Newsted v. State

734 period (3) it years. inasmuch as attacked one count of not to exceed three

moot O.S.1981, 512(1). had count conviction for which he his three can he be § paroled by the Governor. been actively supervised up the maximum holding that was erroneous. asserts this sentenced, term for which he was if the F-84-722,Department of it Corrections decides is in date, in this Plotner v. On — public pa- the best interest of the (Okl.Cr.1986), we recon — P.2d O.S.1981, 512(2). parole rolee. A in § precise issue and determined sidered this conditional; therefore, ap- Oklahoma is an “granting parole that Gover in pellant custody remains the constructive appeal does not a waiver of nor create — meaning of the within the this of Odom pending before Court.” Plotner, General, Attorney supra. fully Because he not —. has sentence, case, discharged on our in the his rights ap- based instant his seeking Court peal filed motion still obtain. appeal from II of dismiss Plotner’s Count accordingly improper hold that it was paroled his he had been conviction because reject appellant’s first rejecting from that count. After merely paroled error because he had been claim, case, we overruled both the instant from that count of the conviction. How- upon upon we and those cases which relied ever, assign- we have reviewed first herein, they pertained as to this Id. issue. ment error on the merits find no opinion It is clear that our herein requiring error reversal modification. faulty premise. pointed on a As

based we Likewise, we have other considered the al- Plotner, regarding parole out in the rule legations petition contained in the for re- in and waiver was reached Odom hearing and find should be denied. (1913). P. 445 Okl.Cr. IT IS THEREFORE THE ORDER OF Odom noted that when an accused is not THIS petition COURT for rehear- “actually constructively custody” above-styled case numbered Id., appeal may not be maintained. be, is, hereby should and the same DE- Okl.Cr. at 129 P. 445. The brief filed NIED. herein amicus curiae Oklahoma IT IS SO ORDERED. Lawyers sug- Criminal Defense Association gests “[apparently parole a loss custody when Odom decided Curiae, 1913”. 5. Amicus Brief of parole

Whether not was treated in 1913 suggested by manner amicus curi-

ae, apparent it is our under current parolee custody.

laws is constructive paroled, only physically If is NEWSTED, Appellant, Norman Lee released, paroled he unless is from one sentence to An another sentence. parole subject lant admitted to condi- Oklahoma, Appellee. STATE of

tions. 57 If an O.S.1981 332.8. §§ No. F-84-474. satisfy fails to the conditions parole, subject his he is to arrest and revo- Appeals Court Criminal of Oklahoma. O.S.1981, parole. 332.9, cation of §§ June 1986. may pardoned An appellant 332.12. be Vote Corrected June 1986. “[u]pon completion only terms parole, conditions of a which shall be the Rehearing July 7, Denied expiration prison maximum date sen- being O.S.1981, tence served ...” Moreover, parolee 332.10. is under the supervision parole

active officer for a

OPINION PARKS, Presiding Judge: Newsted, Norman Lee herein, tried, charged, and convicted in Osage County, the District Court of Case CRF-84-26, No. for the offense of Murder First Degree. punishment His Judgment assessed at death. and imposed by sentence was the District Court in jury’s accordance with the verdict. evening 20, 1984, February On the appellant arrived at Tulsa International air- port. by Larry He hailed a taxi cab driven Buckley, Donnell and asked to driven be appellant apparently address believed they his sister’s. When were unable address, stopped to locate the Mr. Buckley gas Appel- at a station to ask directions. purchased pack cigarettes lant and a Although appellant paid beer. pur- for his chases, money a cashier saw no pulled Appel- lant’s billfold when he it out. lant Buckley stopped and Mr. next at Cal- vary Temple again of God church to ask Appellant directions. asked to use the tele- phone and a call. Witnesses at the appellant church saw building, leave the and saw the taxi cab driver under awn- they at the church. thereafter Soon appellant’s heard loud two noises. sis- ter pick up soon arrived at the church to her pants brother. His were and wet he explained pulled that the driver cab had attempted knife and to rob him. He said he shot taxi cab driver. When house, appellant’s arrived her sister left police. with her children and later called pastor morning The next at the church partially submerged discovered taxi cab in a near parking creek the church lot. Mr. cab, Buckley was found in dead from gunshot two wounds the back of the head. investigation Based on their and informa- Schay, E. Alvin Appellant Asst. Public appellant tion that was wanted Utah Norman,

