.3d clearly provides gan’s some evidence confession (10th Cir.1999) ("[T]he Oklahoma Court of Crim (emphasis original)). manslaughter.” engaged wrong inquiry— Appeals inal in the O.S.2001, 2504(B) ("An rehearing § asking Hogan’s accused a self-de 54.See 12 whether prevent proceeding privilege to included criminal has a fense instruction constituted instruction, lesser initially spouse testifying as to confidential whether the evidence his greater support the accused on the communication between sufficient to conviction engaging inqui spouse.”). charger, but never in the correct aggravating standing Jeopardy by circum- “continuing represented threat” Double stance, fact, Jeopardy to allow it violated Double Poland. In this Court maintained a re-pursue aggravator to this in the approach the State capital-stage broader Double stage of the retrial this case. Ho- second Jeopardy approach directly contrary an—and effectively “acquit- he was gan argues that years to Poland —for nine and one-half after continuing aggravator; threat ted” of Supreme Court’s 1986 decision Po- hence the State should not have been allowed In land. our 1992 decision in v. Crawford try aggravator. again him on this same I State,57 opinion by Judge Lumpkin, an Hogan is correct. Recent au- conclude that aggravating Court held that where the sole Supreme thority from the United States by sup- circumstance found was not strongly suggests that it does violate by evidence, ported sufficient we were re- Jeopardy to allow the State to re- Double quired resentencing, to remand the case for pursue aggravating circumstance that was only punishments where the that could be rejected by prior capital jury in the same parole.58 considered were life and life without Furthermore, case. understand- broader ¶ 27 This Court concluded in Crawford: ing Jeopardy in the context of a of Double Having found that the evidence does not capital sentencing ap- is cоnsistent with the support aggravating the sole circumstance proach by up taken this Court until until by jury, found we have no alternative but to REMAND THE A CASE FOR majority’s analysis upon 25 The is based TRIAL NEW ON SENTENCING.... Arizona,55 Poland, Poland the Su- resentencing Since the remand for is due preme Court it did not ruled violate insufficiency support of the evidence to Jeopardy go Double to allow the State to circumstance, aggravating the sentenc- try again get penalty back and a death ing options resentencing are limited to verdict, though it even was determined on imprisonment for pa- life or life without appeal only aggravating circum- role.59 by original stance found factfinder was We did not consider or discuss whether other supported long sufficient evidence —as aggravating ap- circumstances could have in the supported as other evidence record plied to the murder in separate Hence we aggravator.56 acknowledge I Crawford. approach did not take the analysis majority outlined opinion in Po- Supreme contrary Court in Hogan’s appeal. land is claim on Poland. prevail upon can Proposi- Hence ¶ 28 This Court ap- continued to take the agrees claim if tion VIII this Court proach up through our 1995 Crawford longer

we should no followPoland. Perry Cheney decisions v. State60 and begin by noting I Perry, finding 26 that this Court did State.61 In after that the evi- immediately adopt the narrow support under- dence was insufficient to either of 147, 1749, overturned). 55. 476 U.S. 106 S.Ct 90 L.Ed.2d 123 death sentence has been See 1992 62, ¶ (1986). 71, OK CR 840 P.2d at 641. Section exactly today. 701.13 remains the same See 21 O.S.2001, ‍‌‌‌​​‌‌​‌‌‌​‌‌​​‌​‌​‌‌‌‌​​‌​​​​​‌​​​‌​​​‌​‌‌​​​​‍§ 701.13. Section 701.10a was amend 156-57, (where 56. Id. at 106 S.Ct. at 1756 record 1993, clearly ed in to establish a defendant's supported aggravating evidence non-found cir- right jury sentencing any resentencing, as cumstance(s), "acquit- had not been defendant long original sentencing by jury. as the was penalty, ted” Jeopardy pur- of death for Double O.S.2001, 701.101a(1). § prior See 21 Under the poses, re-pursue penalty). and State could death provision, right the defendant had no to a sentencing penalty if the death at was not issue 57. 