LaFevers v. State

within рroved by evidence was direct Rogers v. plaintiffs power produce. (Okl. Co., Cato Oil & Grease

1964). showing the burden

Plaintiff bore alleged negligence existence of defendant’s negligence proximate and that his injury. Plaintiff failed plaintiffs cause of ruling carry the trial court’s his burden and The in favor of defendant was correct. affirming that Appeals’ Court of decision deny cer- judgment correct and we should tiorari. HAR-

I am state Justice authorized to expressed joins with in the GRAVE me views herein.

Loyd LAFEVERS, Appellant, Winford Oklahoma, Appellee.

STATE No. F-93-324. Appeals of Court of Criminal Oklahoma. May Denying Rehearing Order Directing Issuance Mandate

June Mildfeld, Burton,

Robert J. Catherina Defender, City, Asst. Public Oklahoma for defendant at trial. Keel, Caswell,

Lou At- Susan Asst. Dist. tys., City, Oklahoma for the at trial. State Antonioli, Defender, Vincent Asst. Public Office, County Oklahoma Public Defender’s City, appellant appeal. Oklahoma for on Gen., Loving, Atty. Susan Brimer A. Diane Blalock, Gen., Atty. City, Asst. Oklahoma appellee appeal.

OPINION

CHAPEL, Judge: Vice Chief Loyd by jury Winford LaFevers was tried before the Honorable Thomas C. Smith County. the District Court Oklahoma Case No. he was convicted of CRF-85-3254 Degree Aforethought First Malice Murder O.S.1991, 701.7, § violation of and Third O.S.1981, Degree in Arson violation of 1403(A), § After Former Conviction of a Fel- ony. stage At the conclusion of the first of trial, jury guilty.1 the returned a verdict of 1) jury During sentencing, the found the heinous, atrocious, especially murder was 2) cruel; probability a that LaFev- there was commit criminal acts of violence ers would continuing a threat to that would constitute 3) society; and the murder was committed purpose avoiding preventing for a the prosecution. LaFevers was lawful arrest or sentenced to death for the murder conviction forty years incarceration for arson. and per- these LaFevers has From convictions twenty-two proposi- appeal, raising his fected of error. tions 24, 1985, p.m. LaFev- Around 10 on June and Randall Cannon2 broke into 84- ers law, punishment. O.S.Supp.1989, capital appropriate trials are con- 1. Under Oklahoma First, § 701.10. stages. jury determines ducted in two the guilt a finds a the issue of or innocence. If initially tried to- 2. LaFevers and Cannon were murder, guilty degree defendant of first the trial March, 1986, gether of first and convicted sentencing stage proceeds a where the to degree burglary, degree robbery, kidnap- first life, life with- determines whether a sentence of murder, vehicle, ping, larceny of a motor malice possibility parole, out the or death is arson, degree degree rаpe, and forcible third first tapes at trial included cassette Hawley’s house. The two sented year-old Addie interrogation. house, Hawley, beat forced ransacked Buick, and off. At some her into her drove 8:00 a.m. LaFevers was arrested at about They Hawley in trunk. point they put 26, 1985, began and Mitchell on June Officer gas can a bottle or with stopped and filled questioning a.m. La- initial about 8:30 his and Cannon gas. Eventually LaFevers Fevers waived his Miranda rights, answered lot, Hawley got a from near vacant stopped minutes, questions and sur- for about fifteen trunk, again, poured gaso- beat her then Mitchell his shirt and shoes. asked rendered They drove the line her afire. on her set give police body if would LaFevers he vacant area a short distance Buick to another yes, as samples, and LaFevers said soon fire as well. Witnesses away and set it on lawyer. a La- spoke he Mitchell assured gas the car and saw the two with a can right. LaFevers told Fevers he had that midnight, lawyer Before running from the scene. a Mitchell that he did have Hawley alive. get She him firefighters found still that Mitchell have to one. would lawyer head he 5:30 a.m. of both blunt force Mitchell asked whether wanted died about just body samples talking fur- covering 60-65% of her before trauma and burns just said he needed to injury have ther LaFevers body. Either would caused then if LaFevers talk to one. Mitchell asked death. interview; wanted to terminate their LaFev- no, on, ges- they said could leave “this” ers PRETRIAL ISSUES turing Again the tape recorder.5 Mitchell stop if asked LaFevers he wanted argues Proposition III LaFevers lawyer. a interview since he said he wanted overruling trial erred in his that the court get lawyer. he LaFevers asked when could suppress pretrial his custodial motion up would Mitchell told LaFevers that it be admitting these statements statements courts, get lawyer could with no he objection he his over his because invoked problem, again asked whether right taken to counsel. Where evidence “No, talking. said I’ll was finished trial support court’s camera sufficient you.” talk to vol ruling that a defendant’s statements are admissible, untary ruling will not be the trial In LaFevers’ Jackson totality erroneously appeal.3 disturbed on court considered circumstances, v. Denno hearing unequivo Mitchell testified he Officer counsel, questioned cally right invoked that he LaFevers to determine extent his to equivocally that final request right, counsel.4 LaFevers testi invoked his his for attorney right, did waive and that fied that he wanted an when the statement not body samples to knew of the statement was not harmless. talk turned because he admission serious, A of an es given product he have confession must be the but would talking attorney. sentially choice. body samples after with an free and unconstrained below, supported determining the voluntariness a con As discussed evidence When totality must ruling trial that LaFevers’ statements fession court consider court’s circumstances, voluntary. pre- including the character were Additional evidence Denno, 368, 393, sodomy. appeal 378 84 S.Ct. Court affirmed the Jackson U.S. anal On four, 1790, (1964) (established but reversed the latter a first four convictions 12 L.Ed.2d 908 mutually antago- holding that the defendants had right hearing an in camera defendant's charges and be nistic defenses as to those should confession). voluntariness of his State, separately. LaFevers v. 819 P.2d tried State, (Okl.Cr.1991); Cannon v. 827 P.2d in an inaudible LaFevers asserted trial that (Okl.Cr.1992). just again he said after comment statement lawyer. heard he a The trial court wanted 3. McGregor v. 885 P.2d 1377 n. 20 differently. This Court's review of the statement (Okl.Cr.1994); Turner tape support LaFevers' assertion. does not (Okl.Cr.1990), denied, cert. 115 L.Ed.2d first,” lawyer, questioning.6 request the defendant and the details of a clear and concise for correctly distinguishable at the entire counsel. are The trial court looked Both cases from determining argues LaFevers’ situation. context of statement when interpreted that the confession was admissible. Mitchell his statements as re counsel, quests improperly for that Mitchell After a defendant asks for counsel counsel, questioned why he wanted and that subject questioning he to further un is not unequivo in Mitchell’s mind LaFevers had interroga less he has counsel or reinitiates cally right. invoked his One wonders how personnel.7 tion with law enforcement When assertion, can make this last requested, questioning counsel has been certainly supported by not Mitchell’s own may must cease and officers not initiate con testimony. Clearly Mitchell believed LaFev- present tact without or counsel whether request ers had made some sort of an defendant has consulted with counsel.8 Cus attorney, but the initial statement came in interrogation equals express todial both body samples, the context of after a valid questioning and words or actions Miranda waiver and after fifteen minutes of they police reasonably should know are questioning. Nowhere did LaFevers un likely incriminating response; to elicit an equivocally say attorney that he wanted an perception, focus is on the not an defendant’s right questioning then or wanted to end. officer’s intent.9 A defendant reinitiates in terrogation represents when he a desire to suggests LaFevers then that his open up generalized a more relat discussion may ambiguous initial statement have been investig ing directly indirectly to a criminal says his next but two comments —that Mitch get attorney ell him ation.10 would have to an just that he to talk to needed one—clarified statement, LaFevers first that his give his intentions. must Courts broad “Yeah, lawyer”, I talk as soon as to a was an interpretation requests for counsel where unequivocal expression of the desire for the words, ordinary a defendant’s understood as attorney dealing assistance of an with a them, people ambiguo would understand are police interrogation.11 custodial knowing voluntary us.14 After a waiver directs this two recent cases of Miranda rights, law enforcement officers unequivocal request which an for counsel may questioning through equivocal continue inquiry. should have acted as bar to further suspect clearly requests Sattayаrak statements until a v. State 12the In questioning offi Here, attorney.15 an statements clearly cer was informed LaFevers’ that the defendant counsel, clearly do not indicate whether right began had invoked her but attorney questioning agreed give after the wanted an before he defendant asked where they going. inqui body samples simply stop talk were This Court held that wanted to ry Any ordinary did not ing altogether. person might reinitiate contact sufficient to Booker v. previous waive the exchange ambiguous, especially giv invocation. find the questioning lawyer repeated State 13 officers continued after en LaFevers’ mention of a coupled say the defendant said “I talk would rather to a with his refusal to he wanted to 394, Wisconsin, (Okl.Cr.1987), 6. Castro v. 403 LaFevers McNeil v. 11. cites 501 U.S. denied, 971, 1248, 171, 2204, (1991) rt. 485 U.S. 108 S.Ct. 111 S.Ct. 115 L.Ed.2d 158 ce (1988). (holding 99 L.Ed.2d 446 that the courts would not infer a Fifth Amendment assertion from the attachment of a right charge). Sixth Amendment on another Arizona, 477, 484-85, 7. Edwards v. 451 U.S. 101 1880, 1885, (1981). S.Ct. 68 L.Ed.2d 378 (Okl.Cr. 1994). 12. 887 P.2d 1326 146, 147, Mississippi, 8. Minnick v. 498 U.S. 111 488, 486, (1990). 544, (Okl.Cr. 1993). S.Ct. L.Ed.2d 489 13. 851 P.2d Innis, 291, 523, 529, 299-300, 9. Rhode 446 U.S. 14. Connecticut v. Barrett 479 U.S. Island 1689-90, (1980). (1987). 100 S.Ct. 64 L.Ed.2d 297 S.Ct. 93 L.Ed.2d 920 Bradshaw, 1039, 1045, State, - U.S. -, Oregon ‍‌​‌​​​​‌​​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌​‌​​‌​‌‌‌​​​‌‌‌​‌​‌‍15. Davis v. 2830, 2835, (1994). S.Ct. 77 L.Ed.2d 405 129 L.Ed.2d 362 resembling LaFevers and Can- saw men stop Mitchell followed who the interview. (with man like open him. He dressed only to non the brown-haired reasonable course LaFevers) Hawley’s it was any interrogation until near Buick where substantive avoided found; questioned Goolsby, La- who how LaFev- problem and confirmed was clarified dressed, him talk after only regarding willingness his to ers was observed Fevers crimes, attorney. does his to Sam Can- an The record and heard comments wish for non; Collins, La- any Ryan Mitchell identified suggestion that who support not urge Hawley’s to and the car arson phrased requests to Fevers house his Hawkins, talk, tes- gave any impermis- respectively; and whose he scene or that timony presented LaFev- Contrary suggestion to the in the first trial sible advice. from brief, jailhouse LaFev- The could Mitchell did not tell ers’ confession. LaFevers’ voting in to not counsel. LaFevers have relied on evidence ers he would receive statement, his correctly contends that final convict.16 “No, you,” I’ll talk to did not create stage, In the LaFevers’ second second previous in his statements. That ambiguity admitting Pa- involvement statement ambigu- statement resolved the considerable proof used con- was den crimes17

