Johnson v. State

c. proceedings ed for further to be consistent today’s pronouncement. with THE CITY COULD HAVE BECAUSE (BUT AT DID NISI PRIUS RAISED ¶ WATT, C.J., OPALA, V.C.J., SO) OF NOTICE OF NOT DO LACK HODGES, KAUGER, BOUDREAU and THE MALFUNCTIONING SPRIN- EDMONDSON, JJ., concur. HEAD, REFRAIN KLER WE FROM ¶ LAVENDER, HARGRAVE and THIS ISSUE REVIEWING WINCHESTER, JJ., dissent. argument city’s 22 The final is that malfunctioning sprin notice of the lacked Lack of notice is an on-the-merits kler head. against the claim. It be raised

defense

by pleadings, by argument presented at a

hearing by tendering appropriate eviden-

tiary pled neither nor material. Here was called to the trial court’s attention as dis 2004 OK CR 25 puted during the issue on the merits court’s JOHNSON, Appellant, Mark David summary process adjudication. Because issue, city’s legislative-intent unlike the argument, could and should have been Oklahoma, Appellee. STATE of court, decline to raised before the we No. D-2003-351. depart permit its our usual course review here.52 Appeals Court of Criminal of Oklahoma.

IV.

SUMMARY city’s argument legisla- 23 The —that enlargement

ture’s 1984 of the GTCA’s 155(13) inspection immunity to include all

property inspected by qua governmen-

tal units also altered the common-law stan- premises liability applicable then

dards Abrogation

these cases —is hollow. explicit, unambigu-

common law must be immunity government’s

ous and the con- language.

ferred doubt-free Our review statutory

of the tendered text reveals no duty indicia of

divinable intent to reduce the imposed upon municipal

of care landowners

by the common law. Neither do we find

validity in city’s contention that a raised adjacent

sprinkler head to a sidewalk consti-

tutes, law, slight as a matter of or trivial city liability

defect for which the no bears injured part’s

one failure to recede. previously granted upon On certiorari city’s petition, Appeals’ Court Civil vacated; summary the trial court’s

judgment is reversed and the cause remand- supra denying prius.

52. See note 9 for review issues not raised nisi Bowen, Lyman, G.Lynn R.

James C. Silas Burch, Law, Attorneys Capital Trial Divi- sion, Indigent System, Defense Oklahoma OK, attorneys Sapulpa, for defendant at trial. Migliorino, Charles J. Assistant District OK, Attorney, Tishomingo, Thrift Paule’ Haggerty, Attorney, Assistant District Ma- dill, OK, attorneys for the state at trial. Burch, III, Lynn Capital G. Defense Coun- sel, Indigent System, Defense Oklahoma Norman, OK, attorney ap- appellant peal. Edmondson, Attorney

W.A. Drew General Oklahoma, Branham, Seth S. Assistant General, OK, Attorney City, Oklahoma attor- neys appellee appeal.

OPINION CHAPEL, Judge. Mark On David Johnson Ricky Masquat)

(along with codefendant charged Degree in viola- with First Murder O.S.1991, § County tion of 21 701.1 in Love No. A Bill District Court Case CRF-91-46. alleging aggrava- of Particulars was filed two 1) Masquat poured gasoline that the murder was ting circumstances: on him and set 2) heinous, cruel and especially atrocious and him on fire. Webb was discovered alive the probability that would commit morning, standing next badly naked and that would criminal acts of violence constitute approximate- burned the road. died Webb continuing Finding both societal threat.1 ly seventeen hours after the attack.8 circumstances, aggravating convict- ¶ V, Propositions In5 I and Johnson and recommended death. The ed Johnson claims that prosecutor the trial Scaggs, judge, H. Honorable John District impermissibly injected possibility of com- ap- sentenced Johnson to death. Johnson jury’s mutation into pealed. appeal, for the consider- On Johnson’s conviction and 6, 1997, sentence was affirmed.2 On October ation. He is correct and entitled to a new Supreme States Court denied cer- United sentencing hearing. 19, 1998, tiorari.3 March de- On Court post-conviction applica-