Defender, appellant. for authorities connection with a mur- mass Gen., Turpén, Atty. there, police Michael C. der Tomilou located at his Liddell, Gentry Gen., Atty. Appellant Asst. Oklahoma sister’s him. house arrested City, appellee. police Buckley only told that he Mr. shot attempt- proven. Mullaney Wilbur, knife crime be victim pulled after him. admitted that he took rob He 421 U.S. 95 S.Ct. 44 L.Ed.2d ed to (1975); Winship, wallet. Evidence showed the victim’s Re 397 U.S. in his possession (1970). had $40.00 90 S.Ct. 25 L.Ed.2d 368 testi- time his arrest. at the all of the elements of his he repeated story fied at trial proven. were crime State estab- Buckley attempted to the victim when shot prima case of lished facie murder a knife. rob him with first, degree by proving, during an homicide occurred armed rob- THE GUILT OF TRIAL STAGE and, therefore, bery, felony fell within murder; second, I. pre- had committed the homicide with error, In his second process meditation. No violation of due court appellant alleges that occurred. failing instruct the that it erred guaranteed by A unanimous verdict is unanimously to the required find that was Const., this State’s Constitution. Okla. committed murder in the 1961, 19. art. In this con- Court § aforethought or degree malice either with that right strued to mean that a verdict robbery dangerous with committing a while guilt charge on a of two of distinct acts issue weapon. regarding The this record rape had reflect a unanimous find- of to in was filed reflects that an Information guilt ing upon specific of based one act the did alleging case that this acts, or on both but not either one afor- premeditated design and malice “with Cody v. 361 the other act. See ... while thought ... in the alternative 307 P.2d committing robbery with a the crime of ... pre weapon, although question without a now this dangerous the before design impression. kill Mr. to effect death” is one of first Unlike meditated Court alleging Buckley. separate This method of alterna there two of- Cody, are not legal fenses, for the same offense Cody tive theories but like there is no indica- 22 by determining Cos in permitted findings O.S. See the jury’s tion of § 85 Okl.Cr. 186 by v. is wheth- guilt. The issue for resolution contends, (1947). Appellant the record and to case at Cody applies rule the er the reflects, although jury, that the instructed where are two alternative hand there unanimous, was had to be that their verdict upon base convic- which to the theories fac finding of the not instructed that their murder, of degree each for first tion theo supporting one of the two basis tual proven. alleged was and which unanimous. ries also had to be jurisdictions have encountered Other due procedure denied him the alleges this reviewing in convic- problem, often disagree. law. process of of upon alternative theories based tions opinion question felony was settled our and murder. premeditated This murder (Okl.Cr. P.2d Edwards, 862 in 163 Conn. James In Connecticut James, was 1981). (1972), In the defendant defendant 316 A.2d 387 the degree charged with murder in the first premedi- conjunctively indicted with was during shooting the with a fatal connection first de- felony and murder the tated candy robbery store Okla attempted robbery. of a underlying gree, upon based charged by City. The defendant was charged disjunctively, homa jury then theories, He also as herein. jury alternative in the case before as was here, a claim identical that raised was affirmed be- conviction Court. following rea rejected for the single and it was a crime there but cause to the charged sons: and alternatives went crime, not the crime basis of the factual process clause the Constitu- The due a itself. that each element tion demands