1992 OK CR 840 P.2d 627. resentencing. O.S.Supp.1989, See 21 701.10a(1)(a). § Hence there has been no at ¶71, 58. Id. 840 P.2d at 641. change statutory explain in our law that can subsequent reject ap Court’s decision to proach 59. Id. at 840 P.2d at 643. The Crawford. Crawford upon § O.S.Supp.1985, Court relied 21 701.13 (governing 60. 1995 OK this Court’s of death CR 893 P.2d 521. review sen- tences), O.S.Supp.1989, (gov- § and 21 701.10a erning sentencing proceedings on remand after 61. OK CR 74. penalty; and the by “acquitted” of the death found circumstances aggravating the two again pursue it was re- allowed to it held would not be jury,62 this Court State sentence to modify the defendant’s In resentencing.66 this consistent line quired in a any parole, without consider, imprisonment cases, without life did not even published we allowing the or consideration Poland, discussion Supreme did whether penalty.63 death We re-pursue the State in the record that there was other evidence will not concluded, the evidence “Because separate support used to could have been aggravating circum- charged support the two by presented If aggravator. the evidence stances, Perry’s sentence of find that we ag- inadequate was to sustain the State life and modified to must be vacated death previous capital found in the sen- gravator(s) parole.”64 possibility of Similar- without another tencing, we did not allow the State finding that the sole ly, Cheney, after penalty.67 at the death chance by found aggravating circumstance ¶30 by supported dramatically adequately changed approach in that case was not This evidence, that we again we concluded 1996 decision Salazar with this Court’s modify sen- the defendant’s required Salazar, were found that the sole we State.68 parole.65 to life without tence by aggravating circumstance found (on supported by resentencing) was not suffi ¶ Consequently, over nine and one-half time, however, cit This we cient evidence.69 Supreme Court’s decision years after the Supreme quoted extensively from the ed and Poland, taking posi- was still this Court adopted then Poland decision.70 We Court’s in the record was that if the evidence tion applied approach as our own and the Poland cir- support aggravating insufficient followed this cumstance(s) the case on review.71 We particu- it to jury in a found State,72 effectively approach in Frederick ease, same had been lar the defendant 54-62, aggrava- ¶¶ regarding presenting evidence 893 P.2d at 533- 62. OK CR original jury, origi- rejected by his where tor capital was reversed for failure to nal conviction P.2d at 536-37. Id. at rejected co-defendant. This Court sever from his "moot,” claim as since the second Romano’s P.2d at 533. Id. at first, "rejected aggravating jury, cir- like the " 'continuing threat.’ Id. at cumstance of 72, ¶26, ("[W]e at 83 CR 65. 1995 OK Nevertheless, we did cite Po- P.2d at 118. support simply does not find the evidence approvingly our discussion of Roma- land within Cheney finding jury's the murder of Mrs. ¶ 67, 909 P.2d at 118. claim. See id. no’s heinous, especially atro- committed in an Cheney’s Accordingly, cruel manner. cious or impris- wrote: must be modified to life 71. This Court sentence of death parole."). possibility without the onment interpret Poland to hold that if either We that, reviewing finds after court or a court 5, 1986; May Cheney was decided on 66. Poland factors, any the residual removal of infirm 8, 1995. was decided on December sentencing at the offered the state evidence sentence, hand, consistently support we have al- proceeding 67. On the other will not death penalty upon death acquitted the State to seek the lowed resentencing has been then the defendant reversed a death sentence is jeopardy precludes when fur- penalty death involving capital-stage insufficient errors not sentencing proceedings seeking a death ther However, evidence. evidence which if there is verdict. statutory aggravating circum- supports other OKCR25, 919 P.2d 1120. 68. 