*1 appellants right of the ly did limit the based present new trial a motion for pre- nor
upon newly evidence discovered appro- seeking any appellants
clude are relief. We
priate post conviction conten- that this opinion
therefore of the propositions
tion is Other untenable. first appellant raised fully
presented original brief and in his previous decision.
considered in our reasons, foregoing
For above and herein previously rendered decision reaf- staying ex-
firmed, Court the order of this pending appeal is set
ecution of sentence
aside, there- of this Court is Clerk
fore mandate forthwith. directed to issue ex- originally appointed date passed having appellants
ecution of the ordered, appeal,
pending this it is further
adjudged judgment that each decreed appealed out sentence from carried appellants, Bob- the electrocution Clayburn Allen Williams and Joe Jus- tus, by the the State Peniten- Warden of McAlester, Oklahoma, Monday,
tiary at
February 1976.
BRETT, BLISS, J., J.,P. concur. JUSTUS, Clayburn Appellant,
Allen
v. Appellee. Oklahoma, STATE
No. F-74-713. Appeals of
Court of Criminal Oklahoma.
Sept. 17, 1975.
Rehearing Nov. Denied 1975.
ness last had contact with at about morning 3:00 o’clock that when he first dispatched him at 16th grocery to a store Point Drexel and then to the South Apartments in 60th. block of S.W. *3 Edwards then that Carol Lavon testified 9, 1973, at on she about 3:00 a. m. October telephoned her for a Yellow Cab to take a grocery store at 16th Drexel Pennsylvania. S.W. 47th and en While 50, route in she dis- cab no. overheard the patcher direct the driver to the South Apartments. Point Doherty, assigned Officer Marvin City crime lab division of the Oklahoma Police Department, next at testified that Defender, Anderson, Public Okla- Don 1973, 9, about he m. on 11:00 a. October County, appellant. homa for dispatched Apart- was to the South Point processed ments Gen., where he a Yellow Cab Atty. L. Larry Derryberry, Robert no. 50 fingerprints photo- for latent McDonald, Gen., Atty. appellee. for Asst.
graphed la- Although the scene. numerous tent fingerprints were both inside found BUSSEY, Judge: cab, and outside the none be identi- Clayburn Justus, Appellant, Allen herein- fied as those of the He identi- defendant. defendant, referred as was after fied through State’s Exhibits 6 as Nos. 3 in the charged, tried and convicted District photographs Ex- scene and all but Court, County, Oklahoma Case No. CRF- hibit 4 then evi- No. were admitted into 73-3180, for the of Murder in the offense dence. Exhibit 2 State’s was identi- No. O.S.Supp. Degree, of 21 First violation fied as projectile right-rear a found in the 1974, 701.1, 2. In accordance with ¶ § cab, floorboard of the and he observed that 1974, 701.3, O.S.Supp. provisions of § appeared the windshield been to have was sentenced defendant thereafter to suf- cracked, penetrated, sharp but not ob- a death, judgment fer and from said ject near left side. timely perfected appeal a has been sentence Phyllis Hemphill, manager South Court. Apartments, Point then that at testified trial, M.D., Keen, Phillip Eugene At the 1973, 9, about she 7:00 a. m. on October State, a medical examiner for the testified parked noticed a Cab no. in the Yellow body that he examined the of Robert apartment parking 10:30 a. lot. At about 9, 1973, Holmes on October determined m., approached place she note cab to a a gunshot the cause of death to have been on the windshield because the vehicle right wound to which entered head spaces, occupying noticing two but blood stem, temple, brain transacted the and exit- door, running telephoned the from the she ed behind the He left ear. further ex- police. pressed opinion likely had prior at occurred least five hours Lambert, Ray for the firearms examiner p. examination at m. 1:40 Investigation, Bureau of Oklahoma State had Yokum, next testified that he examined State’s dispatcher night Ted 2, and determined it to Exhibit No. Company, Yellow Cab next testified that been caliber bullet. That exhibit Holmes .38 Robert was a driver that com- then into evidence. pany and that wit- admitted October Guinn, assigned requested I a cab to come to the South Jerry Detective Apartments. robbery division of the Okla- Point homicide Department, then testi- City homa Police I ran down to the South Point participated the arrest he fied that Apartments Apartment and waited at 2, 1973, and on November downstairs. Exhibit No. identified State’s Uh, pulled up. got the cab in the form, Rights executed Waiver car. We left I directed him to 74th agreed shortly give before apartment