nied Johnson’s relief ¶ 6 At Johnson called two De tion.4 partment employees, of Correction Emma ¶ McCoy, Watts and regard Sharon February peti- 2 On Johnson ing exemplary behavior while incarcerat federal relief in the tioned for habeas United ed. Johnson’s if States District Court for the Eastern District counsel asked both either denied,5 petition anyone being of Oklahoma. After the were aware of released who appealed to Johnson the Tenth Circuit Court had been sentenced to life Appeals, granted petition which possibility without the Both re and ordered that Johnson be resentenced.6 sponded object. “No.” The did not State Thereafter, prosecutor cross-examined 1-4, 2002, April 3 On Johnson was resen- McCoy with several about commu by jury teneed and sentenced to death. The meaning. cumulatively, tation and its Taken aggravating found one circumstance: McCoy’s responses possibility indicated the heinous, especially that the murder was atro- death, that inmate sentenced to life im In cious or cruel.7 accordance with the recommendation, jury’s prisonment parole, without the Honorable John Scaggs again imprisonment might H. or life sentenced Johnson death. have their sen appeals this Johnson sentence. tence commuted and thus released from be prison. object Johnson did not to this testim evening 4 On the Mark examination, ony.9 On redirect Johnson Johnson, Ricky Masquat Billy Webb left again McCoy anyone asked if she knew of apartment complex the Presidential Gardens serving life without who had been go “party.” in Norman to out and The men prison. McCoy responded released from 1-35, drove south on exited the interstate closing argument, argued “No.” the State Marietta, County Love near and drove to a commuted, that Johnson’s sentence could be spot According rural on Putnam Road. Webb, truck, Again, they got thus he could be “let loose.” out of the object. then hit Webb the head with a baseball bat Johnson failed to O.S.1991, 701.12(4)(7). O.S.2001, 701.12(4). jury rejected § 1. 21 7. 21 aggravating alleging proba- circumstance State, 2. Johnson v. 1996 OK CR bility that Johnson would commit criminal acts 309, 320. violence that would constitute a society. threat to Oklahoma, 3. Johnson v. (1997). summary 8. This is a of facts detailed in Johnson (March 19, 4. Johnson v. No. PCD-97-339 1996 OK CR 928 P.2d 309. 1998) unpublished opinion. attorneys 9. Johnson's later stated did Gibson, 5. Johnson v. Case No. CIV-98-331-S not to the "commutation” be- (E.D.Okla. 1999). Dec. (Sen- "highlight” cause did not want to it. Gibson, (10 5-9). tencing transcript, pp. 6. Johnson v. 254 F.3d 1155 th Cir. 2001). activities, I Parole Board’s After don and to deliberate. jury retired 7 The estimation, my that’s the minutes, would —it they sent a note to and 15 hour you go I can’t into all give I can best asking for a definition appropriate, kinds of detail because it’s judge returned The trial “commutation.” unlikely from probability of it is but the told them “commu- them to the box as a Trial experience that I’ve had “change punishment tation” was Judge with sentences that I’ve done foreman re- greater to a lesser.” that I’ve seen and information sentences their not answer plied that this did Yes, legally possible, it’s le- have. commutation available and asked “will unlikely. gally probable sentences we’re decid- one or all three either jury then resumed deliberations. and the 8 The counsel for Johnson ing on?” Both they the Court minutes later informed objected Seven and approached the bench