1996 stances, may and a he remanded the case sought.... may be death verdict 12, ¶ (reversing "great at 919 P.2d at 1125 69. Id. 1120, ¶25, 18, Salazar, P.2d OK CR 919 1996 person” aggrava- more than one risk of death to evidence in the We concluded that 1127. then tor). aggravating supported two circumstances record resentencing jury had declined that Salazar's 14-18, ¶¶ P.2d at 1125-27. It at 919 Id. the case for a further Hеnce we remanded find. prior deci- to the be noted that should sion, Salazar penalty resentencing, could which the death in days Cheney, eleven after in a case decided 19, pursued. P.2d at 1127. Id. at 919 approvingly. In Romano v. cite Poland we did 74, 66-68, 92, ¶¶ 909 P.2d 1995 OK CR 908, 108-10, ¶¶ 34, 938 117-18, 72. 2001 OK CR rejected defendant’s claim that we Salazar). following (citing both Poland and collaterally estopped and have been State should 948 “[bjecause ticular, Ring to follow Poland since held that Arizona’s

we have continued 1996.73 aggravating operate enumerated factors as equivalent ‘the functional of an element of a maintain, however, I that the United 31 offense,’ greater ... the Sixth Amendment Court, through Supreme the still-un States Revolution, requires jury.”78 be found folding Apprendi/Ring has re jected for its decision in the doctrinal basis Ring Supreme in 33 Thus Court in- Poland. The Poland decision was inconsis augurated approach its current to under- Supreme preceding Court’s and tent with standing aggravating circumstances as the Bullington decision in v. Miss landmark equivalent” “functional of “elements of a ouri,74 in in which the Court noted that offense,” greater where the lesser offense is context, sentencing capital State was simply first-degree murder or “murder sim- opportunity entitled to “one fair to offer pliciter,” penalty for which proof whatever it could assemble.”75 And the death is not importantly, it more is inconsistent with the punishment, greater an authorized and the understanding Supreme Court’s current plus aggrava- offense is “murder one or more jury’s sentencing generally role circumstances,” ting pen- for which the death sentencing, capital particular. alty punishment.79 is an authorized While Arizona,76 Ring might this shift seem 32 In v. which evolved mere semantics to sentencing some, fact, from the revolution change broader be- is fundamental and gun Jersey,77 Apprendi v. New the Su- quite significant. preme recognized that Court because the brings 34 This us to Sattazahn v. Penns capital sentencing process analogous is to the ylvania,80 holding The narrow in Satta trial, guilt many stage of of the constitutional particularly zahn striking is not 5-4 ma

protections applicable to the determination of —a jority holds that capital-stage where a guilt applied equally a defendant’s must be during becomes capital “deadlocked” its delibera the determination of whether a defen- tions, par- “acquittal” dant should be sentenced to death. In this on the death 70, 7,¶ added). (emphasis Bullington See 973 1860 Hence the Salazar 315, (noting despite Crawford, "Having op Per- Court concluded: received 'one fair ry, Cheney, analysis appli- portunity proof Court’s "[t]he to offer whatever it could assem ble,’ represents cation of Poland in ... ... the State is not entitled to Salazar another.” Id. 446, issue”). U.S., position Court's current on this (quoting at at S.Ct. Burks v. 16, 1, 437 U.S. 98 S.Ct. 57 L.Ed.2d 1 430, 1852, (1978)). 203, Rumsey, 74. 451 U.S. 101 S.Ct. 68 L.Ed.2d 270 In 467 U.S. Arizona 209-12, 2305, 2309-11, (1981). 104 S.Ct. 81 L.Ed.2d 164 (1984), Supreme Bullington Court followed 446, (citation "acquittal and held that even where an 75. Id. at S.Ct. at 1862 omit- ted). penalty” upon Bullington, Supreme death is based a trial court’s mis held that statute, Jeopardy Jeopardy construction of a protected Double Double for defendant who had pursuit penalty bids "acquitted” penalty by jury upon further thе death been of the death having again upon remand of the case. to face retrial: "Be- it sentencing proceeding petitioner's cause the at question first trial was like the trial on the 76. 536 U.S. S.Ct. 153 L.Ed.2d innocence, guilt protection afforded (2002). Jeopardy acquitted by Double Clause to one him, respect is also available to 77. 