complex Street. That al- regarding the video-tape statement out there. following night. That leged offense busy too Traffic was so I couldn’t do into evidence. then admitted exhibit was time, at what wanted do so I location also testified This witness him over am not directed to Western. in his video- by the defendant described *4 street, right the sure of but off Western. statement, the homi- tape place the as stop. stopped, I he I had When County, Okla- cide, within was Oklahoma my shot pistol and him. cocked homa. I and drove to Then moved him over Coffia, assigned to Bob Officer J. Apartments, his Point took South of the Oklahoma special services division wiped money, the car down and walked Department, next testified City Police home.” & video-tape the use of in he was trained the video- recorded equipment statement, and that he in this the defendant Elsewhere Ex- defendant, State tape statement money amounted disclosed that the taken at about police station No. in the hibit plus change, approximately some $30.00 3, 1973. p. on November 9:00 m. perpetrated and that he the crime alone. gloves, He he worn also related that had video-tape exhibited vis- was then This gun and that the caliber used was .38 audibly jury, after ually and chrome-plated lat- Colt Revolver which he in Follow- rested its case chief. the State Bobby in trash. er had Williams throw the evidentiary hearing, outside ing an immediately He burned the victim’s wallet previously jury, court presence personal pres- papers at in home certain incom- the deletion of had ordered wife, his and washed the blood ence of video-tape, had petent this but matter from did, in his clothes cold He water. Suppress wherein a Motion overruled however, papers personal notice from that he had not asserted the defendant Ralph victim that the name of the was intelligently voluntarily and knowingly, Robert Holmes. of his Mi- with the benefit the same made rights. randa as the first Bobby testified Williams Joe that he a friend of the witness was defense statement, video-tape the defend- In this arrested to- defendant both had acknowledged he read first ant 2nd, and that de- gether on November rights, and with refer- his and understood was arrested the same fendant’s wife also subject inter- offense was then ence to the day following gave he a state- night. part, follows: viewed in implicating the defend- police ment to the you tell Would “OFFICER GUINN: was that he would be ant he told because knowledge in words the your me own However, he released if he would do so. this pertaining homi- had further testified that cide? any involvement to him never admitted victim, he had and that am not sure the death of will. “MR. JUSTUS: nor But, gun, night, never seen defendant with certain date. away for defendant. Company. thrown one up the Yellow Cab called arrest, following Shortly Bobby their he testified this case until had after Williams Knight say that he overheard Detective his made statement which the defendant get defendant video-tape. that he would like see the observed on While still under off that he LSD, his head blown would agreed give influence he doing so, day following mind he video-tape confession after Detective that officer tell defendant that if pre- heard Knight repeatedly threatened him and up he did not make a statement to clear say. pared asserted him as what He get this murder case he never out of would Knight displayed a cocked that Detective jail. During cross-examination witness kill revolver threatened shoot admitted a conviction for Murder before Also, Knight escape. him for Detective earlier, court one same month which purportedly have the defend- threatened to appeal. Although onwas he not ac- held charged Murder and ant’s wife with statement, knowledge the was also im- bond, defendant without and said that the peached previous with his unsworn state- again see his son who had would never ment purportedly wherein placed shelter. been a children’s admitted crime to the witness. conviction, which defendant admitted a Murder, appeal, Degree on for First Jimmy L. next testified that he the same court one month earlier before the defendant’s father and that at Williams, also felo- Bobby along with midnight day about defend- Degree Forgery ny for Second convictions ant’s arrest telephone he received a call *5 Attempted Larceny a Motor Vehi- and of from Knight requesting Detective that he cle. police to the encourage come station and give his son to a He there ob- statement. Knight, assigned to Adam Detective J. eyes served the glassy, defendant’s to be the Oklahoma homicide division of and the defendant kept rolling as if them City Department, that Police then testified defendant, could not he focus. The at that participated he also arrest the de- time, any knowledge denied of the matters Bobby the after- fendant and on Williams