State they a verdict. that had reached judge over- any further definition. jury: objections and informed the ruled the repeatedly has held 9 This Court justice system ulti- criminal In the entire evidence, argument, or instructions re that grant mately Executive- could a com- cannot be garding Executive commutation being Indeed, a sentence —“executive” jury.10 mutation of presented to the this Court by In order for that to occur recently principle the Governor. this caution reaffirmed by hearing “[a]ny attempted before the Pardon ing would take a that instruction judicial [regarding or Board and a recommendation branch commutation and Parole inaccuracy. complete investigation by parole], is doomed to There full and after a type ques simply no answer to this clear Parole Board to the Gover- the Pardon and tion, reason, none be and for that they recommend a sentence be nor that attempted.”11. about commuta Comments if Even that recommendation commuted. inject prohibited they speculation tion are obliged grant occurs the is not Governor sentencing, to death sentences due into lead question a commutation of sentence. The release, un juror fear of defendants’ and legally you possible Is it for have asked: jury’s responsibility sense of dermine you may any the three sentences that sentencing decision.12 its consider commutation the Governor -for recommendation after favorable Despite unequivocal prohibition, 10 this Yes, possi- Pardon Parole Board? it’s invited and the State contends Johnson really, proba- question ble. But the by “opening the door” to waived the error question to that is: I McCoy ble? And the answer if by asking and Watts commutation My my best —from they anyone serving don’t know. knowl- a life without knew Oklahoma, sentencing my edge from sentence who had been released. opened.13 that cannot be knowledge of the Executive and the Par- This is door State, 1, 731, sup 10. Forty years jurisprudence OK CR 84 P.3d of Oklahoma 11. Harris v. State, Mayes port given v. 1994 OK CR the statement. 757. The instruction in this case was a 1288, 1318, 44, fairly summary 887 P.2d accurate commutation of current 1260, 1194, 131 L.Ed.2d 140 sentencing options process the three hearing (prohibiting juiy information presented instruction did to Johnson's commutation); regarding State, v. parole or Tucker requirement that the recommendation omit 458, 461(error CR 499 P.2d 1972 OK and Parole board to the Governor Pardon to instruct or comment to course, by majority had to be vote. Of these State, commutation); Stokes v. 1972 OK CR policies principles changed any could be at (same); 501 P.2d Coxv. 1971 OK time. (instructions regard CR 491 P.2d ing pardon parole policies commutation LeCesne, Tipping the Scales toward 12. Blaine improper prejudicial); are French v. Instmcting Capital Death: Jurors on the Possibili- (death OK sentence CR P.2d 909 Clemency; ty U.Cin.L.Rev. Executive responded reversed where trial court (1997). regarding parole possibilities for a de imprisonment); sentenced to life fendant Califor Harris, 757(no Ramos, regard- at information 13. nia 3446, 3458-59, (1983)(States ing parole be or commutation should (refusing jury); Mayes, P.2d at to allow can decide whether instructions on Governor's regarding parole power presented jury.) or commutation commutation information can

H03 evidence, argument and in- at trial and did not allow Commutation Johnson to do so They all error.14 also struction were when he tried. in a denial prejudicial resulted recently 13 This Court reiterated its re- sentencing hearing. a fair and reliable peated holding that when “a defendant so requesting 11 Before the definition of requests, judge either he or the trial must commutation, had deliberated for prospective jurors ask whether would minutes, approximately one hour and fifteen automatically impose a death.”16 (hei- finding aggravating one circumstance simply There is specific no substitute cruel) nous, rejecting atrocious and question. General voir dire the death threat). (continuing Despite having other penalty does not suffice.17 Johnson’s thwart- presumably so and done mind of Johnson’s attempt question ed to ask this inex- evidence, mitigation turned to the denied,18 plicably “constitutionally unac- “commutation” and asked the trial ceptable.” This was also error.

judge for instruction. The trial in- ¶ 14 Proposition We also address IV to aid formed the that Johnson’s sentence resentencing. Johnson claims could be commuted under of their three Proposition IV erred sentencing options, confirming their concern limiting expert’s testimony. might that he be released back into the Barry Kinsey called rebut the later, community. A mere seven minutes aggravator present threat mitigating evi- jury informed the bailiff had Kinsey presented dence. Dr. expert testimo- verdict, Clearly, reached a verdict. their a ny regarding risk assessment and the corre- death, sentence of awas direct result of the sponding processes of “institutionalization” evidence, argument commutation and in- “aging out.” He elaborated: institution- result, struction. As a this Court must re- prefers alization is where an individual incar- resentencing.15 verse and remand Aging ceration to freedom. out is where the III, Proposition 12 In Johnson probability committing activity of criminal right claims that he was his denied to ask However, age. Kinsey decreases with Dr. jurors automatically whether would im not allowed to to Johnson’s indi- pose penalty. requested the death Johnson vidualized risk assessment. permission pre-trial to ask this in a Although judge granted motion. the trial his Johnson tried to elicit this testi request, however, specific question mony, he did not ask that judge refused to sentencing self-explanatory Application