530 U.S. 120 S.Ct. 147 L.Ed.2d penalty, death at his retrial." Id. The Court cited (2000). Pearce, North Carolina v. 395 U.S. 89 S.Ct. (1969), articulating 23 L.Ed.2d 656 Ring, 536 U.S. at 122 S.Ct. at 2443 having wiped idea of "the slate clean" aon (quoting citing Apprendi). retrial, subject such that a would be defendant any legally punishment upon authorized retrial. 7-2, Ring justices 79. The decision in with six 441-42, (quot- 451 U.S. at ing 101 S.Ct. at 1859-60 joining majority opinion Breyer and Justice Pearce, 2078). 89 S.Ct. at U.S. concurring judgment. Only in the Justices however, Bullington emphasized, Court Rehnquist O’Connor and dissented. recognized "the ‘clean slate' in Pearce rationale inapplicable jury agrees whenever a or an appellate prosecution court decides that the has 80. 537 U.S. 123 S.Ct. L.Ed.2d 588 (2003). proved not its case.” Id. at 101 S.Ct. at capital murder.”88 Hence the ‘offence’ of re-pursue can Hence State penalty.81 “continually tripped resentencing or retrial earlier era in a this penalty the death applies Jeopardy case.82 Thus Sattazahn Double in the same the text of the over “hung juries” capital-stage rule to the same Clause.”89 consistently applied to has the Court however, emphasizes III 37 Section guilt stage.83 juries in the hung namely, Apprendi developments,” “recent ¶35 at the various Satta- “A closer look part of our Ring, “have illuminated this and however, at least reveals that opinions, zahn III summarizes jurisprudence.”90 Section Supreme Court of the current six members expanded and their landmark decisions these the doctrinal ba fundamentally disagree with jury-trial of the Sixth Amendment’s view strongly suggests and sis for Poland guarantee.91 It continues: if Poland justices would overturn these six principled no reason can think of We Justice the same issue.”84 presented with context, between what distinguish, majority opinion in Sattaz wrote Scalia purposes for of the constitutes an offense ahn,85 majority opinion ac The Sattazahn jury-trial guarantee Amendment’s Sixth Poland, summa knowledges the decision pur- an “offence” for and what constitutes it, “distinguished and notes that Poland rizes Double poses of the Fifth Amendment’s Rumsey.”86 Yet a careful Bullington and post-Ring ... In the Jeopardy Clause (plurality) opin III of review of Part Scalia’s can, world, Jeopardy the Double Clause dissent, ion, Ginsburg’s reveals along with must, capital-sentencing apply to some and justices majority of the a substantial of the proceedings consistent with the text longer view Double the Court no now on Fifth Amendment.92 capital in the sentenc Jeopardy protections upon manner which ing context in the narrow clearly that a III concludes And Section Poland relied. aggravating circumstances jury’s findings on offenses, separate are like minitrials ¶36 by noting that begins III Section the less- guilt-stage verdict is for where the “[wjhen Rumsey, Poland Bullington, simpliciter” “murder er offense of decided, proceedings capital-sentencing were greater stage involves a trial on the second just sentencing that: were understood to be aggra- plus “murder one or more offense of “sentencing pro- proceedings.”87 And such III vating Thus Section circumstances.”93 as different from ceedings” were understood asserts, jury unanimously concludes “If a purposes of the respect trials “in a crucial to meet its burden a has failed only that State They dealt Jeopardy Clause: Double ag- one or more proving the existence of imposed for the to be with the sentence (emphasis at 739 U.S. at 123 S.Ct. 87. 537 at 123 S.Ct. at 738. 81. Id. original). at 742. 82. Id. at 123 S.Ct. (emphasis original) 88. Id. stage hung jury guilt 83. in either Hence sentencing stage generally results in 110-11, the State. a "do over” for 123 S.Ct. at 739. 89. Id. at counting O'Connor and Justices I am at 739. Id. at 123 S.Ct. making Rehnquist tally; am I in this nor justices prediction about how the Court’s newest Ring, held that in the Court 91. Section III notes will vote. jury, requires that a Amendment “that the Sixth toto, by joined, opinion was m Jus- 85. Scalia's any aggra judge, the existence of and not a find Rehnquist and Thomas. Justices O’Connor tices found, circumstances, vating and that opin- Kennedy joined all but Part III of evidence, but preponderance a mere dissenting opin- Ginsburg wrote ion. Justice ion, Ring). (citing beyond a doubt." Id. reasonable Souter, Stevens, Brey- joined by Justices er. 111-12, at 739-40. 