ity point. to that tinuing aggravating threat circumstance. Tammy final state- Both Paden Austin and Anna Paden

LaFevers’ contention his LaFevers, ment, “No, you”, identified but I’ll talk to was not a valid testified. Neither waiver, agrees to their assailants as “taller” presupposes that both referred (LaFevers taller his Fifth Amendment and “shorter” than Can- invoked non). evidence was also introduced to right. In fact LaFevers did not invoke his Other right prior agreeing support continuing aggravating continue threat to counsel circumstance, ambiguous including statement the circumstances talking. He made an unadjudicated purpose prison requesting counsel for some the crime itself two stabbings. not to clari- Had LaFevers’ statements Mitchell went considerable trouble statement, “No, I’ll talk could have relied on fy. LaFevers’ final been admitted support aggravating you”, previously of a that evidence was a waiver ambig- right an invoked but a clarification of circumstance. request for

uous counsel. JURY SELECTION admitting

There no error IX, were, Proposition argu LaFevers ar If LaFevers’ statement. there prejudiced rights were violated gues him in his constitutional ment that its admission stages qualification” of “death voir dire would fail. use both the first second questions. LaFevers cites no cases for claim the other evidence LaFevers’ Sixth, relying only disregards proposition, on the failed to connect him to the crime Cannon, Eighth, Amendments to the testimony of: who ob and Fourtеenth Sam pre Constitution. LaFevers’ just after the crimes and United States served him; qualifying” challenging trial “death admitted crime to motion said LaFevers He claims that this Parkey, regarding questions was overruled. who testified Madden impartial jury right imme to an drawn appearance and demeanor violated his LaFevers’ community and posses of the the crimes as well as his from cross-section diately after likely State-prone jury Hawley’s jewelry; created discount several witnesses sion of Tammy granddaughter attempted to her of LaFevers' we determine that admission As error, by shooting; we do not reach first was not and statement the two LaFevers scare off statement, that his LaFevers’ contention second purse and women and stole Cannon beat both waiving days first and after made three after the leaving. gun Both women testified. the before by rights, tainted the first state- Miranda ment. charges pled to several nolo contendere resulting episode. jury The was in- from this plea, adjudicat- were the nolo so these formed of against Hawley and after the 17. the crimes After continuing proof as the ed offered of offenses closed, into the bars LaFevers and Cannon broke aggravating threаt circumstance. Paden, elderly living woman home of Anna an or cousin. Paden near LaFevers’ half-brother alternative, prac- absolutely defense evidence. He also claims this and we know that La- murder, equal protection singles Fevers was convicted of tice violates as it out malice felony capital eases and to murder. allows State exclude jurors only potential from those cases for argues that this error punishment. their views on LaFevers fails requires was not harmless and La- reversal. acknowledge authority from this Court tirelessly fruitlessly argued Fevers approving questions setting such forth pretrial throughout proceed issue juror the standard that each able should be ings objected grounds, on these thor imposition penalty consider the death as oughly preserving the issue for review. punishment appropriate one alternative an concerned, question aWhere constitutional is Questions jurors ease.18 whether will follow prove beyond must State a reasonable suffice, generally law be fair will not doubt that the did not contribute to the error parties as both must be satisfied that each jury’s complains verdict.22 LaFevers

