*1 AFFIRMED. TRIAL COURT the landowners of interests best Additionally, to do so. district V.C.J., and the water WATT, HARGRAVE,C.J., provi impose would approach SUMMERS, territorial OPALA, a LAVENDER, agreement loan district's water of a WINCHESTER, JJ., concur. sions BOUDREAU, non- Board on Resources the Water KAUGER, parties to are not J. dissents. who landowners customer approach an Finally, such contract. of an exclusive granting in the result sewer services water right provide of a wa boundaries geographical
within V, Article of contravention ter district Constitution the Oklahoma of
section County holding in Comanche this Court's City Law 1 v. No. CR 24 District 2002 OK Rural Water of (Okla.1972). ton, P.2d 490 MURPHY, Appellant, Dwayne Patrick Lawton, rejected City In14 of an had water district a argument that Oklahoma, Appellee. of a The STATE operation of franchise exclusive geo system within its distribution water D-2000-705. No. preventing a thus boundaries graphical selling water within city from neighboring Appeals of Oklahoma. of Criminal Court reject argument was those boundaries. May portion that a substantial the fact despite ed a funding came from district's of the water loan. Under Administration Home
Farmers 1926(b) of the United States 7, section
title curtailed not be Code,3 "shall services any private of granting ...
limited such within services for similar
franchise This loan...." of such during the term area of Article section under held that Court the Oklahoma Constitution Oklahoma grant an power to was without
Legislature City district. to water franchise exclusive Further, Lawton, P.2d at 493. not be evaded prohibition constitutional the Farmers contract with
by entering into a Id.
Home Administration. authority constitutional 15 The same City inAs this matter. apply
result Legisla to our Lawton, not ascribe "we will § Art. to violate
ture an intention Id. Section Constitution." Oklahoma District give the Water
1085.36does geographical its within franchise
exclusive
boundaries. Cir.1988); Water City v. Bear Creek Madison statute and this federal cites Water District
3. The
Cir.1987).
(5th
urge
As the trial
applied it to
have
878 *3 701.7(A). 0.S.8upp.1996, § violation of 21 jury The found the existence of aggrava two ting cireumstances: that the murder was es pecially heinous, atrocious, cruel; and that probability there is a Appellant will commit criminal acts of violencethat would constitute continuing society. set death, punishment judge and the trial sentenced in accordance with this verdict. appeals.1 now August living *4 Patsy Jacobs, alleged his "common-law" wife. previously Ms. Jacobs had lived for years Jacobs, three George the victim in case, this by Appellant and had a child him. Patsy argument and bad an about Jacobs a couple days before Jacobs was murdered. Appellant Patsy told going get that he was to family Jacobs and his one one. ¶ 3 August On George Jacobs and his cousin Mark spent Sumka most of the day drinking driving and Okmulgee, around Okfuskee, and Melntosh They counties. re portedly drank two whiskey bottles of and Bowen, Tulsa, OK, James C. day. numerous Richard Ler- p.m., beers that At 9:80 blance, Hartshorne, OK, Henryetta Appel- headed to a Counsel for bar Jacobs's f lant at trial. Dodge passed Sedan. Jacobs was out in the seat, (Jacobs's back and driving. Sumka was Barris, Attorney, Rob Assistant District post mortem blood aleohol level would later OK, Cozzoni, Okmulgee, Philip Assistant Dis- .23) be determined to be Eufaula, Attorney, OK, trict Counsel for the State at trial. ¶ 4 passed Appellant Sumka and Jacobs driving opposite he was in the direction. Presson, Jackson, Steven M. Robert Wade stopped, Appellant Both cars and up. backed Norman, OK, Appellant Counsel ap- for on Appellant get told Sumka to kill car peal. Meanwhile, occupants out. Appel two Edmondson, Attorney W.A. Drew General car, Billy Long lant's King, and Kevin exited Oklahoma, Timothy Gifford, J. Assistant Alarmed, away. the car. Sumka drove General, Attorney OK, City, Oklahoma Coun- appeal. sel for the State on ¶ 5 Appellant companions pursued and his Appellant's Appellant