123 S.Ct. 92. Id. 108-09, It 123 S.Ct. at 738. 86. 537 U.S. at Sattazahn, Poland, noted that unlike should be at 740. Id. at 123 S.Ct. hung jury. did not involve circumstances, double-jeopardy gravating ‘acquittal’ circumstance “constitutes an ‘acquittal’ to that on the protections attach that jeopardy pur- circumstance for double plus aggravating circum- offense of ‘murder poses.” emphasized The Poland Court ”94 stance(s).’ prepared that it capital was not “view sentencing hearing ¶ as a set of minitrials on The would Sattazahn dissenters have aggravating the existence of each circum- further, gone they even since maintain stance,” aggravating since circumstances entry statutorily-mandated even the of a life separate penalties “are not sentence, verdict, or offenses.”98 when a cannot reach a prevent pursuing should State ¶40 early Bullington Yet as as and as penalty in a retrial.95 It death must be Sattazahn, recently Ring as the Su- however, noted, the four dissenters preme clearly Court has a announced that agreed opinion with Section III of Scalia’s capital sentencing merely is not a “sentenc- that, world, post-Ring in a when Rather, ing proceeding.” many critical “acquits” aggravating a defendant on an cir- respects, capital constitutional a sentencing cumstance, aggravating circumstance is, fact, separate a “minitrial” or factual pursued cannot retrial or resen- regarding determination aggravating cir- tencing in the same case. Sattazahn cumstance(s) alleged partic- State. dissenters note: “This Court has determined ular, capital sentencing is a minitrial on the purposes ... Jeopardy that for of the Double offense of murder-plus-one-or-more-aggrava- Clause, capital sentencing proceedings in- ting-circumstanees, protections to which the volving proof aggravating of one or more Jeopardy just apply, Double as indo separate are to be treated factors as trials of jury’s the context first-stage verdict.99 offenses, sentencing proceed- not mere ings.” ¶ my 41 It is Supreme belief Court ¶39 Therefore, will overrule Poland when the issue of its a careful review of the enduring legitimacy is opinions properly various before the Sattazahn reveals that a my strong majority Court. It is also Court’s current mem- belief that when a rejected capital right precious constitutional protec- bers have view of sen- as the tencing upon against issue, which tion Jeopardy Poland is based. As Double is at today’s majority emphasizes, very line, Poland dis- when man’s life is on the we need capital-sentencing missed the claim that a not and should not wait until proper test jury’s particular aggravating failure to find a way case Supreme winds its cumstance, argued term, 94.Id. It could be that Oklahoma’s cur- at least in the short is to treat it rent, capital-stage verdict forms—which instruct rejection aggravator, as a unanimous of that juries simply any aggravating check circum- operates "acquittal” aggra- which as an on that stance(s) upon jurors unanimously which the entirely possible vator. Where it is that the agree not allow us to determine whether a —do unanimously rejected aggravator, the unchecked jury’s particular aggravator failure to find a Jeopardy I maintain that it violates Double rejection aggravator a unanimous of that or not. re-pursue aggravator allow the State to in a consistently Yet this Court has described verdicts subsequent resentencing. retrial or aggravator "rejec- where an is unchecked aas See, aggravator(s). e.g., tion” of the unchecked 118, J., (Ginsburg, 95. Id. at 123 S.Ct. at 743 State, 8, ¶ Davis v. 2004 OK CR 47 n. dissenting). 8; State, P.3d ¶ 83 n. Dodd v. 2004 OK CR 91, 102, 1017, 1044, 1047; 100 P.3d Lott v. State, 27, 132, 176, 2004 OK CR 98 P.3d (emphasis Id. at 126 n. 123 S.Ct. at 747 n. 6 351, 359; State, ¶25, Johnson v. 2004 OK CR ). original) (citing Ring Bullington 7; State, n. 95 P.3d 1101 n. Harris v. 1, 60, 731, 753; 2004 OK CR 84 P.3d Alverson Poland, 476 U.S. at 106 S.Ct. at 1755. CR21, ¶30, 498, 511; 1999 OK 983 P.2d Patton v. 155-56, Id. at 106 S.Ct. at 1755. 