because 15. Johnson also filed an for Eviden- regarding parole tiary Hearing and additional information and Notice of Extra-Record Evi- Application commutation would serve to drown defendants downstream). dence this claim. The Moreover, recently This Court also moot due to the relief ordered. held only jury improper regard- Extra-Record Evidence was an at- information receive tempt by impeach ing parole during Johnson to is when the the verdict with asks delibera- O.S.2001, inappropriate tions if an Juror affidavit. "offender who is sentenced to life imprisonment (prohibiting impeachment possibility parole of verdict with without the deliberations). during parole eligible[.] internal matters ... trial [ThenJ the court should either refer the tions, back to the instruc- ..., punishment op- tell the 16. Hanson v. 2003 OK CR ..., explanatory, tions are self or advise the 47. punishment options that the are to understood plain Hanson; in their 47; literal sense and that (rejecting 17. P.3d State's eligible parole defendant will not be if sen- argument that voir dire taken as whole satisfied imprisonment possibili- tenced to life without the right imposition" defendant’s to ask “automatic ty parole.” Littlejohn 2004 OK CR question). 85 P.3d 287. 18. Id. indicated, previously 14.As Johnson did not ob- Id.; rd, ject prosecu- to the testimonial evidence or the 2d OUJI-CR aé modified argument waiving plain (reiterating requested by tor’s all but error. He that when a defendant judge’s did to the trial commutation either the in- defendant or trial court must ask the imposition” question). structions. "automatic JOHNSON, specially concur. P.J.: under Daven- it, prohibition finding a allow his later reasserted port v. State.20 LUMPKIN, LILE, J.: dissent. V.P.J. Kinsey’s report and Dr. request to admit The trial evidence. into conclusions STRUBHAR, J.: concur. deny request but immediately did P.J., JOHNSON, Concurring. Specially previ- its willing to reconsider rather seemed the evidence. Before ruling and allow ous changed the law legislature 1 When the request, the new ruling on possi- without the imprisonment life to allow if he was certain counsel asked juries give an bility parole, it did so to admitted because report that he wanted the is be- two extremes —that option between released that if Johnson was state it did A life sentence with and life. tween death likely drugs, he would alcohol or if he abused be considered possibility response, crimes. additional commit very very imprisonment for a term of short request and his the exhibit Johnson withdrew option seems to crime. This third serious doing, he abandoned In so admission. for its But, if a believes or lead well. work for re- waived this issue request and imprisonment without the that life to believe Nevertheless, key must be issue view.21 in fact not mean possibility does courts guidance to trial provide resolved for the person would be incarcerated that a testimony. similar presented with life, option is that third of his or her rest likely meaningless. juryA is more rendered exp qualified Any properly rather than life penalty for the death to vote with stan testifying accordance ert22 never to ensure the defendant admissibility governing the dards “with- prison if the believes gets out of opinion on the ulti testimony may offer not mean parole” does out the the trier of fact.23 if it would assist mate issue Accordingly, jurors not be anything. should by Davenport imposed only limitation The workings of the Par- the inner advised about testify opinion to an expert that an cannot power the of the and Parole Board or don or untruthful.24 is truthful that a witness any to form of clemen- Governor as relates request, and Had not withdrawn cy- Kinsey’s testimony was presuming that Dr. mind, 2 I address the issue With this admissible,25 been allowed to have he should case who started the about as “risk testify to the results Johnson’s clemency. relating As noted to credits sessment.” above, clemency have been should never was, judge the and when it mentioned Decision the that that was be- have admonished yond jury’s consideration. Such an ad- is RE- Judgment and Sentence 17 The given sponte should be sua for resentenc- monishment and REMANDED VERSED lawyers objection. there is no While when ing. Davenport, 806 P.2d at 659. 24. 806 P.2d 655. 20. 1991 OK CR CR 782 P.2d 21. Kiser v. OK 52; Hanson, (remanded part at to 25. P.3d (this position aban- Court will not consider to if scien- "risk assessment” allow appeal). doned at trial reliable). tifically Hanson, (scientifically at 52 fn. 36 22. P.3d admissible). expert testimony reliable being to rebut the In addition to admissible circumstance, aggravating Dr. threat 704; Hanson, O.S.2001, 23. 12 Kinsey’s opinion regarding "risk as- pris testimony regarding (expert a defendant’s mitigating evidence. is also admissible sessment” mitigation to rebut behavior admissible as 901; (defining mitigating Fitzgerald, 61 P.3d at circumstance); aggravating continuing threat any defendant’s record as evidence of Fitzgerald OK CR P.3d possibly convince or character that death). give a less than (2003) (defendant entitled to L.Ed.2d 495 circumstances). aggravating to rebut