juror in good aggrava- will faith сonsider the stage may the first instructions have con ting mitigating circumstances and deter- jury. required fused the The instructions prevent if imposition mine the latter prove that the State must each element of penalty.19 proposition the death This is de- beyond the crime a reasonable doubt and nied. unanimous, any verdict must be felony listed the alternatives of malice and ISSUES RELATING TO GUILT fairly murder. These and accu instructions AND INNOCENCE law, rately applicable stated and there is jury applied no reasonable likelihood that the proposition In his first prevent these instructions the consider prosecution claims that his under the alterna constitutionally ation relevant evidence felony murder-kidnapping tive count of vio (especially jurors unanimously as the found rights protection lated his fundamental murder).23 malice jeopardy process. from double and due La- correctly complains Fevers here that he prosecution LaFevers also that his charged should not have been with the alter reversal, prejudice enough alone caused murder, felony native count of since apparently grounds on the that he was sub- predicate felony kidnap relied on was the jected multiple punishment and that the charge of which he was convicted 1986 and presen- State had the chance to rehearse its by which was affirmed in LaFev- tation and make it more effective. It is true that, essentially ers 1. The separate State concedes this but for the fortuitous verdict However, forms, point, they subjected should.20 the basis he would have to mul- been However, prohibition that, principle tiple punishments. for this is the that does not only subject inquiry. where two alternatives exist and end our The issues are to a one proper, analysis. if constitutional verdict cannot be harmless error Even upheld jury may charged only because the on have relied were with malice murder retrial, guilty regarding kidnap- an invalid alternative to reach a verd the evidence gestae. That is not ping ict.21 the case here. Fortunate would have come under res Otherwise, ly received a verdict form for each would be told LaFevers State, 621, (Okl.Cr.1991),cessfully appealing 18. Duvall 825 P.2d his first convictions. This is v. denied,- U.S. -, 224, unpersuasive. 113 S.Ct. creative but cert. 121 L.Ed.2d 161 State, (1992); Banks v. 728 P.2d 497, (Okl.Cr. 1986). 1372, (Okl. 21. v. 1375-76 Tibbs 862, 869, Cr.1991); Stephens, Zant v. 462 U.S. 2733, (1983). 2738, 77 L.Ed.2d 235 Illinois, 103 S.Ct. Morgan 19. v. 504 U.S. 2222, 2232-33, (1992) (holding 119 L.Ed.2d 492 must, 18, 23, request, court California, trial defendant’s in- Chapman 386 U.S. quire sufficiently jurors (1967); to discover who would 17 L.Ed.2d 705 Bartell v. S.Ct. automatically impose penalty). (Okl.Cr. 1994). the death 881 P.2d 92 370, 380, California, attempts argue Boyde 20. The State that LaFevers jeopardy protection waived double suc- S.Ct. 108 L.Ed.2d 316 302 Hawley support claim. The was can be read to LaFevers’