270, 299. And in no case has this Court inter- preted jury’s aggravator failure to find an as a capital guilt-stage 99. And a “hung jury,” defendant's murder specific since without notice from a "deadlocked,” conviction constitutes “lesser included that it is offense” we have ‍‌‌‌​​‌‌​‌‌‌​‌‌​​‌​‌​‌‌‌‌​​‌​​​​​‌​​​‌​​​‌​‌‌​​​​‍no basis for capital-stage assuming in relation to that such is the case. I conclude that determination re- garding way "greater murder-plus- the most reasonable to deal with Okla- offense” of jury’s aggravating homa one-or-more-aggravators. failure to check an cir- area; City handwriting on homa and Moore that shot out The constitutional he docket. windows from read it and announce at business which he had the wall. We should fired; family longer will follow Poland. been that threatened the that this Court no he adopt partner; when it first a former business that he once did not Poland was We decided, reject eleven-year-old girl. molested neighbor and we remain free to Poland an majority any not opinion does now. address significance. this evidence or its none of Yet ¶ minimum, 42 At a this Court should not this could have put evidence been before analy- questionable to reaffirm the reach out Hogan’s jury prevent- if the State had been in a not that does neces- sis of Poland case ed, protection under the constitutional sarily require us so. Brown v. to do against Jeopardy, re-pursuing Double from Sanders,100 recently the an- Supreme Court aggravator. the continuing threat penalty that when a case in- nounced death ¶ juries I jury’s recognize of an invalid that both volves a consideration that were circumstance, rejected appel- presented the focus of evidence aggravating this the continu- ing reviewing the threat After aggravator. late review should be on whether invalid the “sentencing give regarding factor” the actual allowed to evidence each of these inci- dents, weight” certainly that “aggravating though flattering to evidence would not to Ho- juries it.101 gan, why otherwise before Be- I the to have been understand declined Hogan’s jury declined find find this I aggravator. Consequently, cause retrial to could “continuing aggravating by circum- be comfortable with conclusion this the threat” stance, law, though Court that the under the should even State should Oklahoma (or pursue continuing have been to aggravator allowed the not have considered this it) circumstance, threat aggravating this consti- presented support within its evidence to tutional out to un- error turned be harmless to determination about whether sentence Ho- the specific der circumstances of this case. argued gan to it could be death. Hence Hogan’s current claim is moot. Today’s decision could have resolved Hogan’s by deciding Proposition VIII claim Sanders, however, light it 43 In should Jeopardy Double violation was ren- acknowledged by alleging con- jury’s rejec- resentencing dered moot retrial, tinuing aggravator Hogan’s in threat continuing aggravator tion of the threat objection, over defense the State was allowed by concluding that the admission of and/or present during the evidence retrial’s sen- support of this aggravator evidence in phase that tencing would not otherwise have beyond harmless I reasonable doubt. the State’s evidence been admissible —since prefer today’s would decision had taken limited would otherwise have been to evi- relying an approach, such rather than “heinous, atrocious, supporting dence constitutionally unstable foundation of Po- aggravating cruel” circumstance. Thus land. aggravating evidence should have State’s limited to been evidence about circum- herein, I For the reasons articulated Stanley’s murder. stances today’s dissent decision. pur- allowed Because the State was LUMPKIN, in V.P.J.: Concur Results: continuing aggravator, sue the threat howev- er, present it was allowed 1 In of the evidence concur in affirmance judgment in burglaries had committed and sentence this case. I write Okla- - -, change appellate governing U.S. 126 S.Ct. 163 L.Ed.2d the different rules (2006). States,” Oklahoma, "weighing such as in which whether is limited