Lead Opinion
OPINION
¶ 1 Kеnneth Eugene Hogan, Appellant, was tried by jury in the District Court of Oklahoma County, Case No. CRF-88-646, and convicted of First Degree Murder. The jury fixed Hogan’s punishment at death and the trial court sentenced Hogan accordingly. Hogan appealed his Judgment and Sentence to this Court and we affirmed. Hogan v. State,
¶ 2 Hogan thereafter sought federal habe-as corpus review in the United States District Court for the Western District of Oklahoma. The district court denied relief and Hogan appealed. The Tenth Circuit reversed and remanded the matter for a new trial, finding that Hogan’s due process rights were violated by the trial court’s refusal to instruct the jury on first degree manslaughter. Hogan v. Gibson,
I. FACTS
¶ 3 Kenneth Hogan and Lisa Stanley had known each other well for several years before Hogan killed her on January 28, 1988 during an afternoon visit to her apartment. She had taken care of his children; he had helped her with schoolwork. Even after her marriage to George Stanley he visited her often in her apartment. There was speculation at trial that their relationship was a romantic one, but no evidence of intimacy. Hogan said he had thought of her as a sister.
¶ 4 George Stanley testified that the morning of January 28 had been an ordinary one for the couple. He and Lisa had sorted laundry, eaten lunch, and smoked a pipe-full of marijuana before he left for work before noon. When he returned home that evening, he found his apartment in a shambles and his wife’s body on the floor of the living room.
¶ 5 Lisa Stanley had been stabbed 25 times with a large knife. She suffered wounds to her head, neck, chest, back, and throat. Any one of several wounds would have caused her death quickly. Bloodstain pattern analysis showed the stabbing had begun in the kitchen, the victim had been upright and moving for a period of time during the attack, and the deepest wounds had been inflicted in the living room where the body was found.
¶ 6 Within a week, Hogan confessed during an interview with Oklahoma City Police Department Detective Bob Horn that he had killed Lisa Stanley. The State introduced a tape recording of that confession and played it for the jury. Later, the defense introduced a transcription of the same recording. Hogan told Detective Horn that on January 28th he lied to his wife saying he was going to find work, but instead had gone to Lisa’s apartment to help her with a book report for school. They smoked “some stuff,” got high and “smoked some more.” Trouble began when Lisa insisted he steal a Pioneer stereо for her. He refused and they argued.
¶ 7 According to his statement, the trouble escalated when Hogan, angry, prepared to leave. Lisa told him the neighbors could hear through the walls and threatened to scream that he was raping her. She locked herself in the bathroom. He kicked the door in and threatened to tell her mother and her husband secrets about certain incidents in
¶ 8 The interview continued:
HORN: What’d you do, KEN?
HOGAN: I killed her.
HORN: For the purposes of this report KEN tell me ... tell me what happened.
HOGAN: It hurts, too much ...
HORN: How did you kill her?
HOGAN: With the knife she cut me with and it wasn’t ... it was like I wasn’t even there ... just somebody else ... it wasn’t even me ...
HORN: What were they doing ... what’s this person doing KEN?
HOGAN: It was stabbing her and I couldn’t stop him ... that’s right ... I just went over to be friends, I didn’t come over there to do any harm and now I’ve got to pay ... it’s not fair.
¶ 9 After the stabbing Hogan remained in the apartment and spent some time arranging things to look as if someone else had been “fighting” with Lisa. He tipped over the television, emptied the contents of her purse out “to make it look like someone was looking for stuff’ and took the bathroom rug, stained with his blood, away to be burned.
¶ 10 His decision to confess was not immediate. There was testimony that after he left the apartment, Hogan drove to an emergency room for treatment of his cut hand. There he gave several stories about the cause of his injury. Later he asked his wife to tell the police he had been home and had injured himself in the garage. She testified to that conversation.
¶ 11 At trial, there was no dispute that Ken Hogan had killed Lisa Stanley. The salient question for the jury during first stage was whether Hogan had acted with the deliberate intent to take away her life or in a heat of passion.
1. JURY SELECTION ISSUES
A.
¶ 12 In Proposition VII, Hogan claims several rulings made by the' trial court during jury selection denied him his right to a fair and impartial jury. First, he claims that the trial court erred in refusing to allow defense counsel to inquire of a prospective juror whether she could consider other forms of homicide supported by the evidence. Hogan maintains the purpose of counsel’s question was to determine whether prospective jurors could consider his heat of passion defense. Without this information, he contends, defense counsel could neither ascertain grounds to dismiss a prospective juror for cause, nor intelligently exercise peremptory challenges. We disagree.
¶ 13 The manner and extent of voir dire questioning is discretionary with the trial court. Its rulings will not be disturbed on appeal unless the court’s decision was clearly erroneous or manifestly unreasonable. Lott v. State,
¶ 14 This Court has upheld trial courts who restrict defense theory questions posed to prospective jurors when the questions seek to test prospective jurors’ willingness to accept the accused’s theory of defense rather than to test their impartiality. Black,
B.
¶ 16 Hogan also claims the trial court erred in excusing thirteen prospective jurors for cause without determining whether they could sufficiently set aside their opposition to the death penalty and consider all three available punishment options, including the death penalty.
¶ 17 A prospective juror should be excused for cause when his views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with the court’s instructions and jurors’ oath. Wainwright v. Witt,
[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.
¶ 18 The thirteen prospective jurors identified by Hogan were all examined by the trial court and the parties. Each of them stated unequivocally that under no circumstances would they impose the death penalty. One of the prospective jurors went further, saying that he could not sit in judgment of another under any circumstances. When questioned by defense counsel all of these prospective jurors affirmed that deeply held beliefs against the death penalty prevented them from considering it. Based on this record we find the trial court did not abuse its discretion in removing these jurors for cause.
C.
¶ 19 Hogan’s third claim is that the trial court erred in refusing his request to excuse five jurors for cause. The record shows that Hogan used five of his peremptory challenges to remove these jurors and they did not serve. The record further shows that Hogan waived two of his nine peremptory challenges. Failure to use all peremptory challenges allotted waives any objection to the final composition of the jury. See Ross v. Oklahoma,
III. FIRST STAGE ISSUES
A.
¶20 In Proposition II, Hogan claims his first degree murder conviction must be modified to first degree manslaughter because the State failed to prove beyond a reasonable doubt that he killed Stanley with malice aforethought. Before reaching the merits of this claim, we must determine the proper standard of review. Because the prosecution used only circumstantial evidence to prove he killed with malice aforethought, Hogan claims this Court should use the “reasonable hypothesis” standard.
¶ 21 In Easlick we abandoned the “reasonable hypothesis” test and stated we would review all future sufficiency claims under the Spuehler standard, whereby the appellate court reviews a defendant’s appeal of the sufficiency of the trial evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. See Spuehler v. State,
¶ 22 Applying the Spuehler standard to the evidence here, we find a rational trier of fact could have found Hogan acted with malice aforethought beyond a reasonable doubt when he stabbed Stanley twenty-five times. Hogan admitted he stabbed Stanley multiple times. The evidence showed that Hogan began his knifing of Stanley near the kitchen, following her into the living room where he cut her throat, severing the carotid arteries on the left side of her neck. The jury rejected Hogan’s heat of passion defense and his claims that he “lost it” and was not in control. The manner of the killing and the pattern of the wounds support a finding that Hogan intended to kill Stanley. See Cruse v. State,
B.
¶ 23 In Proposition III, Hogan claims the three references made to his previous trial prejudiced him.
¶ 24 In Romano v. State,
¶ 25 As was true in Romano, Hogan’s jury was well aware that prior proceedings had taken place because some of the testimony was presented by reading a transcript from Hogan’s prior trial. Transcripts from Hogan’s first trial were also used to question and impeach some of the witnesses. The error here was also mitigated by the trial court’s instructions that correctly informed the jury of its role and duty in this case. The trial court instructed the jurors they were the sole judges of the evidence and that they should not surrender their own judgment, but base their decision on the evidence presented during trial. These circumstances where evidence of guilt was strong dictate a finding that the error was harmless.
¶ 26 It is not clear how a reference in the second stage to Hogan’s prior trial could have influenced the jury’s sentencing decision. The jury was never told that Hogan had been previously sentenced to death and that the sentence had been reversed. This jury was properly instructed regarding punishment. We can find no reason to believe that the isolated reference to a prior trial in second stage diverted the jury from its “awesome responsibility” of deciding the appropriate punishment. See Bland v. State,
c.
¶ 27 In Proposition IV, Hogan claims the admission of several photographs violated his right to due process and the Ex Post Facto Clause of both the federal and state constitutions. The State introduced fifty-two photographs during bоth stages of trial: twenty-eight crime scene photographs; eighteen photographs depicting Stanley’s body at the crime scene, five of Stanley taken at the medical examiner’s office and one “in life” graduation photograph. The photographs introduced during first stage will be considered here and the second stage photographs, including the “in life” graduation photograph, will be considered with second stage issues.
¶ 28 Defense counsel moved in limine to exclude the crime scene photographs, arguing any probative value of the photos was far outweighed by the danger of unfair prejudice. Defense counsel objected at trial to State’s Exhibits 4 and 19 because Stanley’s wedding pictures were visible in the background of the photograph of her body. Defense counsel further objected to the admission of State’s Exhibits 14 and 17 arguing those photos were unfairly prejudicial and to the admission of State’s Exhibits 15 and 16 because they were duplicative of State’s Exhibit 14. Defense counsel did not object to State’s Exhibits 3, 6,11,12 and 18. The trial court overruled each of Hogan’s objections.