burglarized and and she robbed majority only in a her the facts to deter- and field with reviewed found beaten burned proof un- to each nearby leaving large and mine whether the of defense burning car — understanding necessary jury’s in of element to each defendant violated each gaps the trial, given unduly empha- right not to fair each the crime. The State did defendant’s felony argu- in that the other committed size murder alternative defendant’s claims the find, beyond The focus on each This Court can a reason- the crimes. was defense ment. doubt, that of and the evidence as the other’s intent that able the erroneous alternative provided, not on suffi- felony murder not contribute to the each defense and the did (1) provided by guilty ciency proof regarding of intent verdict because the would any problem kidnapping have the of in the State. The was that each defen- heard evidence (2) convicted, necessarily event, by the overemphasize the dant was not State did (3) evidence, absolutely by is that and the instructions were hut the other. There proposition. merit accurate. no to this II, argues prop In LaFevers in his fourth Proposition LaFevers denying declaring trial in that the trial court erred in osition that the court erred claims permitting plea jeopardy collat and LaFevers’ of former and David Hawkins unavailable testimony from estoppel subsequent eral the State to read his LaFev- and motions jail, quash grounds. on first con and dismiss based these ers’ trial. While Hawkins, describing argues opin his role here that Court’s fessed David 1, ostensibly specifically confessing in the ion in LaFevers while a reversal crimes house, trials, actually sodomy, beating, separate rape, ransacking for remand was insufficiency Hawley her car. Haw setting a reversal based on of the evi afire dence, attached, trial jeopardy and a retri kins testified to this the first and was double only subject al accurate statement to extensive cross-examination and was barred. The acknowledges princi impeachment proposition efforts. Between first only testimony ple jeopardy Hawkins his that double bars retrial second trial recanted case, by filing, lengthy appeal а conviction reversed on in LaFevers’ docu where is “Application for insufficient evidence.24 ment entitled Citation —In Contempt”, charged and Direct direct in La- that dissent County Attorney that Oklahoma District majority’s 1 use of a Fevers criticized attorneys Macy and district Robert other test, sufficiency proving that evidence thus kidnapped involved in the case had him and finding was insuffi- reversal based on testimony in give false the first forced him to fact, cient of intent. the dissent evidence trial.26 analysis majority’s the mu- focused on during tually presented, sug- hearing At an trial antagonistic defenses in-camera he an at- gesting principals, the focus be Hawkins stated wished to consult should oath, culpability, analysis, torney speaking as he felt and an Enmund-like25 before under only might inculpatory and concluding went his statements be that defenses against exculpation. might be him the future. degree of fault rather than used majority perjury. made The trial suggesting Far that the Hawkins did not mention from evidence, sufficiency thoroughly questioned Hawkins and es- findings as to court there, why not. he he was complain dissent seems to it did tablished that knew and, willing be Similarly, nothing published opinion while he believed he would in the States, 11, killing place, templated would take 24. v. Unitеd Burks U.S. S.Ct. 2141, 2147, (1978); killed, killing). 57 L.Ed.2d 1 Montana v. attempted the 402-03, Hall, U.S. 481 95 L.Ed.2d 354 (1987); Edwards April perhaps It 26.This filed in (Okl.Cr.1991). that, time, had coincidental stabbings Florida, 782, 801, ‍‌​‌​​​​‌​​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌​‌​​‌​‌‌‌​​​‌‌‌​‌​‌‍in two inmate on Death been involved U.S. Enmund Row, 3368, 3378-79, (1982), including stabbing shortly Cannon after 73 L.Ed.2d 1140 S.Ct. (holding that a defendant cannot a death receive end of the first trial. he or con- sentence for murder unless intended counsel, represented by argues he that testify if he were Hawkins was concerned, rightly wrongly, poten about under oath would not make statements prosecution perjury. only tial The state representation. The trial court without such supporting in ments the record this come not appoint to counsel and ordered Haw- refused evidence, from the but from LaFevers’ attor agreed, testify. Hawkins but took kins to ney’s arguments to the trial court. Even if question, saying, “At the Fifth at the first perjury proper the assertions of were mat time, ma’am, my I this will have to exercise consideration, ters for this Court’s the whole right Fifth Amendment to silence.” The tri- perjury giant herring. issue is a red Haw stopped proceedings al court then disobeyed kins a court order and refused to directly testify again; ordered Hawkins to testify. judge A trial court need neither following after a brief discussion the ex- argue persuade with a witness and him he change place: took privilegе, has no Fifth Amendment nor as specific why certain reasons re witness you Trial “I Court: want be sure testify; fuses to the State has no affirmative you’re doing, you know what don’t reasons, duty to elicit and the witness’s rea any questions want to answer here be- good sons need not be The valuable.27 cause, answer, your opinion, you in if do it pains trial court here went to some to deter might you; tend to incriminate is that testify, mine whether Hawkins would and did right?” declaring him not err then unavailable. “Yes, sir, Hawkins: that is correct.” argues also his Sixth Trial “The Court: Court finds right Amendment to confrontation and cross- witness is unavailable.” Although examination was violated. Haw subject to kins was extensive cross-examina history clearly The above shows that Haw- trial, impeachment tion and in the first La- kins was declared unavailable under O.S. question Fevers was denied the chance to 2804(A)(2), § obey refusal to a court testimony. him about his recantation of that 2804(A)(1), testify, § rather than order LaFevers was able to enter into evidence privilege, refusal on claim of valid as LaFev- pleadings in which Hawkins his tes recanted The trial court never found ers contends. timony, along subsequent with the several that Hawkins was unavailable because he had felony convictions he received. LaFevers privilege; claimed a valid Fifth Amendment argu used the recantation and convictions in ment, directly, Hawkins was unavailable because he and the had this evidence to con sider, twice, testimony disobeyed testify. along with of several wit a court order to nesses. willing that Hawkins was testify just check the case but wanted to argues any admitting error lawyer supported by with a first. This is not testimony cannot be harmless as without record, flatly in which Hawkins refuses testimony the evidence was insufficient testify. might that he if he His statement of murder or arson. On to convict LaFevers attorney speculative could talk to an contrary, regard- other evidence existed best, not expression ing an both those crimes.28 LaFevers was intent. pulled Hawley into the car because she had 27. Williamson v. 402-03 face; denied, Hawley (Okl.Cr.1991), stopped put seen his the two cert. trunk; with in the then filled a 2-liter bottle S.Ct. 118 L.Ed.2d 308 lot; Hawley gas and drove to a vacant took left; passing after a truck La- from the trunk Corroborating evidence includes: left, car, then Cannon followed with the Fevers he, police fire; —In his statement to LaFevers said it on after- drove it to another lot set Cannon, Goolsby Crazy went to the Horse they the Chеck Mate. wards returned to Mate; LaFevers, Cannon, and Check wrecked his car and decided —Witnesses saw by and Gools- car; Hawley’s steal a went to house and Crazy at the Horse and Check Mate clubs door; crimes; open the screen kicked the front broke the three left the Check before the door; Hawley yard caught p.m. in the back Mate about 9:30 inside; pulled telephone three cord —Witness Volz saw men similar to the took her wall; Hawley's keys opened pushing LaFevers’ Camaro down the street from the took abandoned, was seen garage; which it was then one Cannon backed the car out and incorrect, (Madden’s only Parkey rape sodomy, spoke and were convicted of the Mate) unsupported employer at the Check about charges completely which were former by any suggests possible changes, that name and found no Okla- other evidence. This un- rely testimony listing for not on Hawkins’ homa driver’s license Madden the did any The did if at could have been der known name. coordinator alone all. LaFevers ignored Hawkins’ tes- recall mention of Texas. convicted had the timony, proposition must fail. and this February Attorney’s On the District began He invеstigator a search for Madden. V, Proposition name, had a date of birth but no certain last permitting that the erred in the trial court security number. known address or social transcript of Mad State to read the Bessie names, investigator Using several the ran trial, claiming testimony den’s from the first City, utility in for a checks Oklahoma looked properly unavailable Madden was not under County record and with sheriffs Oklahoma 2804(A)(5). O.S.1991, § Madden was a OSBI, Depart- the and checked with the and dancer the Check Mate Club observed Services, Human and ments of Corrections they and when re both LaFevers Cannon Safety investigator with luck. Public no The after crimes. LaFev- turned the club the Parkey, thought also who Madden contacted gave ers talked Madden and her two with remarried, might Florida, and who be they rings, saying were from an old friend a of no He ran knew Oklahoma relatives. might and she as well take them or he’d public safety an Florida check as well as away. ring throw them One was identified check, all inves- NCIC without success. The Hawley’s other, wedding ring her as and tigator did not check the 1985 address as ring, “mother’s” contained birthstones good. had him it coordinator told was not sons. her suggesting He had no information that Mad- By the time of the trial was first Madden hearing den be Texas. After would married, her had taken husband’s name of litany of failure the trial court declared Mad- Tulia, McIntyre, lived in Tex- and stated she previous den unavailable and allowed her (she address). provide did not an The testimony jury. to be read to the 1,1992. began second trial on March Before prior To a the trial counselor for the District Attor- introduce witness’s 1) ney’s testimony, prove victim-witness coordinator office at- the State must both tempted unavailability good despite to find without success. witness’s actual Madden diligence and The coordinator determined that the address faith efforts due to secure 2) phone presence, prior tes- and number on the 1985 Information witness’s and Mate, leaving away —Parkey, con- as the other two walked from the bartender at the Check car. after firmed LaFevers returned there —Goolsby he left scratches, said after the Camaro was p.m., gave 11:00 with cuts and and abandoned, planned other two to steal rings. Madden car; afterwards LaFevers smelled of smoke n —Sam Cannon said LaFevers, Cannon singed; and his were he arms overheard Crazy Goolsby early; that came in the Horse remarks to Sam Cannon. LaFevers’ they when returned much later LaFevers had Ryan —Hawley's neighbor saw LaFevers and a sooty deposits his arms and face and resembling Hawley’s open garage man Cannon gas; previously that LaFevers smelled had door, put her drive her in Buick and off. He rob, Hawley; he would kill and burn said had seen the same men around house on he said LaFevers afterwards reminded Cannon previous day. some it”; day he'd "do told the the next driving past, —While witnesses Gaither and "just paper happened it all witness like resembling Baker saw men LaFevers and Can- said”. Buick, gas Hawley's can non with a near mother-in-law, Roady, took —Ms. LaFevers' explosion ran to the and fire few minutes day him to retrieve the Camaro the next near later; this and witness Collins also saw identi- houses, Hawley’s and let him off Volz's but men fied LaFevers. Baker saw the flee the police when near the car. elsewhere he saw scene. Hawley returning —The medical said died evening examiner —Later that after to the Mate, gave burns head Check (McIntyre) Bessie Madden from and blunt trauma. wore, rings Hawley always say- two ing got he them from an old friend. reliability pre-mortem may timony indicia of have been cleaned bears sufficient photograph, examiner. its admission at trial.29 Thе record medical One allow side, testimony regarding showing Hawley’s appears the State’s the burns on must contain redacted, of the to find a witness.30 LaFevers com- to have had a view Y-incision efforts apparent person plains that the efforts here were not but this would not be to a State’s required autopsy photos. photo- enough claims the unfamiliar with No State anything graph depicts and out-of- other than LaFevers’ issue a material witness warrant Photographs may subpoena to last known ad- be admitted if state Madden’s handiwork. contrary, they probative has are relevant and their value is dress. To the this Court held diligence substantially outweighed by poten- not their those actions constitute due but has Parkey prejudice.32 Hawley’s required them.31 believed Mad- tial for Given causes death, might photographs particular- remarried not indi- of are not den have but did Texas; ly gruesome. They probative in are of the na- that Madden still lived cate Texas; no she was in ture and extent of burns and wounds and State had indication and, trouble corroborate the medical and fire examiners’ the State went to considerable testimony. places they thought in Mad- The trial court did not abuse its tо find her admitting pictures. a sham discretion in might den be. This search was not represented good faith effort to locate but no serious

the witness. LaFevers makes Proposition in LaFevers contends testimony that Madden’s sworn claim XI that the trial court committed fundamen previous lacked indicia of reli- trial sufficient provide it did not tal error when testimony ability, and claims error that the defining the term “rea with an instruction not cross-examined. Madden was sub- request sonable doubt”. LaFevers did not jected by to cross-examination both Cannon an at trial. LaFevers ad such instruction previous in the trial. The trial and LaFevers consistently mits that has held Court un- declaring not err in Madden court did self-explanatory that “reasonable doubt” is admitting previous available and her testimo- error,33 any it ar instruction on but ny. that, gues by analogy, the term should be just de