In People Taggart, 621 P.2d 1375 THE SENTENCING TRIAL STAGE OF (Colo.1981),the Colorado court held that We assignments now turn to those the defendant was not denied unani- a challenging error In death sentence. mous verdict merit of the that fact penalty, death the State general specify not which verdict did alleged, found, and aggravat- two alternative was the cause of the crime. circumstances, (1) ap- to-wit: that the And, Hazelett, 8 Or.App. State pellant previously a convicted of felo- (1972), Oregon Court ny involving the use or threat of violence upheld jury instruction that the verdict and, (2) person; existence guilt must be unanimous as probability would commit degree innocence of murder in the first criminal acts of that violence would consti- need reach a but not unani- continuing tute a society. threat to 21 O.S. mous decision on its in either foundation 1981, 701.12(1) (7). sup- The State felony premeditated murder or murder. ported the first circumstance Wilson, See State Kan. with the admission of evidence that (1976); Wells v. Com- previously lant was convicted in Nevada monwealth, Ky., 561 S.W.2d 85 upon plea guilty robbery and use (1978). deadly weapon the commission decisions, Having examined these crime, degree kidnapping. and second having State prove found did prove attempt its crimes were premeditation felony-based both nature, aof violent the State submitted murder, this Court finds that the failure copies of preliminary hearing transcript to indicate the basis of their for those The proof cases. State offered of finding guilt of was not error. aggravating by the second circumstance Id. at 865-66. We find that our in producing linking appellant evidence to in State, dispositive is James of this issue. unadjudicated an in offense Utah which Accordingly, assignment of error is resulted in death people. the of three without merit. II. III. Next, appellant claims trial the Appellant’s assignments first and fourth unduely court opening restricted his state error regarding of deal with similar issues jury by sustaining ment to the objections notice. We therefore combine our discus- by prosecutor. purpose The sion of them. opening statement is to advise the presented, error, what evidence will In his be and to State, prepare them for it. Carson 529 lant contends that to he was entitled (Okl.Cr.1974). The preliminary hearing trial court allegations on the con- may scope opening control the statement in tained the Bill of Particulars filed in Shipman its informed discretion. v. State. The Bill of Particulars announced ((Okl.Cr.1982). 639 P.2d 1248 Our pen- the State’s intention to seek the death careful examination of the record reveals alty, aggravating those listed circum- that on several defense occasions counsel 1981, stances enumerated in 21 O.S. 701.- § scope proper opening exceeded the state hoped prove. 12 which the State to Failure by arguing ment the merits of the case. provide to preliminary hearing on properly The trial court disallowed such deprived juris- issue the District Court of Furthermore, arguments. although at sentence, impose diction to the death ac- prosecutors’ least one of com side-bar cording appellant’s argument. to We dis- comments, improper, ments were these agree. standing do not require alone either rever proposition 1981, sal or modification. This We first note that 21 O.S. wholly require any type pre- without merit. 701.10 not does § regarding validity agree We hearing with Bill of circumstances; aggravating pro- its State’s Particulars contained insufficient notice of aggrava- if are satisfied evidence support visions the evidence intended in of the prior to is made known the defendant tion allegation dangerousness. of future We P.2d trial. to See Jones previously have held purpose “[t]he held, (Okl.Cr.1983). repeatedly requirement in Section 701.10 is [notice] therefore, hearing preliminary that a opportunity to accused pre- allow the to alleged aggravating circumstances pare a defense.” 660 P.2d Jones v. required. E.g., not the State is Brewer v. at 639. See Johnson v. (Okl.Cr.1982); statement (Okl. Dutton in the Bill of Particulars that the State Cr.1984). present has to Appellant failed prove dangerousness would future “from compelling reason us to abandon this past pro- behavior the defendant” precedent. alleged regarding past vides no clue what assign- contends his fourth behavior the accused would be called to ment of that no disclosure was made error Johnson, against. defend As we stated by the of the evidence it intended to State “[ajdmitting unadjudicated evidence of support circum- use requires criminal offenses defendant constituted continu- stance charge against defend more than one in the society. argu- threat In a related sentencing proceeding. play Fair and sub- ment, appellant asserts that the Bill of justice stantial mandates that defendant timely not filed. Particulars was provided with when be notice the State unadjudicated intends to offer evidence of surrounding re facts this issue criminal offenses.” Id. May that on the State filed veal Bill of Particulars. The Bill announced its error, constitutional prove ag the two the State’s intention preju result in statutory, which does not gravating previously circumstances men result in dice to the defense will not rever tioned. of its claim sal of a conviction. 20 O.S. 3001.1 prior suffered convictions in had Appellant has failed to demonstrate unlaw volving the use or threat of violence from the admission of this prejudice ful listed, detail, person, Bill those con notice, though tech evidence. The Burks upon relying. which the was victions State stage nically in this to the first limited case Regarding dangerous claim of the future trial, contain information of did detailed ness, simply the Bill recited from “[t]hat unadjudicated offense. We regarding this past aggra of the defendant” the behavior previously proof held of unad- vating proven. circumstance would be On judicated is to show the offense admissible 18, 1984, the State filed “Notice of June the probability that accused existence of a to Evidence of State’s Intention Introduce con future acts of violence would commit Crimes,” the so-called “Burks not Other society. to continuing threat stituting a detail, listed, ice.”1 This notice the State, 665 P.2d at 823. v. See Johnson unadjudicated offense Utah. notice And, stage from first of trial evidence the admissible, advised that the evidence was incorporated punish into the typically is trial, “prove lack stage in the of to of first aggravating phase provide proof of ment to killing.” and for mistake accident motive See, v. 18, e.g., circumstances. Stout trial commenced on June When (Okl.Cr.1984). This is not 693 P.2d not offer evidence of the Utah the State did wholly was un Instead, a case in which counsel stage. the killings the proof re trial relevant prior aware to present this evidence was allowed to State ap unadjudicated offense. It garding punishment phase to in the of trial pears that defense counsel dangerousness. from the record its claim of future (Okl.Cr.1979) 1. Burks Cr.1980). quite with the the assignment