in its decision about (“An sentencing 101. Id. invalidated factor impose aggra- penalty specific death ... will render the sentence unconstitutional factors”) (or vating "eligibility circumstances adding improper reason of its element to the part jury’s eligibility found as tion, determina- aggravation weighing process scale unless states, jury’s non-weighing which sentencing one the other factors enables the impose about ultimate determination whether to give aggravating weight sentencer to to the same way. penalty is not Id. death limited in (emphasis original) facts circumstances.” at 889-91. omitted)). (footnote sought The Sanders case my sepa authority. disagree. that as stated in separately to note We The decision ren- disposed writing to Hanes v. dered this case of the issues rate (Okl.Cr.1998) relying upon appropriate authority raised previously this Court has deny rehearing and we on this basis. questions mixed of law and fact reviewed standard, of upon an abuse discretion based ¶4 Appellant questions also claims findings the trial court’s asking whether duly decisive of the case that were submitted record, by the supported fact and not are by opinion were overlooked Court. However, upon based stare de novo review. Appellant’s does not address claim that trial agree the Court’s resolution of decisis I with failing counsel was ineffective for to chal of ineffective assistance of counsel. the claim lenge submitting instructions first XIII, Additionally, Proposition Ap- degree manslaughter as a lesser included listing pellant’s mere of issues for this Court prosecutor’s allegedly improp offense or the appellate to invoke to consider is insufficient er statements to the on intent to kill. Appellant appel- review. I find has issues, however, waived Neither these is decisive provided any argu- late review as he has not requires relief. why authority as to this ment or instructions, 5 We held the prior rulings should reconsider it on six dif- whole, fairly accurately when read as a 3.5C, ferent issues. See Rule Rules State, applicable stated the law. v. Appeals, Criminal Title Oklahoma Court of ¶44. 19, thus, Hogan, 2006 OK CR cannot (2001). 22, Ch.18, App. See also Romano v. prejudiced by show that he was counsel’s

State, 74, 65, 1995 OK CR 909 P.2d 117. object failure to to the court’s instructions prevail. and he cannot v. Strickland Wash ORDER GRANTING REHEARING ington, 466 U.S. 104 S.Ct. RECALL BUT DENYING OF (1984); State, 80 L.Ed.2d 674 v. Davis THE MANDATE ¶21, 7, 2005 OK CR 246. Nor ¶ Appellant Rehearing a Petition for filed prosecutor’s do argument we find that the and Motion to Recall the Mandate in the concerning intent to kill it can and how above-styled appeal on June 2006. He erroneously formed instructed the requests of this reconsideration Court’s deci- Wackerly issue of intent to kill. affirming first-degree sion his conviction for ¶¶ 29-30, 2000 OK CR murder and sentence of death. See Rehearing 6 The Petition for is GRANT- 19,139 (May P.3d 907 is, ED. The Motion to Recall the Mandate 2006). however, DENIED. ¶2 Rehearing “Petition for shall not be ¶ 7 IT IS SO ORDERED. course, filed as a matter of but two ¶ 8 WITNESS OUR AND THE HANDS reasons: day SEAL OF THIS COURT 28th question decisive of the Some case June, 2006. duly attorney submitted of rec- Chapel, Charles S. Dissents Court, /s/ ord has been overlooked CHAPEL, Presiding Judge CHARLES S. or Gary Lumpkin L. is in conflict The decision ex- /s/ LUMPKIN, Presiding Judge GARY L. Vice press controlling statute decision to which attention of this Court was Charles A. Johnson /s/ in the called either brief or oral JOHNSON, A. Judge CHARLES argument.” Arlene Johnson /s/ 3.14, Rule Rules the Oklahoma Court JOHNSON, Judge ARLENE 22, Ch.18, Appeals, App. Criminal Title David Lewis /s/ (2006). LEWIS, Judge DAVID seeMng rehearing, Appellant In3 claims incorrectly that this Court decided the claims I, II, Propositions

raised in III and VIII and

the decision is in controlling conflict with

Case Details

Case Name: Hogan v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: May 15, 2006

Citation: 139 P.3d 907

Docket Number: D-2003-610

Court Abbreviation: Okla. Crim. App.