defined as terms of an offense are VI, jury. incorrectly claims Proposition In LaFevers con fined for a admitting if defined the definition must trial court erred in the term is tends the correct, term is Hawley during the au be so failure to define the photograph of taken log fundamental error. This does not follow topsy. proposition This has a somewhat con premise that an photographs ically from the instruction fusing title. No showed La- photographs given to the must be accurate.34 autopsy procedures. In all authority sug- persuasive body Fevers offers no had been cleaned with saline solution Louisiana, - U.S. -, State, 388, (Okl.Cr. 113 S.Ct. 391 34. Sullivan v. 29. Davis v. 753 P.2d Roberts, Castro, 401; 1988); 2078, 2081-83, (1993) (finding v. 745 P.2d at Ohio L.Ed.2d 182 124 2543, 56, 74-75, 2531, 65 100 S.Ct. required to instruct on mean that courts are not (1980). L.Ed.2d 597 constitutionally ing defi doubt but of reasonable harmless). cannot be The Su cient instruction 68, (Okl.Cr State, v. 661 P.2d 70 30. Henderson recently in the preme became enmeshed .1983) . pattern jury tangled instruction defini web of State, (Okl.Cr. California, ultimately v. 735 P.2d 570 31. Vuletich tions in Nebraska State, 1987); Lavicky 1238 v. 632 P.2d holding likeli that there was not reasonable (Okl.Cr.1981). juiy that the understood the instructions hood proof. conviction based on insufficient allow 2403; State, O.S.1991, § Mitchell v. 884 812 32. 12 California, - v. Nebraska and Sandoval Victor Williamson, (Okl.Cr. 1994); P.2d -, 1239, 1248, -, U.S. incorrectly suggests that P.2d at 400. LaFevers opinions A review of those L.Ed.2d 583 outweigh substantially prej probative value must refusing to allow confirms this Court's wisdom a defendant. udice to gyrations. such definitional (Okl. 659 P.2d 33. Underwood Cr.1983); Templer v. 1972). (Okl.Cr. trial, present- its have been reconsider second could gest that Court should mitigat- proposition stage is de- first or previous decisions. This ed in either second Upon these alle- ing nied. evidence. examination meet set forth gations fail to the standard above. INEFFECTIVE ASSISTANCE OF COUNSEL argues “ample” evidence showed VIII, Proposition psychosis. drug-induced from he suffered he was effective assistance claims denied only at trial which The evidence introduced The test for ineffective assistance counsel. testimony supports this claim is Hawkins’ (1) attorney’s per of counsel is whether an crystal said he’d been on formance is so deficient that the defendant days speed for three four before guaranteed did not have counsel as that he told crime. LaFevers’ contention (2) Amendment, deficient counsel’s Sixth methamphet- using he’d trial counsel been performance created serious as to errors so amines, marijuana, quaaludes, and had and trial with deprive the defendant of a fair week, slept a in the not is not reflected cases, capital there must reliable results. 1 notes record before Court. LaFevers that, probability absent er be a reasonable requested the first that before trial LaFevers rors, concluded the the sentencer would have psychiatrist testify regarding a the effects aggravating mitigating of cir balance and state, his determines of PCP on mentаl but equal not cumstances did a death sentence.35 merely completely that he failed to show strong presumption There that counsel’s is sanity would be an issue at trial and thus was professional the defendant conduct was and appoint- psychiatrist to have a not entitled that coun presumption must overcome any again suggest LaFevers fails ed.37 strategy. equalled trial sel’s conduct sound here, showing certainly such and on (1) coun appeal this Court will consider On counsel was for not record not ineffective challenged facts of the sel’s conduct on the if requesting appointment. such an Even (2) time, at ease as viewed ask whether any support- could show evidence unreasonable, professionally the conduct was claim his but ing such a cited cases mention (3) so, and, if will the error ask whether drug-induced psychosis turn on do not jury’s judgment.36 affected support argument.38 not his do LaFevers claims that trial counsel appends to his two documents by failing to advocate cause failed his support proposition. These doc- brief to present mitigating relevant evidence part appeal not uments are of the record on

probably would have altered the outcome of cursory no (1) but a review offers LaFevers had the case. contends counsel “A” relief. Exhibit Abuse is Substance suffering from available evidence that he was (SASSI) Screening Inventory evalua- Subtle drug-induced psychosis at the time of the (2) crime, prepared January before the along drug-abuse psycho tion with depen- logical profiles taken the time of the second trial. This indicates chemical about insane; 668, 687, longer Washington, 35. v. defendant determined to be no Strickland (1984); temporary Coleman condi 104 S.Ct. L.Ed.2d 674 defendant had recovered from State, (Okl.Cr.1984). drug-induced probable psychosis); v. 693 P.2d 7-8 Munn tion of (where (Okl.Cr.1983) de 658 P.2d 482 v. (Okl.Cr. Miller drug-induced psychosis person had fendant 1988). sane, ality but and where disorder was held insanity plus improper ques evidence of State’s PCP, 37. LaFevers 1 referred to which is not insanity tioning compelled modifica sentence quaa- crystal speed, methamphetamines, same (4th tion); Cir. Roach v. Martin 757 F.2d 1463 ludes, marijuana. retarded, 1985) (where per had defendant was Louisiana, sonality pleaded guilty, disorder counsel U.S. 38. Foucha drug- investigate (1992) failing (holding not ineffective for that in 118 L.Ed.2d 437 psychosis expert examined defen hospital found induced since of release of defendаnt the context competent time of and declared guilty by insanity, cannot dant him reason of the State trial). danger poses if and at commit defendant until he no offenses history years drug professionally to be or affect dency with a unreasonable jury judgment. s characterizes LaFevers as alcohol abuse and provides lengthy list of While it

an addict. ISSUES RELATING TO PUNISHMENT light on La- substances it sheds no abused drugs ingestion Fevers’ at the time of the LaFevers raises thirteen re issues psychological crimes. Exhibit “B” is a evalu- exclusively stage lated to the of his second January long- It stituting continuing society; a threat to and have affected the outcome of the case. At (3) pur the murder was committed for the depicts Exhibit “A” LaFevers as a trou- best pose avoiding preventing of a lawful arrest early jury bled addict since his teens. The prosecution. “crystal speed” heard Hawkins’ evidence of argues Proposition in and evidence that LaFevers had been drink- LaFevers Mate, ing specifically improperly in at the Check and was VII that the trial court erred unadjudicated allowing instructed that he under the influence of evidence of crimes jury. drugs alcohol and at the time of the crime. and bad acts to be submitted to the Martin, psycholo- stage in the Like Roach Roach v. a Second evidence admitted to show aggravating continuing gist examined LaFevers before trial and circumstance of immature, poor prior judgment found he was with threat included: to the crime LaFevers disorder, Hawley’s personality a but sane. Given had been to house and threatened and counsel, her;39 in the evidence available to trial to return and rob after trial, pursue drug-induced and another inmate failure to a defense of first LaFevers him 22 times psychosis, mitiga- or to offer that evidence in went after Cannon and stabbed tion, appears prison; yet in in another to be the result of sound trial inmate, strategy. Although might pru- inmate a third Death Row it have been stabbed Coleman, library present mitiga- prison A B in in a alterca dent to Exhibits Charles tion, tion, struggled during in LaFevers also counsel called ‍‌​‌​​​​‌​​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌​‌​​‌​‌‌‌​​​‌‌‌​‌​‌‍seven witnesses which unadjudicated prison guard. in These stage and thirteen witnesses the sec- with a first place before LaFevers’ sec stage, including LaFevers’ mother and incidents all took ond adjudicated forty- ond trial. LaFevers’ actions son. The record shows counsel filed motions, objections, supported aggrava a the Paden house also this five two formal that “plea” jeopardy ting after for- circumstance. LaFevers concedes special of former unadjudicated arraignment has held offenses mal and before trial. Counsel this Court support finding to a that a objections and motions are admissible made numerous aggravating circumstance acquitted continuing of threat throughout trial. LaFevers was showing the Any exists. relevant evidence charged sex This Court cannot offenses. commit probability that the defendant will say performance was so deficient as counsel’s any transcripts prejudicial” submitted to this Court. evi- match 39. LaFevers calls this "the most presented, cites in his brief do not dence but the support guidelines determined that sufficient exist to future acts of violence would continuing finding a defendant be a prosecutorial that will direct discretion.44 LaFevers persuasive threat.40 He offers no for arguments reason new offers no which would en- previous this to its deci- reconsider courage the Court to reconsider these deci- sions.41 sions. X, Proposition In LaFevers claims XIII, Proposition LaFevers con failing to trial court erred in instruct the in failing the trial court erred tends lifе,