upon questioned which he had been and noon of and November introduced get asked lawyer. his father to him a testimony tending to show that the defend- The defendant was the final witness in inject ant did not into his mouth LSD his behalf testified that while under arrested, upon being nor demonstrate the influence of he LSD was threatened purported symptoms being in- under the making coerced into video-tape explained fluence of the He he same. that being confession after coached and re- questioned only two defendant on occa- hearsed, and that the contents thereof were sions, shortly po- first after arrival at the not explained true. The defendant that early following station lice and then shortly before being pur- arrested he had afternoon, subject and that the offense was chased some at LSD which time he took during not discussed He these interviews. tablet, one but then took remaining advised the his defendant of constitutional just quantity prior his keep arrest rights prior interview, to the first includ- being caught with them. He was ing right his attorney, to an but at no time first told that he being arrested for request did attorney. an He tickets, back arriving po- but before at the allegations denied the of misconduct attrib- lice station he he told had been arrest- uted Bobby the defendant and ed for Murder because he Bobby was with Williams, specifically denied ever Despite Williams. repeated his request for threatening the rehearsing defendant or attorney, he was questioned thereafter him to video-tape. make the confession. several times and told he need would not before the defendant made the video- Just an attorney until county transferred tape confession, this witness testified that jail, however, he was not questioned about present he was when Detective Guinn in- pertinent voir dire defendant, examination that after ob- terviewed the prospective jurors these is set forth in the video-tape statement made serving a Appendix express- In hereto. that decision Williams, defendant “started Bobby ing Justices, the views of five the United was, calling stupid saying how Williams Supreme States follows: Court held as well, names, said, and he then him few “ whole going to have to tell them the am Specifically, hold we everything.” truth now about [Tr. sentence of death cannot be carried out jury imposed if the Guinn was then recalled Jerry Detective or recommended it only by excluding he was chosen and testified that interviewed veniremen video-tape simply they for cause at the time of because defendant voiced confession, shortly prior general objections thereto expressed questioned Bobby stated religious he Williams who conscientious or ” scruples particulars against that the had admitted its defendant infliction. (391 of the crime to him. defendant footnote When U.S. S.Ct. omitted). state- video-tape was then shown Williams, by Bobby looked ment “he made However, agree posi with the pro- at and he called him a Mr. Williams ably appeal adopted tion State name, him, don’t fane told said applicability Witherspoon Now, going doing. see what are am where, upon limited to those cases convic truth, going to have tell the and am jury charged, tion for the offense has up the give have to and clear statement discretion to resolve whether cor- crime.” This witness also 361]. suffer degree shall death or some lesser testimony of Detective roborated the punishment. This conclusion becomes Knight tended to establish that apparent upon clearly an examination of inject LSD into defendant did facts which that de and rationale ap- arresting mouth officers part, pertinent cision was based. proached. Supreme rea United States Court there *6 State then rested rebuttal and soned as follows: in be- evidence in surrebuttal was offered “ conclude, simply . . cannot . We half of the defendant. of record now be- either on the basis the notice, error, judicial of the us or of assignment In his first fore as matter opposed to jurors the death that the exclusion of defendant contends that sentence unrepre- punishment is in an capital unconstitutional virtue of the decision results or Supreme guilt issue of jury of the in on the United States Court sentative of Georgia, risk convic- substantially consolidated cases of Furman increases the v. Texas, Georgia Jackson Branch . v. v. tion. 238, 2726,