was familar facts of This error with- murders, and to Utah was able limit some- merit. out damaging what the effect the evidence through probing cross-examination of the V. State’s witnesses. We are therefore com- Appellant also contends the trial pelled deny to this claim. failing court erred in to instruct the appellant’s Finally, reject we con that, if they were to unable reach a unani Bill tention that the of Particulars was not punishment as to mous verdict within ease, timely In this filed. time, dismissed, reasonable would be was informed more than month before judge would enter a sentence aggravating trial circumstances the imprisonment. rejected previously life We prove proof sup State intended to argument Brogie this same

porting aggravating the first circumstance. P.2d at and we to adhere aggravating Evidence of the second cir today. assignment This of error is without cumstance made known to merit. days ten trial. hold before We that in this timely context the Bill Particulars was MANDATORY SENTENCE REVIEW filed. 660 P.2d Jones Cf. (Appellant eighteen days prior informed to VI. aggravating what circumstances the pursuant Finally, to 21 O.S. prove, State intended and evidence of 701.13(C),which was in effect at the time aggravating circumstances was dis appeal filed,2 required arewe five days closed before trial. Held: notice following make the in all determinations sufficient). capital cases: 1. Whether the sentence death was IV. imposed passion, under the influence of error, his sixth factor; prejudice, any arbitrary other asserts instructions supports Whether evidence punishment phase offered in the did not finding jury’s judge’s statutory of a provide particularized guidance aggravating circumstance as enumerated jury’s mitigating consideration of evidence. act; in this disagree. Brogie We held in 3. Whether sentence of death is ex- (Okl.Cr.1985) “[s]pe- disproportionate cessive or penalty cific balancing standards eases, imposed considering in similar mitigating circumstances both crime and the defendant. constitutionally required.” are not See Cartwright A. 552-53 in impose carefully structed that it could not the death We have examined the record aggravat any sentence unless it found that the indication that the sentence of clearly outweighed any circumstances imposed death was under the influence of mitigating might it passion prejudice. judge’s circumstances find. Both trial any way trial court not in report did limit the record disclose that the jury’s mitigating circum any consideration was instructed to avoid influence of herein, passion, prejudice stances. The instructions there arbitrary other factor fore, entirely proper were imposing Report and correct. See when sentence. Trial (Okl. Chaney State, Furthermore, Judge v. 612 P.2d 279-80 judge at 5. the trial Although Legislature appeal 2. revised stat- 265, has this at the time the statute enacted would Laws, provision ute post somewhat in 1985 Okla. Sess. Ch. ex render new law. facto 1981, 701.13, State, (Okl.Cr. codified at 21 we that O.S. held Green v. 713 P.2d 1041 n. 4 1985). apply pending statute cases new on