jury presumption on the of an instruc jury option it had the struct unsuccessfully requested. tion In regardless return a life of find sentence its jury struction No. told the LaFevers was ings aggravating respecting mitigating presumed charges innocent made unsuccessfully circumstances. LaFevers re Particulars, if they the Bill of and that had a quested jury an they instruction that did guilt doubt as reasonable to his should noncapital impose regardless return Later have to death of its find a sentence. instruc correctly ings. proof may given tions set forth the burden of A be life sentence notwith procedures weigh jury aggravating and the standards standing finding cir ing aggravating mitigating outweigh mitigating evidence. cumstances which cir ignores cumstances, the sizeable number but such an is not instruction rejected eases in Court has required.45 required Instruction No. argument, and offers reason for no the Court impose a noncapital sentence if it had those reconsider decisions.42 guilt reasonable doubt as to LaFevers’ in the In charges Bill of Particulars. Proposition XII that struction No. 7 it was told the penalty gives pros- Oklahoma’s death scheme imposing sen authorized consider death ecutors in seeking unbridled discretion death upon finding aggra tence a unanimous LaFevers fails to sentences. address vating outweighed mitigating circumstances previous thorough re- Court’s discussion and ignores many jection argument.43 circumstances. LaFevers of this This Court re- rejected cently again again cases in has addressed issue which Court See, State, (Okl. part e.g., explain v. which in 40. Malone 876 P.2d 707 information formed State, sentence). Cr.1994); (Okl.Cr.1991), Berget v. for death 824 P.2d 364 basis denied,- U.S. -, 124, 113 S.Ct. cert. 121 State, (1992); Mitchell, 1206; 79 v. P.2d Malone, L.Ed.2d Sellers 809 42. 884 P.2d at P.2d 876 denied, 912, (Okl.Cr.1991), cert. 713; State, 79, (Okl.Cr.1994), 676 502 U.S. 112 at Allen v. 871 P.2d 103 310, (1991); — denied, U.S. -, 370, S.Ct. v. 116 L.Ed.2d 252 Johnson 115 rt. S.Ct. ce 130 State, 1982). (Okl.Cr. State, (1994); P.2d 815 LaFevers 665 322 Brown v. 871 L.Ed.2d State, State, my 56, 867 (Okl.Cr.1994); cites (Okl.Cr.1993), dissent Paxton v. P.2d 1309 73 Trice v. 853 P.2d - — denied, -, 203, (Okl.Cr.1993), denied, rt. U.S. 115 P.2d 215 rt. ce ce 227, (1994), U.S. -, 638, (1993); S.Ct. 130 L.Ed.2d 153 which dis 114 S.Ct. 126 L.Ed.2d 597 State, 993, agrees unadjudicated (Okl.Cr.1987), with the use of offenses v. P.2d Johnson 731 1004 denied, 878, 35, continuing support I threat. While continue to 108 rt. 484 U.S. S.Ct. 98 ce evidence, (1987); State, disagree the use I with of such have 167 Walker v. 723 P.2d L.Ed.2d denied, 273, (Okl.Cr.1986), converting yet my been successful in col 284 cert. 479 U.S. 599, 995, (1986). leagues. 600 107 S.Ct. 93 L.Ed.2d State, 368, (Okl. 43. v. Romano 847 P.2d 392-93 Supreme cited Court do not LaFevers’ cases - -, 2004, aff'd, Cr.1993), 114 U.S. S.Ct. support argument that the nature of the sec his (1994). 129 L.Ed.2d 1 prevented stage proceedings him ond from rebut ting allegations unadjudicated crimes. Wood State, 301, (Okl.Cr. Carolina, 280, 44. Walker v. 887 P.2d 320 son v. S.Ct. North 96 Peters, 1994) (determining Silagy 2978, (1976) (trier ex rel. v. U.S. 49 L.Ed.2d 944 fact must (C.D.Ill.1989), denied, F.Supp. 713 1246 cert. 498 give particular to the circum considеration 1110, 1024, 111 112 1106 U.S. (1991), S.Ct. L.Ed.2d propensi of the crime and character stances LaFevers, persuasive defendant); Florida, cited is not be ties v. 430 of the Gardner differ). Illinois 349, 1197, cause the Oklahoma and statutes (1977) U.S. 97 S.Ct. 51 L.Ed.2d 393 (where disregarded jury court the trial recom State, 686, (Okl.Cr.1982), defendant death mendation sentenced 45. Parks v. 651 P.2d 693-94 denied, 1155, 800, 103 presentence report did not rt. U.S. S.Ct. based on a have, defendant 459 ce opportunity deny 74 depriving 1003 defendant of L.Ed.2d

309 However, Supreme also noted that to recon- argument and offers us no reason “anti-sympathy” holding sider those decisions.46 instruction precedent, Parks would contravene and re- XIV, jected “anti-sympathy” claim that the Proposition Parks’ jury right claims that the trial court’s Instruction instruction violated his to individualized improperly engendered sympathy 12 No. sentencing. LaFevers’ contention that right his the decedent and denied LaFevers engendered sympathy instructions for Haw- jury’s to the full and fair consideration of jury ley inexplicable, never received as During stage mitigating evidence. the first specifically allowing them to con- instructions jury sympathy was instructed not to let addition, sympathy.48 In LaFevers dis- sider enter into their deliberations. In the second regards ample precedent whеre this Court jury stage, No. 12 told the Instruction rejected argument.49 has stage apply where all first instructions would together appropriate and must be considered Proposition XV stage instructions. LaFev- with the second jury his consti that the instructions violated unsuccessfully requested an ers instruction rights by failing to inform the tutional allowing sympathy for the accused. He re mitigating circum findings regarding that its Brown47, disapproved lies on Parks v. unanimous. La- stances did not have to be “anti-sympathy” instructions. unsuccessfully requested an instruc Fevers mistakenly characterizes that case’s subse telling findings mitigat tion their quent “procedural”. v. reversal Saffle unani ing did not have to be circumstances creat Parks held that the Tenth Circuit had require law does not mous. Oklahoma any exception allow ed a new rule not within finding mitigating circum unanimous review, ing for collateral so Parks could not stances, which would be unconstitutional.50 disapprov from the decision have benefitted authority ignores in which this ing “anti-sympathy” instruction. 339-40; Mitchell, 1206; Malone, 50. Pickens, See, at e.g., at 850 P.2d 884 P.2d Woodruff 713-14; Allen, 102; State, 1124, (Okl.Cr.1993) 871 P.2d at cert. 876 P.2d 846 P.2d 1148-49 State, Brown, 73; denied, - U.S. -, 349, 871 P.2d at Robedeaux v. 866 126 L.Ed.2d 114 S.Ct. State, 417, (Okl.Cr.1993); State, 159, (1994); P.2d 435 Pickens v. 176 844 P.2d 313 (Okl.Cr.1992), Castro denied, 328, (Okl.Cr.1993), - denied, -, 850 P.2d U.S. - cert. cert. U.S. -, 942, (1994); 127 L.Ed.2d 232 (1993); S.Ct. Clayton v. 126 L.Ed.2d 98 S.Ct. (Okl.Cr.1992), denied, Fisher v. 845 P.2d 1277-78 (Okl.Cr.1992), - cert. denied, - U.S. -, 113 S.Ct. -, cert. 125 L.Ed.2d 704 L.Ed.2d U.S. (1993). (1993). 275 argues that this instruction was sаnd- (10th Cir.1988), rev’d v. 47. 860 F.2d 1545 Saffle aggravating cir- instructions for wiched into the 484, 1257, Parks, 110 S.Ct. 108 L.Ed.2d 494 U.S. cumstances, unanimity. required all of which (1990). 415 3-6 do not The record reveals that Instructions 7 unanimity requirements; Instruction touch on victim-impact has led to a 48. Since evidence requires aggravating circumstances and defines modification of this instruction allow- common ing mitigating unanimity; cir- Instruction 8 defines jury sympathy generally, La- to consider the unanimity; In- and does not discuss cumstances argument has become a standard com- Fevers' mitigating specific circumstances 9 lists struction given plaint. was not The modified instruction unanimity; 10 Instruction and does not discuss victim-impact evidence in this case. No issue of unanimously requires jury find at least one the to case, in this and no victim- has been raised unanimously aggravator find that it out- then presented impact at trial. evidence was considering any mitigator the weighs before requires jurors penalty; to Instruction 11 death State, 537, (Okl.Cr. 49. Neill v. 896 P.2d 557-58 aggravator that unanimously and reduce find an State, 1143, 1994); 877 P.2d Revilla require finding writing, written but does not to 1363, (Okl.Cr. 1994); Boyd 839 P.2d mitigators; findings any In- unanimous - or -, denied, (Okl.Cr.1992), rt. U.S. ce again requires verdict a unanimous struction 12 Duvall, (1993); 3005, 125 L.Ed.2d 697 113 S.Ct. penalty, or life im- imposition of the death 635-36; 779 P.2d Fox v. parole. The distinc- J., (Okl.Cr.1989),prisonment with or without concurring) (Lumpkin, specially 578-79 mitigating aggravating denied, factors and ‍‌​‌​​​​‌​​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌​‌​​‌​‌‌‌​​​‌‌‌​‌​‌‍tions between t. cer unambiguous. are clear and circumstances 108 L.Ed.2d consistently rejected argu- penalty procedures sets the has scheme forth Court jury determining punish- ment.51 should use when argues capital