408 92 32 U.S. L.Ed.2d S.Ct. follow, however, “It does not However, regard 346 in this (1972). in relief. For petitioner entitled to no is need this was only observe that contention with jury was entrusted this case the analyzed rejected by this thoroughly first, de- responsibilities: two distinct opinion Court in of Wil the consolidated inno- was petitioner termine whether State, Okl.Cr., liams 542 P.2d v. second, guilty, if guilty; cent or 554 (1975). be should his sentence determine whether been assignment In has not imprisonment his final the de- or It error death. re- penalty jury biased with fendant the death this was contends that shown that is it imposed spect petitioner’s guilt. But cannot be because five veniremen that, improperly in role arbiter for cause in vio- its excused self-evident jury imposed, this Illinois, punishment Witherspoon lation of U.S. to be v. 391 510, 1770, impartiality 88 (1968). woefully S.Ct. 20 776 short of L.Ed.2d fell petitioner Instead,
to which
entitled
un-
it has deliberately
der the Sixth and Fourteenth Amend-
‘made
.
.
penalty
.
death
optional
ments.
.
punishment
.
form of
“
jury
which the
remains free to select or
Illinois,
.
.
.
as in other
[I]n
reject
itas
sees fit/
. And one
States,
given
jury
broad discretion
important
of the most
any jury
functions
to decide
or
is ‘the
whether
not death
perform
can
making
in
such a selection
case,
proper penalty’
given
ju-
in a
and a
is maintain
contempo-
a link between
general
capital punish-
ror’s
views about
rary community
penal
values and the
play
ment
in
an inevitable role
such
”
system
391 U.
[Footnote
decision.
S.
S.Ct. footnotes omitted] “But where a fixing State leaves the of “It is [*] suggested [*] in a [*] dissenting opinion [*] [*] lesser the penalty penalty to the on recommendation of jury, or provides for a today might mercy by the Illinois gives State of the jury, or jury the particular ‘impose power a penalty, including guilt degree, to find in a lesser death, persons on all of convicted certain the jury leeway. leaves great law the crimes.’ . But Illinois has at- scruples against Those with capital pun- tempted thing. no such Nor has it de- try 'according ishment can the case to a category capital evidence,’ fined of cases in the law and the because the law preferred penalty.’ which ‘death the does contain not the inexorable command [is] eye.’ to eye upon Rather ‘the law’ cases wherein an of ‘an for an instruction a punishment appropriate of to the lesser included degree the offense was leaves though the set- even jury. penalty in was manda- Logan v. United States tory .upon ting present principal not state conviction of the case does for of- charged. However, proper is fense what I believe rule. such instruc- given here, tion in it states or called for Whether other circumstances majority observe that view question is a we need in defensible rule of jury , the dis- case was concerned with not reach. has situations Where jury wherein the impose penalty “[gjuided by to the death or neither cretion is, rule it, my in nor standard” impose Logan and within its discretion not rule to free to opinion, improper For it results choose between the death one. punishment or lesser in of the for offense weeding those members out charged. community likely most to recommend likely those mercy and leave in most Witherspoon inapplicability of mercy.” not recommend U.S. [391 present case, however, does not 528-529, 1781, footnotes omit- 88 S.Ct. mean that ju the exclusion for of cause ted] antagonistic capital punishment rors is capital punishment provisions under cases, ap without standard. In such convicted, 21 here was
which the defendant propriate may be challenge basis for seq. enacted O.S.Supp.1974, et 701.1 § implied extent bias or bias actual response Legislature in Oklahoma personal of a scruples opinions or Furman, making the assess- supra, yield Legis venireman will not to what the penalty mandatory ment the death has lature determined to be law. Murder, repre- Degree for First conviction bias, respect implied O.S. With necessary approach sent the extreme part: provides, pertinent in § sentencing discretion curb the unfettered may implied challenge “A bias Williams, in su- See condemned case. following cas- taken for all or provides, in pra. regard, In 701.3 § es, and for no other: pertinent part: ****** person of murder “Every convicted punishable charged be If the 8. offense suffer death. degree the first shall death, entertaining such con- with trial, jury shall jury case of preclude his opinions as would scientious is only whether the defendant determine of, in which guilty finding defendant in the guilty guilty of murder permitted nor neither be case shall upon finding degree first juror.” compelled to serve as verdict shall indicate on their so bias, 22 challenges for actual Regarding affirmatively their verdict that state part: pertinent O.S.1971, provides in death. suffer shall § two are of