¶ 29 The decision to admit photographs is discretionary with the trial court and will not be reversed on appeal unless clearly erroneous or manifestly unreasonable. Lott v. State,
¶ 30 Only eleven photographs depicting Stanley at the crime scene were introduced during the first stage.
¶31 We recognize that the challenged photographs may be disturbing to the sensibilities of a normal person. Each of the photographs, however, showed a different aspect of the crime scene or a view of different wounds Stanley sustained. Their probative value was not substantially outweighed by the danger of needless presentation of cumulative evidence. Nor were the photos unfairly prejudicial. The photos show the crime scene, the victim, and the wounds she sustained during her attack. They do not depict the work of a medical examiner as an autopsy photograph might, nor are they gratuitously shocking. These pictures depict the killer’s handiwork. It did not violate due process to show them to Hogan’s jury. See DeRosa v. State,
D.
¶ 32 In Proposition VI, Hogan claims he was dеnied a fair trial by the admission of a privileged communication with his wife Tiffany shortly after Stanley’s death. The conversation consisted of Hogan asking Tiffany to lie and provide him with an alibi for the day Stanley was killed by supporting his claim to police that he was home with her that day and that he cut his hand in the garage.
¶ 33 In 1978, the Oklahoma legislature enacted the Oklahoma Evidence Code [hereinafter Code], which states that every person is competent to be a witness and that no person can refuse to be a witness and disclose information unless authorized by law.
¶ 34 The husband-wife privilege precludes a spouse from testifying in a criminal proceeding as to any confidential communication between the accused and the spouse. 12 O.S.2001 § 2504(B). A communication is confidential and therefore privileged if it is made privately by any person to that person’s spouse, and the content of the conversation is not intended for disclosure to any other person. 12 O.S.2001, § 2504(A). A person waives the privilege if he voluntarily discloses or consents to disclosure of any “significant” part of the privileged matter. 12 O.S.Supp.2002, § 2511.
¶ 35 This Court has not defined “significant” for purposes of determining when the holder of a privilege has waived it by disclosing a part of an otherwise privileged communication to a third party. Wigmore would find voluntary testimony concerning a part of any communication waives the privilege as to the whole of the communication. 8 Wigmore on Evidence, § 2327 at 638; § 2340 at 671-72. Whinery finds that § 2511 is more flexible and “provides a standard within which a court may exercise its discretion depending upon the facts of the particular case and the objectives to be achieved by the privilege in question.” Oklahoma Evidence, vol. 2, Whinery, § 35.13 at 764. We agree with the Whinery approach. Courts should consider the facts of the particular case and the objectives of the particular privilege in judging whether the holder of a privilege has disclosed a significant part of a privileged matter so as to waive the privilege as to the whole communication.
¶ 36 Considering the confidential communication at issue here and the objectives of the husband-wife privilege, we find Hogan disclosed and consented to disclosure of a significant part of the conversation he had with his wife when both he and his wife told police the alibi he contrived. By voluntarily disclosing and consenting to disclosure of a significant part of the confidential conversation he had with his wife, Hogan waived the husband-wife privilege as to the entire conversation and the trial court did not err in admitting Tiffany’s testimony concerning it. 12 O.S.Supp.2002, § 2511.
IV. FIRST STAGE INSTRUCTIONS
A.
¶ 37 In Proposition I, Hogan challenges the trial court’s first stage jury instructions submitting heat of passion manslaughter as a lesser included offense. He claims the jury instructions were erroneous and denied him due process because the instructions did not inform the" jury that the State had to disprove his affirmative defense and prove the absence of heat of passion beyond a reasonable doubt. Hogan also claims the trial court’s instructions were constitutionally deficient because the instructions did not adequately inform the jury that heat of passion
¶ 38 Hogan did not object to the trial court’s manslaughter instructions on this basis; his failure to do so forfeits any error unless he can show plain error. See Norton v. State,
¶ 39 The first step in plain error analysis is to determine whether error occurred. It is settled law that trial courts have a duty to instruct the jury on the salient features of the law raised by the evidence with or without a request. Atterberry v. State,
¶ 40 Hogan did not dispute that he killed Stanley. He defended the first degree murder charge by attempting to convince the jury that he did not kill Stanley with a deliberate intent but rather actеd in a heat of passion. Based on his defense, he asked the trial court to give the uniform instructions on heat of passion manslaughter as a lesser included offense. The trial court gave the uniform manslaughter instructions, submitting the manslaughter offense as a lesser included offense as Hogan requested. The Court deviated from the uniform instructions relating to the jury’s consideration of lesser included offenses and crafted its own.
¶ 41 “Legal defenses are matters which go to the legal exoneration of guilt or evidence which may reduce the charge to a lesser included offense.” Kinsey v. State,
¶ 42 Hogan’s jury was instructed that the State was required to prove each element of first degree murder beyond a reasonable doubt and that Hogan could not be convicted of that offense unless the State had met its burden. The jury was similarly instructed that it could not convict Hogan of heat of passion manslaughter unless the State had proved the elements of that offense beyond a reasonable doubt. These instructions when read as a whole required the State to prove Hogan acted with deliberate intent in killing Lisa Stanley, and, consequently, required the State to prove the absence of any other mental state. The trial court’s instructions neither presumed any element nor required Hogan to prove any element in order to reduce the crime to manslaughter.
¶ 43 The instructions were sufficiently clear in explaining the difference between the mental state required for first degree murder and the mental state required for manslaughter. As we stated in Black:
The use of “deliberate intent” in the definition of malice in Oklahoma connotes an intent that is thought out or considered before commission of the fatal act, rather than some undefined condition of the mind or heart. Because heat of passion requires the defendant to act on the force of a strong emotion following adequate provocation that would naturally affect the ability to reason and render the mind incapablе of cool reflection, i.e., not with a deliberate intent pre-formed, the Oklahoma definitions of malice and heat of passion show they cannot co-exist. Although the instructions in the instant case do not specifically state these mental states cannot coexist ..., the definitions employed to define the mental states of murder and heat of passion manslaughter sufficiently informed the jury that the differing mens rea elements were mutually exclusive.
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Although the instructions administered advised the jury procedurally to consider murder first and only if it had a reasonable doubt as to the proof of murder then to consider manslaughter, other instructions dictated that the jury consider Appellant’s heat of passion evidence in determining if Appellant possessed a deliberate intent when he stabbed Pogue. Specifically, in its consideration of the murder elements, the jury was instructed to consider the*925 external circumstances surrounding the commission of the homicidal act to determine if Appellant possessed a deliberate intent to take a human life. Such external circumstances included Appellant’s “words, conduct, demeanor, motive, and all other circumstances connected” with the fatal stabbing of Pogue. Therefore, based on the instructions administered, we find Appellant was not deprived of having the jury consider his heat of passion defense in tandem with the murder charge. As such, we find the instructions administered in this case were constitutionally adequate to ensure that the appropriate burdens of proof were allocated to the parties and that the jury was free to consider Appellant’s defense.
Black,
¶ 44 The trial court in this case gave the same substantive instructions given in Black on first degree murder and heat of passion manslaughter, including all of the definitions provided in the uniform instructions. These instructions when read as a whole sufficiently state the applicable law of this case as they did in Black.
¶ 45 Any objections Hogan had to the format of the instructions or the order in which they were presented required his objection and submission of alternative instructions. Not only did he fail to object to these particular instructions, they were given at his request.
B.
¶ 46 In Proposition V, Hogan argues that the trial court’s refusal to give his requested instruction on the “exculpatory statement doctrine”
¶ 47 The trial court did not abuse its discretion in refusing to give a jury instruction on exculpatory statements because Hogan’s statеment to the police was disproved by other evidence in the case. See Kinchion,
V. SECOND STAGE ISSUES
A.
¶ 48 In Proposition VIII, Hogan claims he was denied due process and that the trial court lacked jurisdiction to instruct on the death penalty absent the filing of a new Bill of Particulars for retrial. He maintains that the notice filed by the State could not constitutionally substitute for a new Bill of Particulars. We disagree.
¶49 The purpose of filing a Bill of Particular's is to give the defendant notice that the State is seeking the death penalty based on certain identified statutory aggravating circumstances so the defendant can prepare a defense. See Banks v. State,
B.
¶ 50 At the capital sentencing stage of Hogan’s first trial, the State introduced evidence of three aggravating circumstances: that Hogan presented a continuing threat; that the murder was especially heinous, atrocious, or cruel; and that Hogan murdered Stanley to avoid arrest or prosecution. The jury unanimously found the second aggravator was proved beyond a reasonable doubt and sentenced Hogan to death. Nothing in the record sheds any light on the jury’s treatment of the other two aggravators.
¶ 51 At retrial the State presented evidence of the heinous, atrocious, or cruel and continuing threat aggravators.
¶ 52 Hogan argues that the failure of his first jury to unanimously find he presented a continuing threat was an effective acquittal of that aggravator which terminated jeopardy, invoked the protection of the double jeopardy clause, and prohibited the State from charging it again at his second trial. He argues that Sattazahn v. Pennsylvania,
¶ 53 In Poland v. Arizona,
¶ 54 The court held in Poland that neither the sentencer nor the reviewing court had decided that the prosecution had not proved its case for the death penalty and thus acquitted the petitioners because both had found evidence of an aggravating circumstance.