ment in a case.53 LaFevers Romano was wrongly that XVI, decided because Proposition In analysis misguided. underlying its was given jury claims that instructions permitted jurors mitigation the issue of Romano analogized Su- to an Oklahoma mitigating ignore evidence. LaFevers com preme construing comparative ease a plains mitigat that Instruction No. 8 defined statute, negligence where the ease turned on ing “may which circumstances as those be” jury gen- a special precluded whether forms extenuating reducing or moral considered eral LaFevers mischaracterizes verdict.54 culpability argues or blame. He that both Smith and the in Romano: holding jury permissive language gave discretion Smith issue in was whether the statute ignore any potentially mitigating evidence. verdict, required special general itself a distinguish LaFevers fails to cite or the nu Romano held that a sentence death de- merous cases which this Court has deter verdict, termination did not amount to a but “may mined that be” reflects correct analogous general to a verdict. LaFev- constitutional standard and avoids in correctly points out ers that this Court has jury’s duty fringement on determine previously referred to sentence as the death punishment.52 individual verdict,55 that Black’s Law argues Dictionary definition “verdict” as formal XVII, Proposition In LaFevers con jury finding on matters to them submitted statutory requirement tends that the that a for decision means the death sentence jury aggravating specif list circumstances as must be a Here determination verdict. findings of penalty ic fact before the death dictionary inapposite reference because imposed may be is unconstitutional. Okla distinguishes Romano clearly the “sentenc- 1) penalty require homa’s death statutes ing guilt jury verdict” from a true verdict of statutory aggravating a list of circumstances unpersuasive or innocence. LaFevers’ at- accompany jury’s general verdict of tack on Romano’s reasoning offers this Court 2) death; jury aggravating find the must no reason to reconsider this issue. unanimously beyond circumstances a reason 3) doubt; jury spe must able make XVIII, Proposition findings particular questions cific fact on argues aggravating that the circumstance of determining the of fact when existence of “heinous, facially atrocious cruel” is invalid O.S.1991, aggravating each circumstance. jury that the trial court’s instruction to § 701.11. LaFevers scheme jury’s adequately did not discre channel 7, § conflicts with Article of the Okla tion, thereby depriving a fair LaFevers of Constitution, requires homa general which No. reliable sentence. Instruction prohibits any verdicts and law from exactly corresponded In to OUJI-CR requiring trial make courts to direct “heinous, 436, defined atrocious or struction findings particular questions of of fact. La- jury cruel” and directed the to crimes where acknowledges that this Fevers Court has ad by preceded the was torture or victim’s death this and determined that the dressed issue again provision physical abuse. LaFevers fails goes constitutional to the serious determi guilt distinguish the cases in nation of innocence while the death to cite or numerous See, Malone, Romano, State, 715; 384-385; Woodruff, e.g., v. 51. 53. Carter at 876 P.2d at 847 P.2d Mitchell, 1234, (Oki.Cr.1994); 879 1251 P.2d 846 P.2d at 1149. 884 P.2d at 1203. Pickens, 339-340; Revilla, 52. 850 P.2d at 877 Romano, Gizzi, v. 54. See Smith 847 P.2d at 385. 1153-54; Brown, 74; Wil P.2d at 871 P.2d at (Okl.1977). 564 P.2d 1009 liamson, 812 P.2d at 409. State, 1186, (Okl.Cr. v. Davis 665 P.2d 1203 1983).