“Particular causes kinds: imposition of respect With penalty, the "conscience [******] of mind a state above existence of in the 2. For the
community” thus embodied *8 in to part reference rep juror, on the of the duly elected provision the enacted case, satis- party, cas to either and in such the or people, of the resentatives court, a sound exercise of fies the the longer as “arbiter of acts jury the es discretion, try the issue cannot that he is limit punishment imposed” but the to innocence, the sub- prejudice to impartially, without guilt of ed to a determination challenging, party rights of the penalty being stantial with assessment chapter as in this Doug and which is known upon mandatory conviction. Justice Witherspoon actual bias.” apparently las extend would 606 Okl.Cr., apparent Sharp, 414 Application P. view of the reference the trial
2d 722 this Court stated with court (1966), questions previously pro- to implied pounded. regard challenges for bias: Viewed favorably most “ defendant, responses of the first three repeatedly . have held [W]e veniremen to be so excused were somewhat O.S.1961, requires juror’s 22 660 § equivocal. However, we observe de- removal for if he has conscientious cause fense object counsel did not to the exclu- capital opinions concerning punishment veniremen, sion of subject of the five preclude finding de- that would certainly this would indicate that he State, guilty. fendant See Cardwell v. did consider 817 and Reed v. Okl.Cr. P. have prejudiced. Further, been the ab- State, 103P. 1042.” Okl.Cr. systematic sence of a scheme exclude all carefully have reviewed We veniremen concerning with hesitation case, voir dire examination in this death penalty irrespective of their ca- first observe that the trial court conducted pacity to otherwise impar- sit as fair and though Witherspoon such as examination jurors, tial is evidenced by the following applicable, were extent of whereas examination prosecutor conducted made, inquiry prosecutor utilized a Horn, jurors Mrs. who was one of the appropriate approach, inquiry more e. i. finally empanelled try this case: a determination as to whether the venire Horne, you “MR. HARRIS: Mrs. have penalty men could assess the death here, heard all questions asked prove State and, you verdict, could render a knowing charged beyond offense a reasonable that it be a penalty would ? could, however, prosecutor doubt. say this, MRS. HORNE: hate to but inquired appropriately further as I don’t know whether I could do it or mandatory whether the assessment of such really not. don’t. punishment upon prevent conviction would standing veniremen from indifferent you HARRIS: except MR. Could [sic] between the State and the defendant in ' deliberation of according their verdict MRS. HORNE: evi- people law and the evidence. dence ? have, predeter through Legislature, MR. HARRIS: The instructions of the proper mined that such are cases offenses Court ? capital pun assessment of the exclusive MRS. HORNE: Yes. ishment, inquiry pertinent voir dire thereof, is whether in the veniremen view MR. And the evidence HARRIS: upon impartial can deliberate the evidence the witness stand and decide this case on ly punish under the law and assess such things, those and those alone ? guilt beyond ment should be established Uh, MRS. HORNE: huh. reasonable doubt. And, MR. HARRIS: proved if it find that the voir We dire examination guilty, beyond doubt, a reasonable the last two veniremen excused charged, penal- and that meant the death basis, Hamilton, Mrs. Oberton Mr. ty, render a verdict for that? clearly unequivocally establish that could not assess the death Well, my MRS. HORNE: I would do assuming guilt even of the defendant best. beyond
to have been established a reason- try, HARRIS: MR. would You wouldn’t Although able doubt. the examination of you? limited, relatively Mrs. Oberton was she original try.” was one of twelve MRS. HORNE: veniremen *9 to be called and this conclusion becomes 29-30]
607
merit,
adopt
following
a be without
that
opinion
areWe
supra,
language
approved
from Logan,
to the ex
also
appropriate
is
challenge for cause
equivocal
dissenting opinion
and
three
in a
to
is
venireman
that the
tent
Justices
Witherspoon:
follow
capacity
his
regarding
uncertain
juror.