¶ 55 Nothing in Sattazahn abrogates Poland’s holding and nothing supports Hogan’s
¶ 56 Unlike Sattazahn who appealed a life sentence imposed by a judge by operation of law, Hogan appeals a death sentence imposed by a jury on a verdict of guilty on murder plus aggravating circumstances. By sentencing Hogan to death at his first trial on a finding the murder was especially heinous, atrocious, or cruel, Hogan’s jury clearly did not acquit him of murder plus aggravating circumstances. Therefore, he cannot make a claim of entitlement to a life sentence on the basis of either acquittal or operation of law. In the absence of a jeopardy-terminating event entitling him to a life sentence (i.e., acquittal by jury on aggravating circumstances and imposition of life sentence or finding of insufficient evidence by appellate court of all aggravators), retrial for murder plus aggravating circumstances is not barred on double jeopardy grounds.
¶ 57 Contrary to his claim, Part III of the Sattazahn opinion (joined by three justices) does not support his position that his first jury effectively acquitted him of the continuing threat aggravator. Part III of that opinion discusses the application of Apprendi v. New Jersey
In the post -Ring world, the Double Jeopardy Clause can, and must, apply to some capital-sentencing proceedings consistent with the text of the Fifth Amendment. If a jury unanimously concludes that a State has failed to meet its burden of proving the existеnce of one or more aggravating circumstances, double-jeopardy protections attach to that “acquittal” on the offense of “murder plus aggravating cireum-stance(s).” Thus, [Arizona v.] Rumsey [467 U.S. 203 ,104 S.Ct. 2306 ,81 L.Ed.2d 164 (1984)] was correct to focus on whether a factfinder had made findings that constituted an “acquittal” of the aggravating circumstances; but the reason that issue was central is not that a capital-sentencing proceeding is “comparable to a trial,” ... but rather that “murder plus one or more aggravating circumstances” is a separate offense from “murder” simpliciter.
Sattazahn,
¶ 58 Hogan’s first jury found that the murder was especially heinous, atrocious, or cruel and convicted him of murder plus aggravating circumstance(s). Even were we to treat each aggravator as a separate offense as Hogan desires rather than distinguishing as separate offenses murder simpliciter and murder plus aggravating circumstance(s), the only thing we know about Hogan’s first jury
¶ 59 For that reason, this ease does not implicate the concerns of protecting the finality of acquittals present in Bullington and Rumsey. There is no reason to shield a defendant in Hogan’s position from further litigation; further litigation is the only hope he has. Poland,
C.
¶ 60 In Proposition IV, Hogan challenges the introduction of Stanley’s “in-life” photograph during second stage. Hogan killed Stanley in January 1988. At the time he committed the crime, “in-life” photographs were inadmissible. See Thornburg v. State,
¶ 61 The United States Constitution expressly prohibits states from enacting ex post facto laws. U.S. Const. art. I, § 10, cl. 1. “[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage’ [to affected offenders] ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” California Dep’t of Corrections v. Morales,
¶ 62 Hogan also challenges the constitutionality of the amended § 2403, arguing the admission of an “in-life” photograph without regard to the evidentiary balancing test violates due process and makes § 2403 vague and overbroad. Hogan maintains that the blanket admissibility of such photographs unnecessarily risks exposing jurors to prejudicial information.
¶ 63 We presume that a legislative act is constitutional; the party attacking the statute has the burden of proof that it is not. State v. Thomason,
¶ 64 Contrary to Hogan’s claim that § 2403 permits the wholesale admission of “in-life” photographs, the statute makes it clear that only one “appropriate” photograph is admissible. 12 O.S.Supp.2003, § 2403. Inappropriate photographs would be those that violate the balancing test articulated in the preceding sentence of that section. Here, the State offered Stanley’s “in-life” photograph, a graduation photograph of Stanley taken in 1986, during the second stage victim impact testimony of Stanley’s mother. The photograph was offered “to show the general appearance and condition of the victim while alive.” The photograph was appropriate and its probative value was not substantially outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion in admitting it.
¶ 66 Hogan also challenges the admission of twelve photographs introduced during second stage to prove that Stanley’s murder was especially heinous, atrocious, or cruel. Hogan claims he was denied a fair sentencing trial because State’s Exhibits 42-44, 64-70, 90-91 were extremely gruesome and unfairly prejudicial.
¶ 66 To prove a murder was especially heinous, atrocious, or cruel, the State must introduce competent evidence indicating the victim’s death was preceded by torture or serious physical abuse. See Davis v. State,
¶ 67 The other nine photographs consisted of seven pictures of Stanley at the scene depicting close-up shots of Stanley’s various wounds (State’s Ex. 64-70) and two of Stanley at the medical examiner’s office depicting the large gash wound on her neck from two different angles (State’s Ex. 90-91). These photographs are gruesome. Deciding whether such exhibits are relevant and more probative than prejudicial, however, is within the trial court’s discretion. Lockett,
D.
¶ 68 In Proposition X, Hogan claims that he was tactically precluded from calling character witnesses in mitigation and from allowing other mitigation witnesses to testify fully because of the trial court’s erroneous ruling concerning State’s rebuttal witness, Kevin Freeman. The trial court barred the State from introducing certain evidence through Freeman tending to show Hogan was a continuing threat. The court’s ruling was made because Freeman’s evidence had not been timely disclosed to the defense. The trial court found, however, that Freeman could testify in rebuttal if the defense “opened the door.” Freeman’s testimony would rebut evidence of Hogan’s good character.
E.
¶ 70 In Proposition XI, Hogan attacks the victim impact evidence in this case. First, he claims that the probative value of the victim impact evidence was substantially outweighed by the danger of unfair prejudice because it focused almost exclusively on the emotional impact of Stanley’s death on her parents. Second, he argues that victim impact evidence has no place in Oklahoma’s sentencing scheme because the evidence acts as a “superaggravator.” Finally, he contends that its admission in this case violated the Ex Post Facto Clause.
¶ 71 This Court has consistently rejected claims that victim impact evidence acts as a superaggravаtor and that its admission in criminal trials where the crime was committed before the legislature passed legislation allowing it violates the Ex Post Facto Clause. See Murphy v. State,
¶ 72 Hogan claims the trial court erred in admitting the victim-impact evidence in this case because it was more prejudicial than probative, making it less likely that the jury’s sentencing decision was a reasoned, moral response to the question of whether Hogan deserved the death penalty. Hogan claims several statements by Stanley’s parents referring to her as a “special angel,” and a “gift from God,” and Stanley’s mother’s statement, “I loved and protected Ken’s children and could not comprehend that he would hurt mine” were too emotional and unfairly prejudicial to be considered by the jury in determining punishment. He also objects to Stanley’s mother’s testimony that she had nightmares where she would wake-up “screaming for Lisa to run.”
¶ 73 Evidence about the victim and about the financial, emotional, psychological, and physical impact of the murder on the victim’s family is admissible. 21 O.S.2001, § 701.10(C); 22 O.S.2001, § 984. Hogan argues his case is like Cargle v. State,
F.
¶ 74 In Proposition IX, Hogan argues that the application of the especially heinous, atrocious, or cruel aggravating circumstance to situations where the evidence shows the decedent’s death occurred during an altercation initiated by the decedent renders it unconstitutionally vague and overbroad unless a
¶ 75 Hogan also asserts that the evidence in this case was insufficient to prove that aggravator beyond a reasonable doubt. When the sufficiency of the evidence supporting an aggravator is challenged on appeal, we review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the facts necessary to support the aggravating circumstance beyond a reasonable doubt. DeRosa,
¶ 76 This Court upholds a jury’s finding of this aggravating circumstance when it is supported by proof of conscious, serious physical abuse or torture prior to death. Davis,
¶ 77 Finally, Hogan argues that his death sentence is not valid because the mitigating evidence outweighed the sole aggravating circumstance. Hogan claims that the jury should have been instructed, as he requested, that the aggravating circumstances must outweigh the mitigating evidence beyond a reasonable doubt. The failure to so instruct, he contends, resulted in the imposition of a death sentence that does not meet the Eighth Amendment’s reliability requirements. We rejected this claim in Torres v. State
G.
¶ 78 In Proposition XII, Hogan claims that Oklahoma’s death penalty statute violates the Establishment Clause of the First Amendment and is therefore unconstitutional.
¶ 79 Whether Oklahoma’s death penalty statute violates the Establishment Clause is a question of first impression for this Court. A statute does not violate the Estаblishment Clause if (1) it has a secular legislative purpose, (2) its principal or primary effect neither advances nor inhibits religion, and (3) it does not create excessive entanglement between government and religion. Lemon v. Kurtzman,
(1) the death penalty is the only proportional punishment for certain crimes;
(2) the death penalty ensures, at a minimum, that the offender will never harm anyone again;
(3) the death penalty may deter some persons (professional criminals and those already imprisoned for life), and possibly others, from committing murder; and
(4) life imprisonment without parole is not a viable alternative to the death penalty because,
(a) capital offenders are a danger to others in the prison environment,
(b) persons imprisoned literally for life have little incentive to behave properly, and
(c) it is undesirable, costly, and possibly inhumane to keep persons in prison until they actually die from old age or disease.
Holberg,
¶81 We find the reasoning in Holberg persuasive and that the purpose of the death penalty statute in Oklahoma is likewise punitive in nature. The purpose and primary effect of our death penalty statute is not the advancement of any religion; it does not violate the Establishment Clause.
¶ 82 Next Hogan contends that the justifications for the death penalty are invalid. He argues that the death penalty is neither cost-effective nor serves as a deterrent to would-be offenders. To support this claim Hogan requests an evidentiary hearing to supplement the record with evidence concerning this issue and funding for the presentation of expert testimony on this issue. Not even a clear showing that the death penalty was not cost-effective and wholly failed to deter criminal acts would justify this Court in abolishing the death penalty. The issues Hogan raises here are policy matters clearly within the purview of the legislature and not the courts. Hogan’s request for an eviden-tiary hearing is denied.