HQ5 they are the first who should when judge The trial diligently tried properly consider a to be out of instruct the about matters of commuta- objectionable, line or also tion, has but this likely instruction improperly responsibility, objection, even without jury’s influenced the decision to render a penalty monitor a death case to see that death sentence. This be inferred from prejudicial error does not occur. I believe a the short amount of time it took the sponte should sua control this line return a penalty of death after the trial objectionable questioning. judge’s statements about commutation and clemency put were on the record. The trial 3 The dissent claims the error in this judge’s statements process about the defense, case was invited but that is accurate but should not under circum- way not the I provided. read the record stances have been prosecutor bring was the first up prosecutors and defense counsel were sea- matter of during earned credits his cross- attorneys soned put should never have Department examination of of Corrections the trial court (Tr.III 556-557) position into the employee Emma did. Watts. On redirect, attorney the defense asked Watts ¶ 7 I firmly continue to juries believe that person whether a serving life without should not be told of the workings inner got “No, prison; responded out of you Watts Board, the Pardon and power Parole (Tr.III 560). don’t.” sentences, Governor to commute or other ¶ 4 I interpret this line questioning re- administrative executive might matters which credits, lating to ques- earned which lead into affect a sentence of life without possibili- concerning clemency, tions beginning with ty This is not information a prosecutor’s cross-examination of Watts. Approved needs. uniform response, defense properly point- counsel give jurors the information need to set persons ed out sentenced to life without the punishment and those instructions should be could earn credits but followed. get jail. did not out of ¶ 8 Based foregoing, specially ¶ Following testimony, Watts’ the scenar- concur in majority. counsel, io worsened. Defense on direct ex- amination, asked the next witness Sharon LUMPKIN, J. dissents. McCoy, a man “[i]f or woman serving is a ¶ 11 continue to adhere to the rationale we parole sentence of life without get don’t in Mayes v. enunciated 887 P.2d 1288 they?” out do responded, She “No.” The (Okl.Cr.1994) long-standing policy of our of cross-examination of this witness was the not instructing jury the a criminal case on coup grace. prosecutor de McCoy The asked the exercise of clemency. executive I do so if she was familiar with “the term commuta- in that I view it aas shield to the defendant tion,” was, asked what commutation who had objective to ensure consideration of the sen- power recommendation, the to make that and tencing options presented jury. How- prisoners what eligible for commuta- ever, when that sought shield is to be used as tion. This of questioning clearly line re- sword, invited, a response is the rule is vealed to the hap- commutation can prosecution waived and the should be pen able to person even when a is sentenced to life respond fully to ensure the is informed imprisonment possibility without the pa- of as to the (Tr.III regarding sentencing truth the 568-572) Thus, role. prosecu- the options presented. For that reason I must questions, tor’s basically the was told a dissent to the decision to reverse and remand person gets who imprisonment life without again re-sentencing. this case once possibility the parole of can still be released prison. from ¶ motions, pre-trial In the defense moved ¶ case, 6 In this attorneys neither the nor to allow sentencing option evidence of the acted appropriately it possibility when life without parole. allowed the to relating hear evidence judge put to them on notice that evidence credits, parole, matters of commutation. could receiving lead to the life, ineligible is at the defendant sentence powers of the the constitutional regarding state law. During parole under sentences. commute Governor Attor- Assistant District course 166, 120 at 2120. at 530 U.S. Watts, Manager Emma Unit ney inquired of ¶ Ramos, 463 U.S. 6 In California block, re- on cross-examination Appellant’s (1983), 77 L.Ed.2d 103 S.Ct. and how Appellant earned garding credits specific jury Supreme Court held The defense be used. those credits clemency were con- on executive question- line of object this entire failed stitutional, equally free to though states were regarding commuta- Nothing was asked ing. jury. from the withhold such information Then, upon parole. direct without tion or life wrote: Justice O’Connor McCoy, Appellant’s Case examination of Ms. informing emphasize that Finally, we Unit, brought the defense Manager on H a power to commute jury of the Governor’s following question final as their forward pa- possibility of life without serving “Q: If man or woman is exchange; a merely of a was an accurate statement role they don’t without of life a sentence To de- potential sentencing alternative. (2002 out, A: Trial Tr. they? No.” get do as ‘life scribe the sentence 567). of Ms. During the cross-examination simply inac- possibility parole’ is without credits, discussing the Assis- McCoy, after law, when, state the Gover- curate under Attorney then asked her if she tant District authority commute that possesses nor “commutation” the term was familiar with that includes sentence to lesser sentence responded that since She and what it meant. Briggs In- makes the recommenda- Board the Parole misconception struction thus corrects tion, managers are not involved with case infor- supplies the with accurate objection again, no was anymore. Once selecting for its deliberation mation questioning. line of to this entire made appropriate sentence. “if the defense asked 3 Once 1009, 103 S.Ct. at 3457-3458. 463 U.S. serving a sentence of life a man or woman .out, they?” get don’t do without go as not advocate that Oklahoma 7 do any failing to adopt jury instruction far as California commutation, evi- by the State jury of the commutation informs the before the There issue was dence and every Only case. when the de- process was, error, if there it was invited. was no explanation of con- invites the full fense clemency process ex- stitutional Carolina, v. South 4 Simmons plained. to the facts this case. applicable Mayes: 8 As we stated Simmons, ineligible for the defendant prohibited generally The reason a court law based Carolina parole under South mentioning parole lies not However, the court re- criminal record. jurors ignorant of its keep incentive to request to inform the jected the defendant’s existence, but rather because is a discre- Instead, of the state law. jury aspect of that tionary procedure exercised the execu- jury the that were the court instructed a pi*ovides which condition tive branch pardon parole eligibility not to consider and subsequent to the conviction sentence life that the terms in party incarcerated after the has been to in were be understood death sentence it is penitentiary. In other words the state ordinary meaning. plain their a in the form of commu- offered as reward ¶ Angelone, v. 5 In Ramdass of the inmate good tation for behavior (2000), 125 147 L.Ed.2d Jus- 120 S.Ct. a convicted. To have after he has been majority, Kennedy, writing for the stat- tice long any particular how tell ed: his conviction is inmate will serve after It into the future. asking him to see created a workable rule. The