Sumka car. OPINION eventually stop. able to foree to Sumka At point, Appellant's someone from car ar LUMPKIN, Presiding Judge: began hitting rived at Sumka's car and Ja ¶ 1 Appellant, Dwayne Murphy, Patrick cobs. by jury was tried in the District Court of ¶ 6 County, car, Mcelntosh Case got Number CF-1999 out of Sumka his but was 164A, Murder, Degree stopped by Appellant, convicted of First going who said he was pellant 1. supplement Petition in Error was filed in this has also filed a motion to August Court on 2000. His initial brief was appeal application evidentiary record on 3,May filed on 2001. The State's brief was then 3.11(B)(3)(b), hearing, pursuant to Rule Rules of August filed on 2001. The case was submit- Appeals, the Oklahoma Court Criminal Title September ted to this Court on 2001 and oral App. Ch. argument February Ap- held on King's group then traveled to him. they had done what do to Jacobs George, Jr. was house, son hitting where Jacobs's men two the other hear Sumka do going to he was Appellant said staying. "that was told Sumka Jacobs. King's But son. thing to Jacobs's Appel- same know, passed out." he's you enough, and thwarted the house out of Jacobs, Long came mother came while over lant went inside, rest of and the King plan. then went in the nose. Sumka hit Sumka over then burned group left. a ditch. out of drag King Jacobs saw incriminating clothes. bag of momentarily, about one fled Sumka home that arrived five When After the assault. from yards hundred George Ja Patsy night, he told Upon his return. minutes, he decided had sliced and that he killed told cobs had been cohorts his two arrival, Ap Patsy testified kill throat and stomach. they his anything if he said Sumka had cut off Jacobs's said he pellant also King then smacked family. his him and anymore," anyone in reportedly fuck jaw. Appellant "he won't genitals so in the Sumka to hit Sumka Long not including her. King and
structed again. arrested, he ad Appellant was 14 When and testi in the ribs kicking Jacobs mitted then testified Sumka also admitted cutting penis. He holding cles and he was folding knife took *5 He during attack. (The groan hearing police later Jacobs into the woods. it tossed ditch; He was in a left alive knife.) was said Jacobs recovered saying, "Oh." breathing and ¶ 9 was to where Jacobs ran over Sumka that, after testified A state eriminalist "barely breath was Jacobs in a ditch. laying severed, he was penis was the victim's up in an drove Fields then ing." Anderson road, where his dragged to the side wrong with the was what and asked other car on cut. Bloodstains (He fleshy neck and chest a noticed also guy in the ditch. in an had been he road.) shoes indicate Jacobs's The men told object blood The the attack. part for upright position began ap They was drunk. him Jacobs the cause described away. examiner car, medical drove but he Fields's proaching cutting from the various loss as blood back police and drove phoned then Fields genital and neck wounds, primarily gone. Jacobs Everyone was to the scene. not immediate. Death was breathing. wounds. barely and was lay ditch in the four to between in somewhere to death bled stomach across Jacobs's a slash found Fields longer. He minutes, perhaps even cut, twelve his face had been throat His and chest. frac multiple lacerations cut off. described had been genitals bloody, and his face, neck, to his suffered the victim tures instructions, ¶ 10 Sumka Upon Appellant's chest, and abdomen. Long, and Appellant, scene had left the ride, Appellant told During the car King. DIRE VOIR RELATING TO ISSUES throat and they had cut Jacobs's Sumka ¶ 16 Appellant eight, proposition In King told privates. his had eut off chest and a to ensure failure the trial court's genitals claims Jacobs's they had stuffed Sumka appellate adequate record complete and then told mouth. into Jacobs's rights," his "constitutional violates review he their clothes because off everyone to take fair trial. process a to due presumably them. goingto burn and/or tran voir dire reporter's court claims the He home of later went group The jurors' inadequate because scription was cousin. Taylor, Appellant's Mark He times. identified were not names killed Jacobs. Taylor he had told in this recurring problem a this is claims throat, stomach cut Jacobs's said he had county. off," had nuts and his had his dick "cut recurring is a or not there mouth, Whether and had genitalia into shoved his County regard to in Melntosh problem a head like stomp on the victim's tried to we cannot reporters, court practices of its pancake. TRIAL FIRST STAGE can, however, ISSUES say. address whether