¶ 83 Hogan also argues that Oklahoma’s death penalty procedure in
H.
¶ 84 In Proposition XIII, Hogan raises six issues previously settled by this Court in order to prevent a finding of waiver in any subsequent state or federal proceedings. Hogan concedes that we have previously rejected each contention. See Harris v. State,
I.
¶ 85 In Proposition XIV, Hogan claims the trial court erred in failing to instruct the jury in second stage that it was to determine the voluntariness of his statements to police and disregard them if it found the statements were not voluntary. Because Hogan failed to object and request such an instruction, we review for plain error only. See Norton,
¶86 The record shows, and Hogan concedes, that the trial court gave the proper instruction concerning the voluntariness of his statements to police in its first stage instructions. The record further shows that the trial court instructed the jury that its first stage instructions were applicable during second stage where appropriate. The instruction Hogan complains was omitted was in fact incorporated into the trial court’s second stage instructions. This claim is without merit.
VI. PROSECUTORIAL MISCONDUCT
¶ 87 In Proposition XV, Hogan argues that certain parts of the prosecutor’s closing arguments constitute prosecutorial misconduct and violated his right to due process and a fair trial. Hogan objected to only one of the comments, preserving the error for appeal; we review the remaining remarks identified on appeal for plain error only. Matthews v. State,
¶88 In reviewing this due process claim, we must determine whether the prosecutorial misconduct so infected Hogan’s trial that it was rendered fundamentally unfair, such that the jury’s verdict should not be relied upon. DeRosa,
¶ 89 First, Hogan argues that the prosecutor “conditioned jurors to equate their responsibility of ensuring justice with imposing the death penalty” throughout trial. He claims this type of argument fosters an “us against them” attitude and argues it is improper for a prosecutor to tell a jury that the only justice is the prosecutor’s view of justice. He cites portions of two segments of the prosecutor’s closing argument which read in full:
What is justice? Because that’s the ultimate issue. What verdict can you walk back into this courtroom and bring tо us and say out loud that will represent to the parties involved in this lawsuit justice? Because that’s the issue that you now have before you. Justice. That we talked about all through voir dire. We talked about it — and I know I discussed it with each and every one of you individually, the issue of justice, and the fact that you take an oath to bring justice to this courtroom. That’s what you promised me that you would do.
And I would submit to you that based on the law that you have and the facts that you’ve heard that there is no verdict that represents justice for this (indicating), no verdict that you could bring into this courtroom that represents justice other than the penalty of death. And I ask that you go upstairs and that you do your duty as jurors and that you return to this courtroom with a verdict of death for Mr. Hogan.
¶ 90 There was no objection in either instance. This Court condemns arguments that improperly express a prosecutor’s personal opinion as to the appropriateness of the death penalty. See Washington v. State,
¶ 91 Next Hogan claims that the prosecutor denigrated his defense by arguing that his statements about Stanley’s death were self-serving and by telling the jury that Hogan “butchered” her. Again, there were no objections to these statements. These comments did not deprive Hogan of a fair trial or sentencing. “Parties have wide latitude, in closing argument, to discuss the evidence and reasonable inferences from evidence, and relief is required only where grossly improper and unwarranted argument affects a defendant’s rights.” Hanson v. State,
¶ 92 Third, Hogan claims that the prosecutor erroneously told the jury not to consider his mitigating evidence when the prosecutor stated, “I would submit to you that certainly with respect to mitigator number six, that there is no proof at all that Mr. Hogan feels one ounce of remorse for what he did to Lisa Renee Stanley.” There was no objection to this statement. The comment was a reasonable inference based on the evidence and thus Hogan cannot prove plain error. Id.
¶ 93 Fourth, Hogan claims the prosecutor violated his right to a fair and reliable sentencing proceeding by equating guilt with the reduction of moral culpability in its second stage closing argument. Because the рurpose of mitigating evidence is to reduce moral culpability at sentencing, not legal responsibility for the offense, see OUJI-CR 2d No. 4-78, he contends the prosecutor’s argument confused the jury and effectively told it to disregard his mitigating evidence entirely. Hogan cites the prosecutor’s argument questioning whether his mitigating evidence actually mitigated against the death penalty.
¶ 94 “Mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame.” OUJI-CR2d 4-78. The fact finder determines what circumstances are mitigating under the facts and circumstances of any case. In Harris, we rejected the defendant’s claim that the prosecutor mischaracterized his mitigating evidence by rhetorically asking the jury whether it rendered the defendant “less responsible” for his crimes. Harris,
¶ 95 Fifth, Hogan claims that the prosecutor argued that all murders deserve the death penalty. Hogan did not object. When the prosecutor’s argument is read in context, the prosecutor told the jury its punishment decision should fit the crime that Hogan committed. This argument was not improper and Hogan cannot show plain error.
¶ 96 Hogan also argues that the cumulative effect of these arguments contributed to his conviction and death sentence. We have found no individual error; therefore we do not find any relief is warranted when the remarks are considered in the aggregate.
¶ 97 Hogan argues, finally, that to the extent any of these claims are deemed
VII. CUMULATIVE ERROR
¶ 98 In Proposition XVI, Hogan claims that even if no individual error in his case merits reversal, the cumulative effect of the errors committed during his trial necessitates reversal of his conviction or modification of his death sentence. This Court has recognized that when there are “numerous irregularities during the course of [a] trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial.” DeRosa,
VIII. MANDATORY SENTENCE REVIEW
¶ 99 In Proposition XVII, Hogan contends that his death sentence cannot be upheld under this Court’s mandatory sentence review. Title 21 O.S.2001, § 701.13 requires this Court to determine “[w]hether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance.” After conducting this review, this Court may order any corrective relief that is warranted or affirm the sentence. 21 O.S.2001, § 701.13(E).
¶ 100 We have reviewed the record in this case in conjunction with Hogan’s claims for relief and have found that Hogan’s conviction and death sentence were not the result of trial court error, prosecutorial misconduct, or improper evidence or witness testimony. We therefore find Hogan’s death sentence was not imposed because of any arbitrary factor, passion, or prejudice.
¶ 101 We have also upheld the jury’s finding that the murder was especially heinous, atrocious, or cruel because the aggravating circumstance is factually substantiated. The Judgment and Sentence of the trial court is AFFIRMED.
Notes
. Hogaa filed his Petition in Error on December 1, 2003. Hogan's Brief in Chief was filed on July 26, 2004. The State’s brief was filed on November 23, 2004. This Court heard oral argument on August 23, 2005.
. Under the reasonable hypothesis standard, this Court would review the evidence in the light most favorable to the State to determine whether the circumstantial evidence ruled out all reasonable hypotheses except that Hogan acted with malice aforethought.
. The first reference occurred when defense counsel asked Tiffany Harrington whether this was the first time she testified regarding this incident. Harrington answered, "Except for the first trial.” The next instance occurred during the prosecution’s cross-examination of a defense witness. The prosecutor asked, "In fact, at the prior trial, you and I spoke, did we not?” Defense counsel objected, moved for a mistrial but did not ask the trial court to admonish the jury. The trial court sustained the objection, but denied the motion for a mistrial. The final instance occurred during second stage when Investigator Bud Argo testified that he did not think he could identify Hogan. The prosecutor refreshed Argo's memory with the transcript from Hogan's first trial, reading the portion where Argo identified Hogan and asking Argo if he recalled his testimony. Argo stated, "Yes, that was in the first trial.” Defense counsel asked for a second stage mistrial. The trial court admonished the prosecutor to couch her questions requiring only a yes or no response and denied Hogan's motion for a mistrial.
. The State showed photographs of Stanley in State's Exhibits 42-44, 65-70, and 90-91 to the medical examiner during first stage, but did not introduce these exhibits until second stage.
.The prosecutor asked Hogan’s former wife during trial:
Q. (Prosecutor) At some point prior to going to the pоlice department and after the police had called to try to question your husband, did you and he have some discussion about what to say to the police?
A. (Tiffany Hogan Harrington) Yes.
Q. Okay. Can you please describe that for us?
A. To tell them that he was home all day?
Q. Okay. And what did he tell you to tell them about the injury to his hand?
A. That he had cut a hose in the garage.
Q. Okay. And did you do that?
A. Yes.
Q. So you told that to the police when they first questioned you?
A. Yes.
Q. It is a certain fact that at some point during your interview with the detectives you told them that that, in fact, was not true?
A. Yes.
Q. And do you recall at what point it was during the interview that you told them the truth that Mr. Hogan had not, in fact been at home?
A. Yes.
Q. And did you tell the police everything that Mr. Hogan had said to you that he intended for you to convey to the police officers?
A. Yes.
(Tr.6 at 188-89)
. Defense counsel first objected to testimony about the conversation between Hogan and his wife during the State's opening statement.
. Section 2501 provides in part:
Except as otherwise provided by constitution, statute or rules promulgated by the Supreme Court no person has a privilege to:
1. Refuse to be a witness;
2. Refuse to disclose any matter.
Section 2601 provides that every person is competent to be a witness except as otherwise provided in the Oklahoma Evidence Code,
. At the same time the legislature enacted the Code, it repealed the Code of Civil Procedure's privilege of spousal immunity, also known as spousal disqualification, that forbids a spouse from being a witness against the other. See 12 O.S., § 385(3) (providing that husbands and wives were incompetent to be witnesses for or against each other except concerning transactions in which one acted as the agent of the other or when they were joint parties and had a joint interest in the action.) Section 385 also contained a broad confidential marital communication privilege. The legislature repealed the Code of Criminal Procedure's privilege of spousal immunity four years later. See 22 O.S., § 702 (providing "neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, or except in a criminal prosecution against either the husband or the wife, or both, for a felony committed by either, or both, against the minor children of either the husband or the wife, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other or except on a trial of a felony committed by one, or both, against the minor children of either the husband or the wife.") Prior to the adoption of the Code, § 702 made it clear that in all but a very narrow range of circumstances the marital privilege could be invoked to prevent one spouse from testifying against the other. Lavicky v. State,
. Instruction No. 13 substantially sets forth the procedure contained in the uniform instructions for consideration of lesser included offenses. It properly informed the jury of the punishment range for manslaughter and that the issue of punishment for first degree murder was not before the jury at that time.