Simmons and unwise to required would be both unrealistic is parole-ineligibility instruction already the overworked when, the burden only assuming the fixes

1107 “[wjhenever directed, responsibility judges the judges of our state with OUJI-CR does not being soothsayers. subject contain an instruction on a of on which the court determines that the (internal omitted). citations P.2d at 1318 887 instructed, should be the instruction and the basis This is still true subject brief, simple, that impartial should be to forbid the ad- we should continue which and free from argument.” Judge Skaggs mission of evidence How- followed that to pro- directive the letter and ever, admitted, when that is without evidence required guidance jury. vided the to the Un- objection fully then should be in- the case, special der the this facts of there is no aspects system, as all of the in- formed error procedure either the or the instruc- cluding provisions regard- the constitutional tions. ing commutation. ¶ 13 I also find error the Court’s discus- assertion, Contrary majority’s to the scope sion of the testimony by has evidence of this Court never held this expert testimony. recitation of the hold- admitted, if cannot type invited. find State, (Okl. ing Davenport v. 806 P.2d 655 citing interest that 65 Cr.1991), disingenuous. is somewhat While (1997)1 majority the U.Cin.L.Rev.1051 fails particular correct, in that it is case the issue cite the last of the article which was the of a truthfulness child witness. “[ejourts states, employ per pro se However, scope as to the for an evidence, against any argument, or hibition witness, expert stated: Court clemency governor’s pow instruction the Therefore, accepts this Court the accom- unless the chooses to ers defendant raise syndrome modation as reliable scientific added). (emphasis issue.” the Id. at 1091 It provided syndrome that such is universally recognized principle (1) testified to that expert subject that not invited error and the law error (2) cross-examination, party respond. opposing right has the See testimony, testifies as to the such basis (Okl.Cr. State, Hooper v. 947 P.2d (the general acceptance the scientific 1997), community knowledge syn- and his 2353, 141 (1998), State, Staggs L.Ed.2d v. drome), testifies (Okl.Cr.1986), P.2d Goodrich only as to background and nature of State, (Okl.Cr.1976). 219, 222 v. 553 P.2d syndrome opin- and does state an happened is what in this case. That particular ion as to or not whether Therefore, injected syndrome Appellant child suffers from the but leaves issue commutation into properly on the court instructed P.2d at this case is not