a
oath of
honor the
law and
juror
has
“.
.A
who
conscientious
requirements of Wither-
Under even
scruples
subject,
prevent
any
which
approved
previously
spoon,
has
this Court
standing
him from
indifferent between
ap
otherwise
where
challenges for cause
accused,
government
and
and
responses
no
upon
of a
based
propriate and
trying
according
the case
here.
than existed
equivocal nature
more
evidence,
impartial
law and the
is
State, Okl.Cr.,
P.2d 549
456
v.
Koonce
See
juror
12
.”
U.S.
S.Ct.
[144
life im
sentence modified
(1969), Furman, supra, 408
pursuant to
prisonment
evidentiary hearing contemplated
2845, 33
748
L.Ed.2d
92 S.Ct.
U.S.
provisions
O.S.Supp.1974,
under the
of 21
Okl.Cr.,
State,
502 P.2d
(1972); Koonce v.
previously assigned
701.5 and
701.6
§§
Okl.Cr.,
State,
v.
(1972), and Gibson
1048
and heard
this Court. No
evidence
Clearly,
prospec
(1972).
891
501 P.2d
offered
either
the defendant or
concerning the
animosity
juror with
tive
Rather, shortly
upon
hearing:
that
State
upon this
be excused
should
prior thereto the defendant filed a motion
personal beliefs
if
to set aside
able
basis
that
requesting
guide-
this Court establish
try the
case
and fulfill
oath
attitudes
lines for the review death
un-
sentences
according
the law
impartially
statutory provisions,
der those
and each
However, if
of the de
satisfied
evidence.
candidly
party hereto
indicated that with-
doubt,
reasonable
beyond a
guilt
fendant’s
guidelines
out such
these statutes
so
were
he
as to whether
is
unresolved
venireman
vague
un-
and uncertain
penalty, or
then assess
proceed.
aware as to how to
we have
As
mandatory
penalty to be
knowing the death
by our decision in Williams and
v.
conviction,
is uncertain whether
he
upon
State,
provisions
supra, held these
to be
the de
indifferent between
could stand
he
unconstitutional, no further
discussion
deliberating
the State
fendant and
necessary
thereof is
here.
the evi
the law and
according to
verdict
dence,
extent fore
he has
Pursuant
to Rule
of this
1.11
Court,
O.S.Supp.1974,
18, App.,
is undecided
the court
he
22
Ch.
warned
comply
previously assigned
with
oath
this
he could
case was
whether
argument.
heard
oral
now
We
cause should
juror. A
carefully
reviewed
entire record before
venireman,
for oth
granted against such
Court,
thoroughly
this
considered the
the oath
administration
erwise the
presented,
argument
authority
agree with the co
We
be frivolous.
is
have determined that the record
free
that the trial
gent argument of the State
any
requiring
error of law
reversal.
accept
juror
who does
court should not
judgment
accordingly
is
sentence
Af
law,
follow
not know whether
can
firmed.
create
and that
otherwise would
do
1.18, O.S.Supp.1974,
Pursuant to
Rule
jurispru
system
chaos and make our
18, App.,
is
Ch.
advised
personal
a mockery
upon
dence
based
Rehearing
herein
Petition for
State, as
whims
well
of individuals. The
must be filed with
of this Court
the Clerk
defendant,
fair and
is entitled to a
(15) days
within fifteen
of the date
State,
impartial jury.