. Hogan's requested instructions on manslaughter as a lesser included offense were filed and the record shows the trial court included them all in its instructions, rearranging the order of a few sentences and paragraphs concerning how to consider lesser included offenses.
. This burden is reflected in the uniform instructions on defenses. See OUJI-CR2d 8-5 (burden of proof for defense of another); OUJI-CR2d 8-17 (burden of proof for defense of property); OUJI-CR2d 8-22 (burden of proof for duress); OUJI-CR2d 8-26 (burden of proof for entrapment); OUJI-CR2d 8-30 (burden of proof for excusable homicide); OUJI-CR2d 8-33 (burden of proof for insanity); OUJI-CR2d 8-38 (burden of proof for voluntary intoxication); OUJI-CR2d 8-44 (burden of proof for involuntary intoxication); and OUJI-CR2d 8-49 (burden of proof for self-defense).
. These instructions satisfy In re Winship,
.The dissent contends the Court here upholds an infirm verdict resting on faulty jury instructions. The dissent maintains, contrary to this Court’s holding in Black, that the mental states of malice aforethought and heat of passion are not sufficiently distinguished by the uniform instructions. And therefore, due process requires an instruction informing the jury that the State must disprove the heat of passion manslaughter defense even when the defendant has requested the court submit heat of passion manslaughter as a lesser included offense. Malice aforethought murder requires the defendant not only intend to kill but form a deliberate intention to take away the life of another person. OUJI-CR2d 4-62. A deliberate act is one that requires a cool mind that is capable of reflection. Heat of passion manslaughter, on the other hand, is a homicide committed by a person who is incapable of that cool reflection called for by the requirement of deliberation because of intense emotion caused from actions of the victim. OUJI-CR2d 4-95, 4-97, 4-98, 4-99, 4-100 and 4-101. It is the provocation of the deceased that causes the passion or emotion of the defendant and it is that passion or emotion that causes the defendant to perpetrate the act which results in death. OUJI-CR2d 4-101. Acting in the heat of passion need not overcome the killer's reason or destroy free exercise of choice; rather the sudden passion precludes deliberation and causes the killer to act.
. As we stated in Black, "[t]hat is not to say more specific instructions, if requested, [setting forth heat of passion manslaughter as a defense rather than a lesser included offense] are not desirable.” Black,
. See note 10, supra.
. The "exculpatory statement doctrine” states:
An exculpatory statement is defined as a statement by the defendant that tends to clear a defendant from alleged guilt, or a statement that tends to justify or excuse his/her actions or presence.
Where the State introduces in connection with a confession or admission of a defendant an exculpatory statement, which, if true, would entitle him/her to an acquittal, he/she must be acquitted unless such exculpatory statement has been disproved or shown to be false by other evidence in the case. The falsity of an exculpatory statement may be shown by circumstantial as well as by direct evidence.
A statement is exculpatory within the meaning of this instruction only if it concerns a tangible, affirmative, factual matter capable of specific disproof. A statement is not exculpatory within the meaning of this instruction if it merely restates the defendant's contention of innocence.
. The State did not pursue the avoid arrest aggravator at Hogan's retrial.
.The petitioners in Poland were convicted of a double murder arising out of a robbery of a currency courier. Id. at 149,
On appeal, the Arizona Supreme Court reversed the convictions and death sentence finding among other errors that the evidence was insufficient to support the aggravating circumstance that the murders were "especially heinous, cruel or depraved.” Id. at 150,
At retrial, the petitioners were again convicted and sentenced to death. Id. The petitioners appealed to the Arizona Supreme Court arguing, inter alia, that the Double Jeopardy Clause barred reimposition of the death penalty because the appellate court had previously acquitted them by finding the evidence insufficient to support the sole aggravator found by the sentencer. Id. at 151,
. As under Arizona’s capital sentencing scheme, an Oklahoma capital sentencing jury's finding of any particular aggravating circumstance does not of itself "convict” a defendant and require the death penalty, and its failure to find any particular aggravating circumstance does not "acquit” a defendant and preclude the death penalty.
. The dissent acknowledges that Hogan can prevail only if this Court declines to follow Poland.
. The dissent misconstrues our holdings in Crawford v. State,
.
.
. The dissent counts two of the justices joining Part III (Rehnquist, C.J., now deceased, was the third justice joining Part III) and the four dissenters in Sattazahn as rejecting the doctrinal basis for the Poland decision. This position is not supported by a careful reading of Sattazahn. In Part II of the Sattazahn decision, five justices spoke approvingly of the so-called Bullington line of cases which includes Poland:
Under the Bullington line of cases just discussed, the touchstone for double-jeopardy protection in capital-sentencing proceedings is*929 whether there has been an “acquittal.” Petitioner here cannot establish that the jury or the court “acquitted” him during his first capital-sentencing proceeding. As to the jury: The verdict form returned by the foreman stated that the jury deadlocked 9-to-3 on whether to impose the death penalty; it made no findings with respect to the alleged aggravating circumstance. That result — or more appropriately, that non-result — cannot fairly be called an acquittal "based on findings sufficient to establish legal entitlement to the life sentence.”
Sattazahn,
The Sattazahn dissenters grappled with the issue of whether jeopardy is terminated by entry of a state-mandated life sentence when the jury deadlocks on punishment. The dissent here contends that 6 of the Sattazahn dissent, when combined with the position of the justices in the Part III plurality, establishes that a capital sentencing proceeding is a mini trial on each individual aggravator and that a jury's failure to find a particular aggravator constitutes an acquittal. In 6, the Sattazahn dissent states "[tjhis Court has determined ... that for purposes of the Double Jeopardy Clause, capital sentencing proceedings involving proof of one or more aggravating factors are to be treated as trials of separate offenses, not mere sentencing proceedings.” (Id. at 126 n. 6,
. While these justices equate aggravators with elements of a crime, that does not mean a jury's failure to find a particular aggravating circumstance alleged by the prosecution constitutes an acquittal. Rather, aggravators are elements that, if proven, establish the greater offense of murder plus aggravating circumstances. If the jury rejects the one or more aggravators alleged and sentences the defendant to life, the defendant has been acquitted of murder plus aggravating circumstances and jeopardy attaches to that acquittal. Sattazahn,
. The Sattazahn court found that a lack of findings with respect to an aggravator is not an acquittal. Sattazahn,
. Freeman, Hogan’s cousin, did testify that he and Hogan burglarized some businesses together around the time of the homicide and that Hogan had admitted shooting BB’s at a closed convenience store because he was angry over being fired. The trial court did not allow Freeman to testify that Hogan had stolen a gun from his parents to shoot out the windows in the convenience store or that Hogan had indicated that if he ever encountered a witness during one of their burglaries, they would have to kill the witness so they could not be identified. The trial court also precluded Freeman from testifying that Hogan asked him and another accomplice to break into
. The Establishment Clause of the First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion.” This guarantee was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Cantwell v. Connecticut,
. We denied Hogan’s request for an evidentiary hearing and funds for an expert on the cost effectiveness and deterrent value of the death penalty in Proposition XII, supra.
. Hogan quotes a part of one sentence from the five pages that he references for this complaint. The sentence in full reads, "I would submit to you based on the evidence that you’re going to find that the State of Oklahoma has in fact proved the aggravators and that in fact the miti-gators don’t exist or certainly could not in any way reduce his culpability for this offense."
Dissenting Opinion
Dissenting:
¶ 1 I dissent from today’s opinion because I disagree with the majority’s resolution of Propositions I, V, VI, and VIII of Hogan’s appeal.
¶2 Hogan admitted that he killed Lisa Stanley. His defense to the first-degree murder charge against him was that he killed her in a “heat of passion,”, which constituted first-degree manslaughter rather than malice-aforethought murder. In Proposition I, Hogan claims that his jury should have been instructed on his theory of defense, ie., that the killing was heat-of-passion manslaughter, and that the State was required to prove, beyond a reasonable doubt, that he did not kill in the heat of passion.
¶ 4 Thus the logical legal conclusion to draw from the Court’s analysis appears to be that once sufficient evidence has been presented at trial to raise the affirmative defense (to a first-degree murder charge) of heat-of-passion manslaughter, the trial court should be required, with or without a request from the defendant, to instruct the jury that heat-of-passion manslaughter is the defendant’s defense and to instruct the jury that in order to convict the defendant of first-degree murder, the State is required to establish, beyond a reasonable doubt, that the defendant was not acting in the heat of passion. This conclusion is also the logical extension of the precedents of this Court.
¶ 5 In Mullaney v. Wilbur,
¶ 6 In Davis v. Maynard,
¶ 7 In McCormick v. State,
¶ 9 The first-degree murder defendant in Black — like the defendants in Mullaney, Lof-ton, and McCormick, and like Hogan — invoked heat-of-passion manslaughter “not simply as an alternative to the charge of murder, but as an affirmative defense to the crime charged by the State.”