or constitutionally significant there was five, proposition 21 In Appellant claims a problem concerning the record in gave custodial statement he after his arrest trial. right violated his to counsel. He claims the suppressed, statement should have been points significant to "two by admitting the trial court erred it at questions" that arose at trial as a result. following hearing the Jackson v. Denno2 held First, impossible it to discern claims is admissibility. on its hearing, juror from the record whether the who judge Appellant voluntarily found persons "knows that of Indian bloodline react right waived his to counsel. knowingly differently jury. to aleohol"remained on the ¶ 22 Appellant specifically points to Second, impossible it was to discern whether transcript excerpts interrogation of his juror background has a medical who which he seemed to have been confused jury. remained on the about whether or not he was entitled to an ¶ 19 However, we find these claims are attorney, going whether or not he was to ask agree without merit. we tran- While attorney, for an and whether or not he could seript certainly been lot more have speak attorney pres to the officers with an detailed and clear than it is-and the lack of ent. specificity possibility could create the of a example, For receiving after the Mi constitutional violation some future case- warning being randa if asked he desired here, we have no such concerns. The record officers, speak police stated, juror that the who had shows concerns about "Well, I right can't I answer now. don't Indian bloodlines was "Ms. Davis." While this, know gonna this I'm not for sure if I'm pool there were two Ms. in the Davis's attorney." police have an Ap then told ie; prospective jurors, Kymberly Davis and pellant, your right attorney. "It is to have an *6 Davis, Teresa both were removed from the you you Do want one or do want to talk to jury by through peremptory the State chal your you us? It's choice. Do want an attor lenges, peremptory first and fifth State's asked, ney yes "Well, Appellant or no?" can Therefore, challenges. Appellant's concern ya'll attorney I still talk to and still have an juror defense, by that was removed present?" you The responded, officers "Do thereby "arguably" creating an ineffective want, you attorney? want an can You have assistance claim is without merit. not, attorney. you right an If talk ean to us your you now. It's I choice. can't tell what ¶ 20 Furthermore, ju respect to the mean, mean, Appellant replied, 'to do." "I I background, Appel ror who a medical had (sic) your saying I can't do both?" The juror claim lant's bare that this unidentified said, Eventually you officer If "Yeah. sure. "might pose problem a or benefit attorney, get you attorney. want an we'll an parties" specific enough is not to survive (sic) your saying." If what that's judicial assuming, arguendo, review. Even exchanges Ap Similar continued until counsel, that defense with the knowl armed eventually pellant agreed police to talk to the edge potential juror that this had a bache attorney present. signed without an He then degree laboratory technology lor's a waiver to that effect. prior experience diagnostic with a medical company, challenge made the decision to We see no violation of challenge juror serving not that from on the right constitutional to counsel from these jury pool, we find such decision would not transcripts testimony given from have amounted hearing. to ineffective assistance. the Jackson v. Denno Like Dennis 23, 277, v. error, hypothetical a Such which has no bear trial, ing Appellant's proposition entirely on the outcome of the will not rests on his Simpson ability get agree mandate reversal here. .to that his ¶ 13, 690, P.2d OK CR vague police and noncommittal statements to 2. 378 U.S. LEd.2d 908 however, cross-exsamination, ¶ 29 During right to coun his invoked somehow officers about a Ms. Jacobs asked counsel do defense However, his statements find we sel. had made about she statement ambiguous handwritten level of reach "not even murder,. De days after course, three or four counsel, and, police are request for Ms. Jacobs specifically asked counsel faced fense when stop questioning required to not Dennis, ad 1999 about that her statement request." portion ambiguous