issue. instruction ¶ 14 guidelines regarding These the meth grounds for reversal remand for resen- odology scope expert testimony com tencing. guidelines. port with and follow ABA See 7-6.6, brings This the content of Standard Bar us to American Association Judge given by Skaggs. A Criminal Health re- Justice Mental Standards. of both instructions reveal that each was See also White v. view (Okl.Cr.1998) (Lumpkin, Specially a true statement of the law the State of J: Con cur); and an definition of terms P.2d Oklahoma accurate Hooks 1278-79 (OM.Cr.1993), 1100, 114 in clear and An language. concise instruc- U.S. 1870, 128 (1994); on in tion commutation is not contained The S.Ct. L.Ed.2d Moore v. (OM.Cr.), Jury Oklahoma Uniform Instructions —Crim- cert. de (2d) (OUJI-CR). nied, Pursuant to the inal order (1990). April 4,1996, adopt- paraphrase this To

entered Court on L.Ed.2d 182 these edition, cases, ing expert opinions amendments to the second barred LeCesne, bility Clemency Tipping 1. Blaine the Scales Toward of Executive Instructing Capital Death: Jurors on the Possi- skill, they merely qualified knowledge, tell the an when admission training, role of or experience, result to reach. education what (em to a the factors relevant merely to describe form of an otherwise” particular added). condition. alleged specif defendant’s phasis As the Evidence Code in evidence apply facts will then ically out, experts points are not condi- determine if the those factors al but to the evidence collateral proven. tion/syndrome has been However, ready in the presented. appears psychology re sociology areas of jury rejected the ease the this true, with verse is and it is direct conflict aggravator and evi continuing threat 2702 of Evidence Code and Standard Kinsey would Dr. have dence gone that issue. I do not find 7-6.6 of the ABA Criminal Mental only have Justice judge’s on rulings based It I Health Standards. that reason error any perceived by Davenport Kinsey’s error admissibility Dr. go forward with the Granted, failure of the defense testimony place. the first due rulings those harmless witness based the limited it is difficult to determine record failing to find the due to the scope have what would However, aggravator. continue it will threat record, Regardless, I been. based challenge judges, ongoing for trial to be error, judgment find no and would affirm the Daubert2, Kumho gatekeepers under as the and sentence. Tire3, Taylor4 to validate relevant ex science ad perts and reliable to determine Judge I am LILE authorized to state missibility capital cases. of evidence joins in this dissent. appears the sole point this out for reason why has focus as to there been loss

expert testimony is allowed in the trial of Evi

case. Section 2702 Oklahoma scientific, “If provides, technical

dence Code specialized knowledge assist

or other will

the trier of fact to understand the evidence issue, a fact a witness

or to determine (Okl.Cr.1995). U.S. 113 S.Ct. 4. 889 P.2d

2. 509 L.Ed.2d (1993).

3. 526 ' (1999).

Case Details

Case Name: Johnson v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jul 19, 2004

Citation: 95 P.3d 1099

Docket Number: D-2003-351

Court Abbreviation: Okla. Crim. App.