Payne
Okl.
See
v.
opinion
filed therein.
this
Cr.,
Hayes
(1954) and
v.
APPENDIX beyond a reasonable as dout [sic] charged, is and he charged with commit- Selected Dire Voir Examination ting murder while engaged in an armed Now, prove robbery. “MR. HARRIS: if we him doubt, guilty, beyond a reasonable Now, prove facts, if you those charged, says you the law to as- are - only your satisfaction, have one penalty, penalty. sess the death other only you choice, have one and that’s find reason, any you, any guilty Is there ei- who assess death penalty, could ther nothing. not follow that law ? that or you Does bother
Mrs. ? Johnson? Uh, Cox, MRS. no. Mrs. JOHNSON: you Yes, sir, MR. You think HARRIS: don’t MRS. COX : it does. could follow that law? MR. HARRIS: What is it? No,
MRS. I don’t. JOHNSON: Yes, sir, just MRS. it I COX: am does. really MR. what not HARRIS: No matter sure. might are or the facts Court’s instructions I think we should not have the
be? penalty. really don’t I I know. am unsure MRS. I have known some- about that. JOHNSON: one, I and don’t think I could. just It do that.
MR. HARRIS: You can’t - - - MR. HARRIS: You listen for Cause. will you We could listen to the evidence? Juror you ask Yes, THE Let me sir, COURT: MRS. I COX: listen Johnson, your reserva- question, Mrs. are the evidence. re- about such that
tions MR. HARRIS: And instructions of the gardless the law and the facts the Court? you could in- circumstances of the case Yes, MRS. COX: sir. beyond penalty, you a death if found flict MR. HARRIS: And law follow the reasonable that the-the defendant doubt with reference to it. charge to be of Murder Yes, MRS. COX: sir. Degree? First And, MR. if HARRIS: the State have to talk MRS. Do I JOHNSON: proves, beyond a reasonable doubt he was about, please. I mean guilty ? I (Interposing) THE COURT: Yes, MRS. COX: sir. not, you really. prefer that you question How would answer ? you MR. HARRIS: Could assess penalty? MRS. I think I don’t JOHNSON: I don’t think could. I could. _ -- just MRS. I I COX: don’t know. All, right, THE am going COURT: I I it am afraid would on. bother me later you. excuse know, just really. mean, don’t you enough problems I think would have You MR. HARRIS: reserva- some any- area in that that it fair to wouldn’t be that, you tions about don’t ? body.” & Yes, MRS. COX: sir. n n n n n MR. ask the ex- HARRIS: We - Juror general “MR. HARRIS: Now cused for cause. you. general questions a few more to all of require You will Defendant— need THE COURT: minute. Just we, State, question, Defendant prove ask Mrs. Cox. *11 sorry, I can’t amI THE REPORTER: you. hear the death about your reservations Are case would This BOWERS: MRS. law, the regardless of penalty such that nervous, believe, if I I had me make case, facts, circumstances you stay, know. if penalty death inflict the you could that You don’t believe that MR. HARRIS: doubt beyond reasonable you found impartial juror a fair and you could sit as the crime guilty of was the Defendant knowing render a verdict Degree? First Murder penalty? might it be really why I would That is MRS. COX: I I don’t MRS. believe BOWERS: be like to excused. could. _ - it . do like I have to I feel I think me, you MR. HARRIS: You are afraid know, proved to like, you I it was if felt _ - - - ? - couldn’t - I just just I’m and I don’t know. just MRS. Couldn’t. BOWERS: All, going am I right, COURT: THE MR. HARRIS: We the Juror you. excuse cause. Cox (WHEREUPON, Mrs. R. Bowers, THE Mrs. ask COURT: let me Juanita excused.) question you pre- this have which I asked viously of the other BOW- Jurors. MRS. BREWER MRS. [sic. I like be excused : would ERS] your Are about reservations and I reason, nervous because amI same such, law, regardless of the afraid,