¶ 11 Remarkably, after emphasizing that Black’s jury was not instructed that heat-of-passion manslaughter required a lack of intent to kill, the Black opinion goes on to conclude that under Davis and McCormick — which specifically relied upon the inclusion of this very instruction — the jury instructions given to Black’s jury were not erroneous.
The passion or emotion which must exist in the defendant refers to any strong emotion, such as fear, terror, anger, rage or resentment. This passion or emotion must have existed to such a degree as would naturally affect the ability to reason and render the mind incapable of cool reflection. However, the passion need not have been such as ivould entirely overcome reason, or be so overpowering as to destroy free exercise of choice. ...35
Nevertheless, the Black opinion concluded that, under these instructions, acting in the “heat of passion” and acting with “deliberate intent” are “mutually exclusive” and that these mental states “cannot co-exist.”
¶ 13 Our uniform instruction defining what kind of “passion” must exist for heat-of-passion manslaughter makes quite clear that acting in the “heat of passion” and acting with “deliberate intent” are not mutually exclusive.
¶ 14 This conclusion fits with our commonsense understanding that even when people are affected by very strong emotions, this does not necessarily mean that they lose complete control of their ability to control their actions, nor does it mean that they cannot act deliberately, such that they can and should be held accountable for their ac
¶ 15 Although the Black opinion concluded that the instructions in that case were “constitutionally adequate,”
¶ 16 Most of the affirmative defenses recognized in Oklahoma (and noted by the majority opinion) are “complete defenses” or “exculpating defenses.” Such defenses, when properly established, totally absolve the defendant of criminal liability. These defenses include insanity, self-defense, defense of another, accident, involuntary intoxication, and duress.
¶ 17 Therefore, an Oklahoma jury should be required to consider this defense, when it is properly raised, but a finding that it applies would result in a conviction on the lesser offense of first-degree manslaughter rather than simply an acquittal. I suggest that when a defendant charged with malice-aforethought murder asserts heat-of-passion manslaughter as a defense and some evidence is presented at trial in support of the defense, the jury should be instructed regarding the availability of this defense and the State’s burden to disprove it. Such an instruction (or instructions) could state as follows:
Evidence has been introduced that the killing in this case constitutes first-degree (heat-of-passion) manslaughter, as a defense to the charge of first-degree murder.47
You are instructed that you must first consider whether the defendant committed the crime of first-degree manslaughter, as defined in these instructions. If you unanimously agree that the evidence presented establishes, beyond a reasonable doubt, that the defendant committed the crime of first-degree manslaughter, you should convict him of first-degree manslaughter.
You are further instructed that in order to convict the defendant of first-degree murder, the State must prove, beyond a reasonable doubt, that he/she did not commit first-degree manslaughter. If you unanimously agree that the defendant did not commit the crime of first-degree manslaughter, you should then consider whether he/she committed the crime of first-degree murder, as defined in these instructions.48
It is my belief that we should stop making excuses for the failure to give such an instruction, stop contorting the English language to rationalize our failure to require one, and start requiring that such an instruction be given.
¶ 18 I would conclude that Hogan should prevail on his Proposition I claim, by finding that the trial court committed plain error and violated Due Process when it failed to instruct Hogan’s jury regarding his affirmative defense and the State’s burden to disprove it. This conclusion follows from the Supreme Court’s decision in Mullaney and our Court’s decision in McCormick, as well as our well-established approach to the treatment of affirmative defenses. This conclusion is also consistent with the Tenth Circuit Court’s decisions in Lofton and Davis.
¶ 19 I recognize the irony of granting Hogan a further retrial on a claim that seems only one step removed from the error that led to his first retrial, particularly when Hogan did not object to the court’s instructions or propose an instruction of the sort he now maintains was required. Nevertheless, the lesson of Black is that when this Court strains to uphold a conviction, despite a trial court’s inadequate instructions to the defendant’s jury, the same inadequate instructions will continue to be given in other cases. And this Court will again be faced with the same issue in another hard case, in another appeal.
¶ 20 In Proposition Y, Hogan challenges the trial court’s refusal to instruct his jury regarding the “exculpatory statement doctrine.” The uniform instruction sought by
¶ 21 Although I would be willing to agree with a specific finding that Hogan’s statement to the police was not truly “exculpatory,” as that term is defined in our uniform instruction,
¶ 22 I also disagree with the majority opinion’s resolution of Hogan’s Proposition VI marital privilege claim. In my judgment the theoretical and policy bases for protecting spousal communications — family harmony, affection, confidence, and loyalty within the marital relationship — are as valid today as they were 300 years ago. We ought not force or permit one spouse to testify against the other regarding a “confidential communication” between them, and Oklahoma’s current Evidence Code continues to protect such communications.
¶23 Here Hogan contrived a story and asked his wife to lie by repeating it. The majority opinion’s analysis conflates the contrived story with the request to lie and concludes that the privilege was waived, because the (false) story was intended to be and was disclosed. Of course it is true that Hogan did not intend that his wife keep the contents of the concocted story “confidential,” since he asked his wife to tell the story in order to provide him with an alibi. That was the whole point. But the “confidential communication” at issue is Hogan’s admission to his wife that the story he was asking her to recount was untrue. I would hold that Hogan should have been allowed to prevent his wife from testifying that Hogan acknowledged to her that the alibi story was a lie and that he asked her to tell this lie to police.
¶24 In Proposition VIII, Hogan argues that because his original jury rejected the
¶ 25 The majority’s analysis is based upon Poland v. Arizona,
¶ 26 I begin by noting that this Court did not immediately adopt the narrow understanding of Double Jeopardy represented by Poland. In fact, this Court maintained a broader approach to capital-stage Double Jeopardy — and an approach directly contrary to Poland — for nine and one-half years after the Supreme Court’s 1986 decision in Poland. In our 1992 decision in Crawford v. State,
¶ 27 This Court concluded in Crawford:
Having found that the evidence does not support the sole aggravating circumstance found by the jury, we have no alternative but to REMAND THE CASE FOR A NEW TRIAL ON SENTENCING.... Since the remand for resentencing is due to insufficiency of the evidence to support the aggravating circumstance, the sentencing options at resentencing are limited to imprisonment for life or life without parole.59
We did not consider or discuss whether other aggravating circumstances could have applied to the murder in Crawford. Hence we did not take the approach outlined by the Supreme Court in Poland.
¶ 28 This Court continued to take the approach of Crawford up through our 1995 decisions in Perry v. State
¶ 29 Consequently, over nine and one-half years after the Supreme Court’s decision in Poland, this Court was still taking the position that if the evidence in the record was insufficient to support the aggravating circumstance(s) found by the jury in a particular ease, the defendant had been effectively “acquitted” of the death penalty; and the State would not be allowed to pursue it again in a resentencing.
¶30 This approach changed dramatically with this Court’s 1996 decision in Salazar v. State.
¶ 31 I maintain, however, that the United States Supreme Court, through the still-unfolding Apprendi/Ring Revolution, has rejected the doctrinal basis for its decisiоn in Poland. The Poland decision was inconsistent with the Supreme Court’s preceding and landmark decision in Bullington v. Missouri,
¶ 32 In Ring v. Arizona,
¶ 33 Thus in Ring the Supreme Court inaugurated its current approach to understanding aggravating circumstances as the “functional equivalent” of “elements of a greater offense,” where the lesser offense is simply first-degree murder or “murder sim-pliciter,” for which the death penalty is not an authorized punishment, and the greater offense is “murder plus one or more aggravating circumstances,” for which the death penalty is an authorized punishment.
¶ 34 This brings us to Sattazahn v. Pennsylvania,
¶35 “A closer look at the various Satta-zahn opinions, however, reveals that at least six members of the current Supreme Court fundamentally disagree with the doctrinal basis for Poland and strongly suggests that these six justices would overturn Poland if presented with the same issue.”
¶36 Section III begins by noting that “[wjhen Bullington, Rumsey, and Poland were decided, capital-sentencing proceedings were understood to be just that: sentencing proceedings.”
¶ 37 Section III emphasizes however, that “recent developments,” namely, Apprendi and Ring, “have illuminated this part of our jurisprudence.”
We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and what constitutes an “offence” for purposes of the Fifth Amendment’s Double Jeopardy Clause ... In the post-Ring world, the Double Jeopardy Clause can, and must, apply to some capital-sentencing proceedings consistent with the text of the Fifth Amendment.92
And Section III clearly concludes that a jury’s findings on aggravating circumstances are like minitrials on separate offenses, where the guilt-stage verdict is for the lesser offense of “murder simpliciter” and the second stage involves a trial on the greater offense of “murder plus one or more aggravating circumstances.”
¶ 38 The Sattazahn dissenters would have gone even further, since they maintain that even the entry of a statutorily-mandated life sentence, when a jury cannot reach a verdict, should prevent the State from pursuing the death penalty in a retrial.
¶39 Therefore, a careful review of the various opinions in Sattazahn reveals that a strong majority of the Court’s current members have rejected the view of capital sentencing upon which Poland is based. As today’s majority emphasizes, Poland dismissed the claim that a capital-sentencing jury’s failure to find a particular aggravating circumstance “constitutes an ‘acquittal’ of that circumstance for double jeopardy purposes.”
¶40 Yet as early as Bullington and as recently as Ring and Sattazahn, the Supreme Court has clearly announced that a capital sentencing is not merely a “sentencing proceeding.” Rather, in many critical constitutional respects, a capital sentencing is, in fact, a “minitrial” or separate factual determination regarding the aggravating circumstance(s) alleged by the State. In particular, a capital sentencing is a minitrial on the offense of murder-plus-one-or-more-aggravating-circumstanees, to which the protections of Double Jeopardy apply, just as they do in the context of the jury’s first-stage verdict.