3H consistently aggravating “continuing of upheld has this the circumstance which this Court affording him aggravating circumstance when so limited.56 threat” without notice and a validity of right to be heard on thе such XIX, Proposition LaFevers In the aggravating circumstance time of “continuing aggrava claims that the threat” interesting argu- (re)sentencing. This is an ting applied circumstance as is Oklahoma but, aggravating circum- ment as all the unconstitutionally vague and La- overbroad. proper, jury stances were found upheld has Fevers claims that this Court this issue is moot. evidence of the alone circumstance on crime continuing that support his contention Proposition argues LaFevers standardless, vague threat is and overbroad. XXI that his sentence must be vacated death This that has held must Court State prosecution” because the “avoid arrest or “present concerning prior sufficient evidence being applied aggravating circumstance is unadjudieated convictions or crimes to show interpreted unconstitutionally in an pattern likely a of criminal conduct that will vague and overbroad manner. LaFevers ar support aggra continue in the future” to this gues aggravating that circumstance is this vating circumstance.57 The common most standardless, authority ignoring which re grounds aggravating for this circumstance from quires predicate separate crime conduct, history including of viоlent include for seeks to murder which a defendant avoid offenses, unadjudicated the facts homi of the aggravating circumstance re arrest.59 This convicted, cide the defendant of which was quires a determination of the state of mind of threats, grounds including lack other defendant, may inferred be from remorse, prevent attempts help, calls Evidence showed circumstantial evidence.60 testimony experts, and mistreatment of Hawley killed because she could was family members. This Court has consistent identify the per and Cannon as LaFevers rejected ly argument in this numerous cases and stole sons who broke into her house her acknowledge.58 not LaFevers does car. XX, challenges In LaFevers Proposition XXII, analysis by Proposition contends sentencing if an Court vacated because aggravating circumstance on which the his death sentence must be imposed pursuant balancing it to a imposing relied in a death sentence is invali- solely upon acknowledges appel- scheme unconstitutional dated. LaFevers based in a proper aggravating under cir- circumstances state which reweighing late certain cumstances, process right sentenc- claims thаt this can- affords due but that, process ing. reweighing using since Oklahoma engage 1994); Revilla, State, 562, State, 291, (Okl.Cr. See, e.g., v. 742 563 876 P.2d 298 P.2d Stauffer (Okl.Cr. 1987) 1152-53; Brown, 72-73; (Opinion Rehearing), on cert. de P.2d at P.2d at 871 877 nied, 1036, 763, Paxton, Ellis, 1301; 108 S.Ct. L.Ed.2d 484 U.S. 98 867 P.2d at Pickens, 867 P.2d at State, 1273, (1988); 862 779 Hooks v. P.2d 1282 1325; Trice, 220-221; P.2d at 850 853 - denied, -, (Okl.Cr.1993), rt. U.S. ce specifically at 339. does not ar P.2d (1994); Clayton 128 L.Ed.2d 490 S.Ct. evidence, gue insufficiency adequate 30; State, 832 P.2d 840 P.2d at Stafford circumstance, including supported evidence (Okl.Cr.1992); Rojem v. contemporane Hawley, prior threats to (Okl.Cr.1988), denied, cert. Padens, surrounding attack and the ous on the L.Ed.2d unadju- crime. Evidence circumstances of the complain that evi does not insufficient supported jury's prison stabbings dicated also aggravating supports this circumstance. dence finding. consistently disagreed I with the have Hawley was beaten in her Evidence showed support unadjudicated use of offenses home, robbed, kidnapped, kept in the trunk of aggravating circumstance. car, car, dragged again, set her from beaten fire, burning, 10 to 15 feet while moved (Okl.Cr. Ample approximately v. 233-34 lived five more hours. 59. Barnett 853 P.2d for Mitchell, 1207; aggravating 1993); supports McGregor, circumstance. at evidence 884 P.2d 885 P.2d at 1385. Malone, 57. 876 P.2d at 717. Mitchell, 1207; 1207; Rojem, Mitchell, 753 P.2d at P.2d 884 Hogan 884 P.2d (Okl.Cr. 1994); at 368. Snow part of the trial liberty and admitted as a process inter- offered a due defendants have not be consid- proceedings and should sentencing, practical a matter court jury in est here. reweigh aggravating cir- ered cannot this Court juries written do not make

cumstances since mitigating circumstances findings of fact on PETITION FOR DENYING ORDER factors what and this Court cannot determine AND DIRECTING REHEARING aggravating cir- jury considered. As the the MANDATE ISSUANCE OF in this case were constitu- cumstances found by jury tried Loyd LaFevers was Winford tional, prop- need not consider Court in Thomas C. Smith before the Honorable osition. County. of the District Court Oklahoma of he was convicted No. CRF-85-3254 Case REVIEW MANDATORY SENTENCE in Aforethought Murder Degree Malice First O.S.Supp.1985, In accordance with O.S.1991, 701.7, § Third violation of (1) 701.13(C), § must determine whether we O.S.1981, of 21 Degree Arson violation imposed of death was under the sentence 1403(A), of a Fel- § After Former Conviction prejudice, any other passion, of or influence stage first of ony. At the conclusion of the (2) factor, the evi- arbitrary whether trial, guilty. jury returned a verdict of jury’s finding aggrava- supports the of dence 1) jury found During sentencing, ting circumstances. heinous, atrocious, especially or murder was record, say Upon we cannot review of 2) cruel; LaFev- probability there was imposed was becаuse the sentence of death acts of violence ers would commit criminal by passion, prejudice, was influenced continuing threat that would constitute arbitrary contrary to 21 factor or other 3) committed society; and the murder was 701.13(C). § O.S.Supp.1987, preventing purpose avoiding or for the of was prosecution. or on and found the lawful arrest The was instructed the murder conviction aggravating sentenced to death for of three circumstances: existence (1) heinous, forty years for arson. incarceration especially murder was atro- (2) cious, cruel; probability or there was a 16,1995, opinion, By May published its criminal acts of that LaFevers would commit affirmed LaFevers’ convictions Court continuing that would constitute a violence now before the sentences. (3) society; and the murder threat 3.14, Rehearing, Rule on a Petition for purpose avoiding or for the committed Appeals, 22 Rules the Court Cnminal prosecution. or preventing a lawful arrest 18, App. According to O.S.Supp.1995, Ch. record, Upon of the we find our review 3.14, Rehearing for shall be Rule a Petition factually substantiat- of death to be sentence only: for two reasons filed appropriate. ed and (1) question of the case That some decisive modification, warranting Finding no error attorney of duly submitted the District judgments and sentences of Court, by the record has been overlooked County AFFIRMED. are Court of Oklahoma (2) with an That the decision is conflict P.J., JOHNSON, LUMPKIN and controlling express decision statute JJ., STRUBHAR, concur. was not the attention of this Court which LANE, J., in result. concurs argu- or in oral called either the brief ment. LUMPKIN, Judge, concurring. propositions in his four would LaFevers raises in the decision but

I concur Court’s B, Rehearing fail to meet the A & at- Petition Appellant’s exhibits hold that Accordingly, brief, in Rule 3.14. part criteria set forth proper not a to his are tached propositions will not be addressed.1 these appeal. The exhibits were the record on — States, opin- in Davis v. United mistakenly suggests Court’s decision the Court's 1. LaFevers -, L.Ed.2d 362 Supreme contrary U.S. to the United States ion is THE ORDER OF IT THEREFORE IS for Rehear- that the Petition

THE COURT is The of the Court ing DENIED. Clerk mandate forthwith. to issue the directed IT IS SO ORDERED. A. Johnson Charles

/s/ JOHNSON, A. CHARLES Presiding Judge Chapel Charles S. /s/ CHAPEL, CHARLES S. Judge Vice-Presiding Gary Lumpkin L. /s/ LUMPKIN, L.

GARY Judge F. Lane James /s/ LANE, JAMES F. ‍‌​‌​​​​‌​​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌​‌​​‌​‌‌‌​​​‌‌‌​‌​‌‍Judge Reta M. Strubhar /s/ STRUBHAR, RETA M.

Judge BRUCE, Appellant, Doris COMPANY, CASUALTY EMPLOYERS Inc., Lloyd’s, Employers of Texas and/or Employers Insurance National and/or Employers Company, National and/or Corporation, Appellees. Insurance

No. 84967. Oklahoma, Appeals Division No. 3.

2,May State, 897 P.2d biguous LaFevеrs v. statement. interro- determined the In fact this Court - conformity (Okl.Cr.1995). with Davis when gating officer acted clarify his am- questioned LaFevers in order to he ation from notes law, penal trial. Under Oklahoma death says La- standing drug and alcohol use and may ty imposed only if be certain limited average intelligence, poor Fevers has below aggravating circumstances are found. Un judgment, average impulse control and reali- murder, person less a or the who committed ty testing thought with no disorder and that murder, falls within one or more of the may personality have a disorder. The he carefully statutory aggrava circumscribed sensitivity family report notes LaFevers’ circumstances, ting penalty may the death children, psychological bonds with his among possible not be considered sen along suggesting with test results that his case, tencing options. In LaFevers’ “resentments” manifest themselves accu- alleged aggra State and the found three family sations and violence toward members. (1) vating circumstances: the murder was (2) heinous, atrocious, cruel; especially Despite arguments, impos- it LaFevers’ is probability there existed that LaFevers to read these exhibits and believe there sible criminal con would commit acts violence probability they reasonable would

Case Details

Case Name: LaFevers v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 21, 1995

Citation: 897 P.2d 292

Docket Number: F-93-324

Court Abbreviation: Okla. Crim. App.