with an on the Appellant had (constru fight she dressed ¶ 6, at 279-80 P.2d OK CR In the murder. night Thursday before States, 512 U.S. v. United ing Davis (1994)). statement, mentioned apparently L.Ed.2d 362 Ms. Jacobs 114S.Ct. her fight to do with had part of the that seven, Appellant proposition George Jacobs relationship with previous rights were vio privilege marital claims his frequently fought Appellant that she wife, Patsy Ja common-law lated when appears defense It George Jacobs. about him.3 He testify against cobs, made to was do highlight attempting to counsel was barring Ms. ruling sought he notes that dispute. of this mestic nature just argued testimony, was which Jacobs's redirect, counsel had after defense 30 On testifying at began she before regarding Ms. Jacobs's door opened the motion, apparently this judge overruled statement, Ms. Jacobs prosecutor asked similar had made that on the basis "in to her had said about what those mat parties as to third statements and the Jacobs George regard to Jacobs testified. which Ms. ters to point, this argument?" At family during that that specifically complains Appellant had told that stated Ms. Jacobs motive, be provided testimony Ms. Jacobs's Jacobs, get George going to her he that only who testified one was the cause she brothers, George's sons two George's "get" the going to Appellant had said lodged no by Defense counsel one." "one family "one one." victim's and the victim statements, he did ask but objection to these other witness points out that "Inlo again during recross. statements about those damaging extremely testify Here, again admitted Ms. Jacobs statement." victim, kill the had threatened pointed out aptly as the State But previously, issue argued this same had about issue, it was arguments on during oral her Ms. Jacobs Appellant had told elicited counsel, who defense together with get back out and could move direct During Ms. Jacobs's *7 testimony. this if so George she desired. Jacobs questions examination, asked her the State circumstances, any ¶ 31 these Under made after regarding statements viola respect to the with allegation of error that similar that were killing, statements the waived, for was privilege4 of a marital others. tion he made to marriages." ceremonial law and to common hearing, mo- preliminary a similar During 3. the 272, ¶ 4, State, 765 P.2d 1988 OK CR setting, Blake v. the by Appellant. In that raised tion was Privileges, McKinney, (quoting K. Appellant and stipulated the fact to State However, (1979)). before Okla.L.Rev. but ar- law common are spouses, Jacobs Patsy privilege, advantage one of this can take one Jacobs was essen- told to Ms. gued was that what convincing evi prove, by clear par- must first things told third tially same the dence, law mar of a valid common the existence finding law of a common upon the Based ties. agreement actual mutual riage. an Judge This includes ruled in District marriage, Associate the wife, a spouses to be husband the be between saying issue could Appellant, the favor of relationship, relation an exclusive permanent Judge Taylor. As a before time at a later raised result, wife, as man and ship-proved cohabitation to to call Ms. Jacobs declined the State marriage trial, hold themselves parties the the to hearing. At preliminary testify at Blake, 1988 OK and wife. publicly as man out existence of specifically concede the State did not at 1225. Whether marriage. 765 P.2d CR law a common meets this bur presented in this record evidence we do not need question of fact proof is a den of 0.$.1991, at 12 privilege, set forth 4. marital of the issue. Appellant's waiver to types address due between § distinction 2504 "draws no to ensure here we do set it forth However, under marriage, as was true and, therefore, prior complete record. law, apply equally privilege would common counsel, saying they bleeding by "oh" left him not was the when defense being process bleeding admitted into the side of the road. The of this evidence source minutes, to death took as little as four This was a matter of defense but the record. possibly more than twelve. There was strategy purpose showing testi- for the mony genitals placed that his severed of a heated marital this crime was the result and, true, point, into his mouth at one if dispute, just act. not some random may victim still have been alive after this SENTENCING STAGE ISSUES point, genitals for the were found at a dis- body. tance from the There was also testi- ¶ 32 proposition, Appellant