¶ 41 It is my belief that the Supreme Court will overrule Poland when the issue of its enduring legitimacy is properly before the Court. It is also my belief that when a constitutional right as precious as the protection against Double Jeopardy is at issue, and when a man’s very life is on the line, we need not and should not wait until the proper test case winds its way to the Supreme Court
¶ 42 At a minimum, this Court should not reach out to reaffirm the questionable analysis of Poland in a case that does not necessarily require us to do so. In Brown v. Sanders,
¶ 43 In light of Sanders, however, it should be acknowledged that by alleging the continuing threat aggravator in Hogan’s retrial, over defense objection, the State was allowed to present evidence during the retrial’s sentencing phase that would not otherwise have been admissible — since the State’s evidence would otherwise have been limited to evidence supporting the “heinous, atrocious, or cruel” aggravating circumstance. Thus the State’s aggravating evidence should have been limited to evidence about the circumstances of Stanley’s murder.
¶ 44 Because the State was allowed to pursue the continuing threat aggravator, however, it was allowed to present evidence that Hogan had committed burglaries in the Oklahoma City and Moore area; that he shot out windows at a business from which he had been fired; that he threatened the family of a former business partner; and that he once molested an eleven-year-old neighbor girl. The majority opinion does not address any of this evidence or its significance. Yet none of this evidence could have been put before Hogan’s jury if the State had been prevented, under the constitutional protection against Double Jeopardy, from re-pursuing the continuing threat aggravator.
¶ 45 I recognize that both juries that were presented this evidence rejected the continuing threat aggravator. After reviewing the actual evidence regarding each of these incidents, though certainly not flattering to Hogan, I understand why the juries declined to find this aggravator. Consequently, I could be comfortable with a conclusion by this Court that even though the State should not have been allowed to pursue the continuing threat aggravating circumstance, this constitutional error turned out to be harmless under the specific circumstances of this case.
¶ 46 Today’s decision could have resolved Hogan’s Proposition VIII claim by deciding that any Double Jeopardy violation was rendered moot by the resentencing jury’s rejection of the continuing threat aggravator and/or by concluding that the admission of evidence in support of this aggravator was harmless beyond a reasonable doubt. I would prefer that today’s decision had taken such an approach, rather than relying on the constitutionally unstable foundation of Poland.
¶ 47 For the reasons articulated herein, I dissent from today’s decision.
LUMPKIN, V.P.J.: Concur in Results:
¶ 1 In concur in the affirmance of the judgment and sentence in this case. I write
¶ 2 Additionally, in Proposition XIII, Appellant’s mere listing of issues for this Court to consider is insufficient to invoke appellate review. I find Appellant has waived appellate review as he has not provided any argument or authority as to why this Court should reconsider it prior rulings on six different issues. See Rule 3.5C, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001). See also Romano v. State,
ORDER GRANTING REHEARING BUT DENYING RECALL OF THE MANDATE
¶ 1 Appellant filed a Petition for Rehearing and Motion to Recall the Mandate in the above-styled appeal on June 5, 2006. He requests reconsideration of this Court’s decision affirming his conviction for first-degree murder and sentence of death. See Hogan v. State,
¶2 “Petition for Rehearing shall not be filed as a matter of course, but only for two reasons:
1. Some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or
2. The decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.”
Rule 3.14, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006).
¶ 3 In seeMng rehearing, Appellant claims that this Court incorrectly decided the claims raised in Propositions I, II, III and VIII and the decision is in conflict with controlling authority. We disagree. The decision rendered in this case disposed of the issues raised relying upon appropriate authority and we deny rehearing on this basis.
¶4 Appellant also claims questions decisive of the case that were duly submitted were overlooked by the Court. The opinion does not address Appellant’s claim that trial counsel was ineffective for failing to challenge the jury instructions submitting first degree manslaughter as a lesser included offense or the prosecutor’s allegedly improper statements to the jury on intent to kill. Neither of these issues, however, is decisive and requires relief.
¶ 5 We held the jury instructions, when read as a whole, fairly and accurately stated the applicable law. Hogan v. State,
¶ 6 The Petition for Rehearing is GRANTED. The Motion to Recall the Mandate is, however, DENIED.
¶ 7 IT IS SO ORDERED.
¶ 8 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 28th day of June, 2006.
/s/ Charles S. Chapel, Dissents CHARLES S. CHAPEL, Presiding Judge
/s/ Gary L. Lumpkin GARY L. LUMPKIN, Vice Presiding Judge
/s/ Charles A. Johnson CHARLES A. JOHNSON, Judge
/s/ Arlene Johnson ARLENE JOHNSON, Judge
/s/ David Lewis DAVID LEWIS, Judge
. I must also note that I concur in the resolution of Proposition II only by reason of stare decisis.
. Hogan did not object to the jury instructions given during his retrial, nor did he offer an instruction of the sort he now asserts should have been given by the trial court. Hence he argues that the failure of the trial court, sua sponte, to instruct the jury on his theory of defense and the State's burden to disprove it was plain error.
. See Majority Opinion, p. 923 (citations omitted).
. Id.
. Id. at p. 924 (internal citations omitted).
. Id. at p. 924 (citation omitted). In support of this statement, the majority opinion cites our uniform jury instructions for other affirmative defenses, which are structured such that once sufficient evidence has been presented (by either party) to raise a particular affirmative defense, the trial court is required to instruct the jury on that defense and to instruct that the State is required to prove, beyond a reasonable doubt, the absence of that defense. See id. at p. 923 n. 10.
.
. Id. at 704,
.
. Id. at 920. The Lofton court noted that the defendant failed to object to the jury instructions in that case, "despite ample opportunity,” but concluded, nevertheless, that the federal district court committed "plain error” by failing to instruct the jury regarding her heat-of-passion defense and the Government’s duty to disprove it. Id. at 922.
.
. The court noted that in this kind of collateral attack on a state court judgment, the question is whether the challenged instruction " 'so infected the entire trial that the resulting conviction violates due process,’ not merely whether 'the in
. Id. at 1404. The Davis court questioned whether the trial court’s decision to instruct on heat-of-passion manslaughter was even warranted, under the facts of that case. See id. at 1406.
. Id. at 1406 (emphasis added). The instructions in Davis defined first-degree manslaughter as a homicide "perpetrated without a design to effect death.” The jury was instructed that in order to convict the defendant of heat-of-passion manslaughter, the passion "must have existed to such a degree as would naturally destroy the sway of reason and render the mind incapable of cool reflection, and thus exclude malice aforethought.” In addition, the jury was specifically instructed that "[mjalice and heat of passion cannot co-exist.” Id. at 1405.
. Id. at 1406-07. Thus the Davis court concluded that where heat of passion is not "squarely raised" as a defense and where the jury’s instructions define "malice” and "heat of passion” such that they cannot co-exist, "the jury need not be instructed specifically that the prosecution must prove the absence of heat of passion. ...” Id. at 1407.
.
. Id. at ¶ 18,
. Id. at ¶ 16,
[Y]ou are instructed that the State has the burden of proving beyond a reasonable doubt that the Defendant did not act in the heat of passion before you could convict him of First Degree Murder. If the State failed to prove beyond a reasonable doubt that the Defendant did not act in the heat of passion, then you cannot convict the Defendant of First Degree Murder, but must consider whether the Defendant is guilty of the lesser included offense of First Degree Manslaughter.
Id.
. Id. at ¶28,
. Id. at ¶ 26,
. Id. at ¶ 26,
. It should be noted, however, that the McCormick instructions were much less explicit than
.
. Not surprisingly, Hogan struggles to distinguish his case from Black, since the defendant in that appeal did not prevail. Hence Hogan emphasizes that the trial court did not use all of the appropriate uniform instructions in instructing his jury. Hogan is correct that the trial court should have used OUJI-CR2d 10-24 to instruct his jury regarding its consideration of first-degree murder in relation to the lesser offense of first-degree manslaughter. Instead, the court’s Instruction No. 13 combined various portions of uniform instructions 10-13, 10-24, and 4-66. And in Instruction No. 14, the court modified the former OUJI-CR2d 10-27, to specifically inform the jury that it was "not required to determine unanimously that the defendant [is] not guilty of the crime charged before you may consider a lesser included offense," consistent with this Court’s decision in Graham v. State,
On the other hand, the trial court did use the appropriate uniform instructions for defining first-degree murder and heat-of-passion manslaughter, as well as the all the key elements and terms within these offenses, namely, OUJI-CR2d 4-61, 4-62, 4-63, 4-95, 4-97, 4-98, 4-99, 4-100, and 4-101. Although Hogan argues that the order in which the instructions were presented was confusing, he cannot point to any specific issue upon which the instructions were inсomplete or inconsistent with the law in effect at the time. In fact, Hogan acknowledges that the issue about which he is actually appealing, i.e., the failure to instruct his jury regarding its consideration of heat-of-passion manslaughter as an affirmative defense to first-degree murder, was not then and is not now contained in any uniform instruction.
While I agree that it is almost always the better and more prudent approach to instruct according to our uniform instructions, I conclude that the trial court's instructions were not inconsistent with Oldahoma law in effect at the time, nor did they prejudice Hogan in this regard. The court’s modification of the uniform instructions had no impact upon Hogan’s actual challenge within Proposition I. Hence the majority's notation that the now-challenged instructions were "based largely on instructions [Hogan] proposed" and its subsequent invocation of the "invited error" doctrine both turn out to be entirely irrelevant. See Majority Opinion, pp. 923, 925. Properly understood, Hogan's Proposition I claim is indeed an exact parallel of the claim made in Black. We should use this opportunity to reconsider Black and resolve this important issue correctly.