am . case, facts the circumstances of the you get back to Let me THE you penalty, COURT: if could not inflict the death you if will. in a moment you beyond found a reasonable doubt guilty of the crime Mur- MRS. BOW- MRS. BREWER [sic Degree? der in the First fewa I had a heart attack : have ERS] make might it years ago, I am afraid I MRS. I don’t BOWERS: believe nervous. me worry- It make could. nervous me in a min- I will be back THE COURT: ing it, thinking it, about I it about am sure here, seat fill the other need to ute. We would. your name is? and we know whether mind.” “MR. MRS. BOWERS: MR. HARRIS: [******] will come back to HARRIS: [Tr. 20-22] you You Mrs. Yes. say Bowers, believe you sit or not? if you you I don’t don’t nothing particularly easy about ror, and I don’t either. Mrs. Bowers.” THE “THE you may COURT: COURT: anticipate have discovered I am that this case will be & going Now, being Ju- to excuse there now, I think MRS. I sure don’t BOWERS: Oberton, your Mrs. what is situation? can. Concerning MRS. OBERTON: might suggest you MR. HARRIS: penalty. may Jury sequestered here. be All, ask right. THE Let me COURT: you kept together That means will be over question that before. the same I have asked night, and so forth. Does that bother you? you were a Minis- Did I understand ter? Well;
MRS. might. BOWERS: it Like say, Yes. have “MRS. OBERTON:
peal dissolved, Order of this staying Court issuance Mandate is here- part THE Is there COURT: some by superseded, and the Clerk of this Court your religious creed or tenants that is directed issue Mandate forthivith. religious scruples principles ordered, It is further adjudged and de- that would be in this ? involved judgment creed that the and sentence here- OBERTON: MRS. Yes. *12 in appealed from be carried out you THE COURT: You feel that don’t Appellant, electrocution of Clayburn Allen would be able to sit as a in the case Juror Justus, by the Warden of the State Peni- punishment. where is the tentiary McAlester, at Oklahoma, on Mon- MRS. OBERTON: No. day, February 1976. THE going COURT: am excuse you then BRETT, & TOM P. [Tr. J. homa “MR. HARRIS: The Laws of Okla- [******] require that Murder I requires C. F. HEZ J. BLISS, Jr., BUSSEY, J. J. death penalty.
If the State proves, beyond a reasonable
doubt that the Defendant
charged, penal- vote the death
ty? MR. HAMILTON: No. Roger ROWBOTHAM, Appellant, Dallas MR. HARRIS: We the Juror v. for Cause. Oklahoma, Appellee. The STATE of THE Hamilton, you Mr. may COURT: No. F-75-44. step you would, down if please.” Appeals Court Criminal of Oklahoma. & 77] Sept. 18, 1975. Rehearing Denied Nov. 1975.
ORDER ON REHEARING Appellant sentenced to was heretofore
suffer for the of First De- offense
gree Murder in Case CRF-73-3180 No. Court, County, the District Oklahoma upon appeal that sentence was thereaf-
ter affirmed in cause. the above entitled stayed
This Court the issuance of herein, motion,
Mandate own its
pending resolution of related issues Rehearing
raised in the Petition for State, Okl.Cr.,
Williams and v.
P.2d (1975), argument and oral presented
thereafter upon consolidated
hearing. For the reasons discussed our
Opinion on Rehearing in Williams and
Justus, the decision previously rendered
herein hereby reaffirmed. ordered,
It adjudged is therefore and de-
creed staying that the Order this Court
execution of pending ap- sentence herein