In his first mony upright that Jacobs bad in an been law, was, insuffi claims there as a matter of position point, at one for blood was found on support cient evidence admitted at trial top of his shoes. The medical examiner heinous, atrocious, aggravating or cruel that, although testified the victim had a blood this court to abandon cireumstance. He asks .28, person alcohol content of a normal reviewing for the suffi a deferential standard function, impaired, but still able to at this ciency aggravating circum of evidence of level. stance, arguing we must use de novo review. jury He further claims the instructions did accept Appellant's We decline to de adequately jurors they inform must plea. Accordingly, movo review we find the necessarily find either torture or serious evidence admitted when viewed support ag- physical abuse order to light most favorable to the was suffi gravator. beyond cient find a reasonable doubt that heinous, especially the murder was atrocious argument, The crux of or cruel. Black v. however, is that the evidence of torture was Furthermore, "nothing, because there was ab insufficient instructions, whole, accurately taken as a solutely nothing, in the record to show that applicable stated the law. (Jacobs) consciously injury aware of the 14). Brief, being page (Appellant's inflicted." proposition, Appel his second heinous, atrocious, disagree. Appellant told the lant claims the or cruel attack, police groaning during cireumstance is unconstitutional alive, breathing, ly vague and that he was still and overbroad. He claims that due Appel- years with the for and had a child with Ms. Jacobs testified that she had known victim years lant for six or seven and had lived with him him, she denied had never been in a mar- they time, years. riage relationship, for five and a half Prior to that she common law or otherwise. However, murder, years following three and had the victim's Ms. Ja- had lived the victim for ten-year daughter George had a old While cobs had submitted a claim for Jacobs's him. Appel- expenses Ms. Jacobs testified she held herself out as funeral victim of crimes coordina- George common law wife and was in that relation- tor that she was Jacobs's com- lant's indicated ship August specific she was mon law wife. Ms. Jacobs testified that less than her, prepared out document had been but she about what had done to hold themselves changed description had not the common law stating, husband "We wife, common law things, yeah, submitting done a lot of that common law before it. *8 Beyond lengthy and a the cohabitation few do, wife's bank accounts and-I've used his last facts, any longer, supporting She did not use his name other scant the record is void of name." regarding evidence the existence of a common however, and the time she recalled ever only example, having Appellant's marriage used name was two or three law at the relevant time. For jointly-held purposes getting property, months before the there is no evidence of in- Actually, always policies, specific telephone listing. on bank she had surance information Jacobs, accounts, wills, records, adoption "gone by" filings, the last name of which was tax relationship referring apparently through her to each other as husband obtained documents wife, party perceptions the with the or third victim. testify regarding specific Ms. Jacobs did not are, however, was married. There two couple agreement Appellant in which Ms. Jacobs is identified she and had reached re- defense exhibits wife, Appellant's garding relationship. law but these docu- their There was some evi- as common one, relationship rocky legal proceedings and a ments arose after had com- dence the Moreover, strong Appellant's suggestion actions were moti- menced. described Ms. Ja- interviews, girlfriend during by jealousy relationship not his vated over Ms. Jacobs's cobs as his Although the Ms. Jacobs had lived wife. victim. 884 constitution jury instruction is ju- applicable because in Oklahoma is violated