. Although I did not join the Court's opinion in Black, I acknowledge that I did concur in result.
. Black,
. See id. at ¶ 47,
. Black also asserted that his jury should have been instructed that manslaughter should be considered "in tandem” with the murder charge. Id. at ¶ 41,
. Id. at ¶ 39,
. Id. at ¶ 40,
. See
. See
. See id. at ¶ 47,
. Id. at ¶ 47,
. See OUJI-CR2d 4-99 (all emphasis added). It should be noted that this language is exactly the same as the language used in the original version of this State’s uniform criminal juiy instructions, in 1981. See OUJI-CR2d 458 (Manslaughter in the First Degree — Passion Defined).
. As quoted supra by today’s majority opinion, the Black opinion asserted as follows:
Because heat of passion requires the defendant to act on the force of a strong emotion following adequate provocаtion that would naturally affect the ability to reason and render the mind incapable of cool reflection, i.e., not with a deliberate intent pre-formed, the Oklahoma definitions of malice and heat of passion show they cannot co-exist. Although the instructions in the instant case do not specifically state these mental states cannot co-exist as in Davis, the definitions employed to define the mental states of murder and heat of passion manslaughter sufficiently informed the jury that the differing mens rea elements were mutually exclusive.
Id. at ¶ 47,
. See OUJI-CR2d 4-99 (quoted supra in text).
. In footnote 13, today's majority opinion acknowledges that "[ajcting in the heat of passion need not overcome the killer's reason or destroy free exercise of choice.” Hence today’s majority opinion appears to agree that a defendant can properly be convicted of heat-of-passion manslaughter even though he had a deliberate intent to kill his victim. Thus the majority opinion appears also to agree that, despite the language of Oklahoma's manslaughter statute, lack of a "design to effect death” is not an element of heat-of-passion manslaughter under current Oklahoma law. This agreement would seem to end our debate, since it was the presence of this very element in heat-of-passion manslaughter that justified tire conclusions in Davis and McComick that the mental states for heat-of-passion manslaughter and first-degree murder were "mutually exclusive.”
In footnote 13, however, today's majority attempts to find a new way to distinguish the mental states required for these two crimes, by discovering a new element in malice-aforethought murder: a “requirement of deliberation.” In essence, footnote 13 attempts to extend the first-degree murder requirement of "deliberate intent" into an additional requirement that the defendant engage in an act of "deliberation” about whether to kill or not. In addition to referring to a "requirement of deliberation,” footnote 13 asserts that "[a] deliberate act is one that requires a cool mind that is capable of reflection.” While some might believe that the State should be required to prove some amount of reflective "deliberation” by a "cool mind” before a person can be convicted of first-degree murder, such a requirement has no basis in the current law of this State, either statutory or decisional; and footnote 13 proffers no authority for its new approach.
As our uniform jury instructions assert, the four elements of first-degree murder in Oklahoma are: 1) the death of a human, 2) which was unlawful, 3) caused by the defendant, and 4) caused with malice aforethought. See OUJI-CR2d 4-61; see also 21 O.S.2001, § 701.7 ("A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being.”). We then define "malice aforethought” as "a deliberate intention to take away the life of a human being.” See OUJI-CR2d 4-62; see also 21 O.S.2001, § 701.7 ("Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.”). Our uniform instructions note that this "deliberate intent to take a human life must be formed before the [homicidal] act," although "[n]o particular length of time is required for formation of this deliberate intent.” See OUJI-CR2d 4-62. And our uniform instructions specifically note that "[t]he intent may have been formed instantly before commission of the act.” Id. Yet the idea that deliberate intent can be formed "instantly before the commission of the act” is inconsistent with the suggestion that cool-minded "deliberation” is required.
Oklahoma law requires that the State establish that the defendant had a "deliberate intent" to kill his or her victim. Oklahoma law does not require (and never has required) that the defendant go through some kind of reflective decision-making process, i.e., "deliberation,” before killing the victim. In fact, such a requirement would seem to go beyond even the traditional concept of "premeditation” that this State (and this Court) has consciously declined to require when it comes to defining the elements of first-degree murder. We simply require that the killing be done deliberately, meaning, in essence, "on purpose.” Deliberation is not required.
. Hence I agree with this Court's jurisprudence that lack of a design to effect death is not an element of heat-of-passion manslaughter and with the decision by the drafters of our uniform instructions not to include such a lack of intent as an element of heat-of-passion manslaughter ... despite the statutory language of
. In Morgan v. State,
. 2001 OKCR5, ¶48,
. Id. at ¶ 48 n. 17,
. See Majority Opinion, p. 925 n. 14 (agreeing with Black on this issue).
. The analysis and instruction I am offering would apply only to a defendant who actually relies upon heat-of-passion manslaughter as his defense, i.e., to a defendant who does not contest the fact that he killed the victim, but who maintains that the killing constituted first-degree manslaughter. While such a defendant could also logically assert that the killing was in self-defense (if there - was some evidence to support this claim), a defendant who does not acknowledge responsibility for the killing would not be entitled to an instruction on this defense — though he or she could be entitled to an instruction on manslaughter as a lesser offense.
. "Duress” is limited in this context to a reasonable belief that one is in "imminent danger of death or great bodily harm from another.” See OUJI-CR2d 8-20.
. Such a defense could also be described as an "imperfect defense” or "mitigating defense.” See Morgan,
. In a case involving multiple victims, the name of the victim (or victims) about which some evidence supported the heat-of-passion defense could be inserted for clarification purposes.
. In cases where this instruction was given, the jury would not be instructed under the lesser included offense instructions, namely, OUJI-CR2d 10-23 and 10-24.
. Although the decisions of the Tenth Circuit Court of Appeals are not binding upon this Court, they are instructive and well-reasoned on this issue.
. See OUJI-CR2d 9-15.
. See Majority Opinion, p. 926 (citation omitted).
. See OUJI-CR2d 9-15 (defining "exculpatory statement” as "a statement by the defendant that tends to clear a defendant from alleged guilt, ... which, if true, would entitle him/her to an acquittal”).
. See Hogan v. Gibson,
.See 12 O.S.2001, § 2504(B) ("An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.”).
.
. Id. at 156-57,
.
. Id. at ¶71,
. Id. at ¶ 85,
.
.
.
. Id. at ¶ 64,
. Id. at ¶ 53,
.
. Poland was decided on May 5, 1986; Cheney was decided on December 8, 1995.
. On the other hand, we have consistently allowed the State to seek the death penalty upon resentencing when a death sentence is reversed for capital-stage errors not involving insufficient evidence.
. 1996 OKCR25,
. Id. at ¶ 12,
. Id. at ¶¶ 14-18,
. This Court wrote:
We interpret Poland to hold that if either the trial court or a reviewing court finds that, after removal of any infirm factors, the residual evidence offered by the state at the sentencing proceeding will not support a death sentence, then the defendant has been acquitted of the death penalty and jeopardy precludes any further sentencing proceedings seeking a death verdict. However, if there is evidence which supports other statutory aggravating circumstances, the case may he remanded and a death verdict may be sought....
Salazar,
.
. See Salazar v. State,
.
. Id. at 446,
.
.
. Ring,
. The decision in Ring was 7-2, with six justices joining the majority opinion and Justice Breyer concurring in the judgment. Only Justices O’Connor and Rehnquist dissented.
.
. Id. at 109,
. Id. at 116,
. Hence a hung jury in either the guilt stage or the sentencing stage of a trial generally results in a "do over” for the State.
. I am not counting Justices O'Connor and Rehnquist in this tally; nor am I making any prediction about how the Court’s newest justices will vote.
. Scalia's opinion was joined, m toto, by Justices Rehnquist and Thomas. Justices O’Connor and Kennedy joined all but Part III of the opinion. Justice Ginsburg wrote a dissenting opinion, joined by Justices Stevens, Souter, and Breyer.
.
.
. Id. (emphasis in original)
. Id. at 110-11,
. Id. at 111,
. Section III notes that in Ring, the Court held “that the Sixth Amendment requires that a jury, and not a judge, find the existence of any aggravating circumstances, and that they be found, not by a mere preponderance of the evidence, but beyond a reasonable doubt." Id. (citing Ring).
. Id. at 111-12,
. Id. at 112,
.Id. It could be argued that Oklahoma’s current, capital-stage verdict forms — which instruct juries to simply check any aggravating circumstance(s) upon which the jurors unanimously agree — do not allow us to determine whether a jury’s failure to find a particular aggravator was a unanimous rejection of that aggravator or not. Yet this Court has consistently described verdicts where an aggravator is unchecked as a "rejection” of the unchecked aggravator(s). See, e.g., Davis v. State,
. Id. at 118,
. Id. at 126 n. 6,
. Poland,
. Id. at 155-56,
. And a capital defendant's guilt-stage murder conviction constitutes a “lesser included offense” in relation to the capital-stage determination regarding the "greater offense” of murder-plus-one-or-more-aggravators.
. - U.S. -,
. Id. at 892 (“An invalidated sentencing factor ... will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” (emphasis in original) (footnote omitted)). The Sanders case sought to change the different appellate rules governing "weighing States,” such as Oklahoma, in which the jury is limited in its decision about whether to impose the death penalty to the specific aggravating circumstances (or "eligibility factors”) found as part of the jury’s eligibility determination, and non-weighing states, in which the jury’s ultimate determination about whether to impose the death penalty is not limited in this way. Id. at 889-91.