process al, "a correct statement vague, "that informed not specifically not ries are 15, law"); atrocious, aggravating Wackerly cir- v. cruel heinous, or denied, involving 1, tor- 532 U.S. ¶¶ 50-51, crimes cert. limited is cumstance (2001) they are 1976, abuse" 768 physical 1028, 149 L.Ed.2d 121 S.Ct. ture or serious proba physical existence of a (finding phrase "the for "serious provided definitions not however, admits, He "torture". erimi- or commit abuse" defendant would bility that the rejected consistently this constitute a has that would of violence this Court nal acts this and he asks appeals, capital in claim society" is clear and continuing threat decisions. those to reconsider definition); Rogers require further Court does 959, 8, ¶ 40, P.2d 890 OK CR v. 1995 ¶ 37 us that not convinced has 312, denied, 919, 133 116 S.Ct. 516 U.S. cert. erroneously resolved prior decisions our (1995) has (noting the Court 1999 OK v. L.Ed. 2d 215 e.g., Alverson issue. See 54-56, 983 516-17, 498, cert. ag- P.2d 21, ¶ rejected the notion that consistently CR 820, all-inclusive.) 145 denied, 120 S.Ct. U.S. 528 or gravator is standardless (2000)(finding 2d 4- OUJI-CR 690 continuing threat L.Ed.2d to find the continue We constitutional, sufficiently limiting, and constitutionally applied in Okla aggravator 73 is is State, 1997 OK CR Le v. self-explanatory); homa, and, constitu specifically, was more denied, 524 cert. P.2d in this case. tionally applied as to 141 L.Ed.2d 118 S.Ct. U.S. reliance on Jurek Additionally, this Court's (1998) torture notion that (rejecting the misplaced. not been has needs further defini physical abuse serious proposition, Appellant fourth In his jury was tion). find thusWe evidence admitted impact victim claims the atrocious, heinous, on the properly instructed constitutionally per is trial exceed what and that circumstance aggravating cruel offense, missible, ie., it "characterized not offended. process was due pun recommended perpetrator, proposition, Appel third In his ishment", deprived him of a fair and thus continuing Oklahoma's lant claims process under United trial and due unconstitutionally is stance5 ciream Supreme Court's States Constitution pro due and violates vague and overbroad Tennessee, 501 U.S. Payne v. decisions He claims catch-all." cess as a "standardless (1991) 115 L.Ed.2d S.Ct. Oklahoma, applied aggravator, 496, 107 Maryland, 482 U.S. Booth v. separate those defendants nothing to "does (1987). claims He 96 L.Ed.2d S.Ct. eligiblefrom death considered who should statute, O.S.Supp. governing Oklahoma's Brief, (Appellant's not." should those who 984(1) interpretation 1998, § and this Court's 28.) "probability" the word He claims page He also claims unconstitutional. thereof are pre term that is a statistical in the statute prejudicial far more the statements important narrowing. He also claims cludes hear contained probative and that than are not statute governing from the terms conjecture components. say and points to cases decided He also defined. Texas, 428 relied on Jurek complains of the specifically L.Ed.2d 929 U.S. brief, written, victim following but from misplaced, is that reliance He claims jurors. that were read to impact statements applies the way Oklahoma as the insofar First, Rueban stated the victim's brother aggravator. continuing threat why Appellant would understand could not and that want to kill his brother rejected these repeatedly have taking penalty for get *9 See, the "should in numerous cases. arguments same get not ever pray I that he will life. innocent ¶¶ 9, State, 75- 2001 OK CR v. e.g., Williams - Second, bragging." the jail denied, -, and do 702, out 82, U.S. cert. 22 P.3d stated, in (2002) "I believe Frank (finding victim's brother 836, 716 122 151 L.Ed.2d S.Ct. a continu- that would constitute probabil- acts of violence of a specifically, 'The existence 5. More 0.$.1991, § society." 701.12. 21 ing to criminal ity would commit that the defendant
885
eye
any eye
pre-
sentence because no such evidence was
I
an
the Bible.
believe
Third,
830,
Payne,
in
put
the
sented
that case.
501 U.S. at
they
to death."
that
should
833,
887
the U.S.
115 S.Ct.
viewed as
to one
¶ 57 Appellant
any
has failed to show
er
so,
gravating
being
to another. That
we find
rors
counsel that were so serious as to
trial
un
counsel's use of such evidence falls
deprive Appellant of a fair
a trial whose
large
der the
umbrella of what this Court
Washington,
result is reliable. Strickland v.
strategy.
would deem to be trial
Counsel's
668, 687,
466 U.S.
80
respect
Sharp
actions with
to Dr.
do not fall
proposition
L.Ed.2d 674
This
fails.
range
outside the wide
of reasonable assis
¶ 58 In
grave
proposition, Appellant
tance or leave this
his tenth
Court
doubts
regarding
Simpson,
the verdiet or sentence.
claims the cumulative effect of the errors
1994
¶ 55 Second, Appellant's trial counsel was MANDATORYSENTENCE REVIEW failing not ineffective for to attack the consti heinous, atrocious, tutionality of the or cruel 0.8.1991, 701.13(C), § to 21 Pursuant aggravating cireumstance. will not Counsel (1) we must determine whether the sentence failing be deemed ineffective for to raise a imposed of death was under the influence of consistently claim that this Court has held to passion, prejudice any arbitrary or other fac be meritless. v. 1998 OK Battenfield (2) tor, supports whether the evidence ¶8, 15, CR 953P.2d 1128. jury's finding aggravating cireum- 0.8.1991, § set stances forth 21 T7OL12. Third, Appellant claims his failing attempt counsel was ineffective for Turning portion to the second of this jurors. potential to rehabilitate four Howev mandate, found the existence of two er, jurors clearly each of these would-be indi aggravating cireumstances: the murder was they irrevocably cated committed heinous, atrocious, eruel; especially against they penalty option, one could not probability Appellant there ais will commit penalty any assess under cireum- criminal acts of violence that would constitute stances, would not consider all three continuing society. We have Powell, punishments. See OK CR already support found sufficient evidence to ¶ 32, (restating principle 995 P.2d the first cireumstance. jurors prospective willing must be to consid ¶ 61 Regarding aggrava penalties provided by er all the law and second irrevocably punishment committed to one tor, there was evidence discussed option). Harjo crime, killing As in the victim OK CR before the the crime ¶47, 49, denied, 1067,1077, cert. 514 brutal, particularly and there evi- Indeed, neuropsychological report impaired range." Dr. Bianco's We find the sum total of Dr. conclusions, Appellant's neuropsychological perfor- perhaps specif- indicates Bianco's ic, while more enough significantly mance was not ""severe to be classified as is not different from the testimo- impairments, cognitive ny given by Sharp but rather decreases in and evidence Dr. at trial However, blackouts, functioning." according regarding Appellant's Dr. Bian- alcoholic lack of co, control, functioning pos- impulse prior injuries, sugges- decreased head sibly, likely" impaired Appellant "may organ- "even rise to the level of tion that suffer from mild drinking. when he had been But Dr. Bianco was damage", ic and the fact "with Patrick emphatic parts report, particular, got degree less in other of his con- he's no doubt some of cluding damage", possibly relating has a "limited amount of to accidents cognitive "may past. light, reserve" that be more effected had in the its best suffered Taken in report require- when intoxicated than someone who has an aver- is not sufficient to meet the 3.11, age cognitive reserve". He also found that "the ments of Rule Court Rules Oklahoma (2000) neuropsychological testing any Appeals, App. does not show Criminal Title Ch. pattern specific cognitive dysfunction evidentiary hearing. in the and does not warrant an opinion, kill footnote of the Court's there was intended to the victim's dence convincing steps regard. in that more than clear and evidence and took relatives *12 marriage; of common law support the existence sufficient to both find the evidence stipulation by in this there was a the State aggravators. very prosecution there existed a com- following mitigating evi Indeed, in marriage. mon law the State its presented by Appellant: he did dence was argue not Brief filed with this Court did even any significant history prior crim not have against a common law mar- the existence of activity; capacity appreciate inal his riage. criminality of his conduct or conform such disagree I As much as with Court's requirements of the law was conduct to the claim, privilege I resolution the marital alcohol; by influ impaired he was under the conviction on this would not reverse the by emotional disturbance virtue of his ence of Rather, I claim. would resolve this claim dependence; he acted under cireum- alcohol upholding ruling the trial court's in to reduce the crime stances "whichtended Patsy matters about which Jacobs was to alcohol"; he was under the influence of testify protected by privilege. not rehabilitated; cooperated likely to he is be ¶ 3 Although, I would affirm the convic authorities; character; age; his his tion, modify I would vacate and the sentence family history; fact that emotional and heinous, parole to life without because the retardation; he suffers from mild mental atrocious, aggravator or eruel should be relationship formerly had Ms. Jacobs leaving only stricken for insufficient evidence victim; degree he has some of brain continuing aggravator. I injuries; damage, possibly prior due to head attempt reweigh the evidence under poor impulse frequent and his control and I the circumstances of this case because do blackouts. appellate not believe that an court could rea ¶ 63 Upon review of the record and after sonably conclude that would have carefully weighing the circum imposed the sentence if it had not con evidence, mitigating along stance and the heinous, atrocious, ag- cruel sidered alleged appeal, in with the errors we find gravator. factually the sentence of death substan appropriate. say tiated and We cannot imposed being
sentence of death is under the prejudice, any passion,
influence of
other
arbitrary factor.
STRUBHAR, J., in concurs result. Frankenberg, Defendant. Grant J., CHAPEL, part/dissents concurs 96,871. No.
part.
CHAPEL, Judge, in part/dissents concurs part: Oklahoma, Appeals Court Civil disagree completely 1 I with the Court's No. 1. Division privilege resolution of claim. the marital Jan. 2002. This claim was not waived. Counsel April Certiorari Denied objected Murphy Patsy testifying objection
before she testified and the upon privilege.
based the marital Further
more, contrary argument put forth in