741 BUSSEY, Judge, concurring. specific finding specially that Id. not so influenced. agree judgment I that sentence

in this case should be affirmed. opinion proportionality I am of the that a B. review death is unnecessary. sentences that the evidence was ade- We find State, Such was our in Foster v. quate aggravating both circum- (Okl.Cr.1986) 714 P.2d 1031 and Ross v. Regarding claim stances. State, P.2d were 717 which decided prior for fel- State, lant had sustained convictions subsequent to Green v. 713 P.2d involving the use or threat of violence 1032 onies person, produced the State evidence

to the BRETT, Judge, specially concurring. of a appellant had been convicted rob- Also I bery kidnapping judgment in Nevada. ad- concur that the and sentence affirmed, agree in this case should be but I hearing preliminary mitted were tran- special Judge with Bus- concurrence revealing the circumstances scripts violent sey, proportionality review allegation surrounding crimes. The those unnecessary. death sentences now supported by dangerousness future IT appellant participated in a SO ORDERED. evidence that IS death robbery which resulted in the brutal circum- people.

of three adequately proven. were

stances

C. imposed compared sentence CHAMBERS, Appellant, Charles W. previous cases either af- herein with those v. 3 Court, and we firmed modified4 Oklahoma, Appellee. STATE of proportionate. find the sentence is No. F-84-201. reasons, foregoing Accordingly, for Appeals of Oklahoma. Court of Criminal judgment and sentence of court is AFFIRMED. 1986. June BUSSEY, JJ., specially con- BRETT and

cur. State, 1980), State, (Okl.Cr. (Okl.Cr.1986); P.2d 269 Ross v. st v. 612 717 P.2d 117

3. modified Fo Brown, State, nom., Chaney (Okl.Cr.1986); v. v. Green sub grounds, 730 er P.2d 1031 714 other State, (Okl.Cr.1985); Liles v. (10th Cir.1984). v. State, 1032 713 P.2d F.2d 1334 (Okl.Cr. 1985); Cooks v. 702 1025 P.2d State, (Okl.Cr.1985); Banks v. 699 P.2d 653 State, (Okl.Cr. 1985); v. 1032 Parker 713 P.2d State, (Okl.Cr.1985); Cartwright v. 701 P.2d 418 State, (Okl.Cr.1980), Eddings v. as 616 P.2d 1159 State, (Okl.Cr.1985); Brogie v. 695 P.2d 548 (Okl.Cr.1984); Morgan modified, v. 688 P.2d 342 State, (Okl.Cr.1985); Bowen v. 695 P.2d 538 State, (Okl.Cr. 1983) (Un F-79-487 Nov. No. State, (Okl.Cr. 715 55 2520 O.B.J. State, (Okl. Johnson v. published); 665 P.2d 815 State, (Okl.Cr. 1985); Stout v. 693 P.2d State, (Okl. Cr.1982); v. Glidewell 663 P.2d 738 State, (Okl.Cr. 1984); Nuckols v. 690 P.2d State, (Okl.Cr. Cr.1983); Jones v. State, (Okl.Cr. 1984); Robison v. 677 P.2d (Okl.Cr. 1983); Driskell P.2d 343 (Okl.Cr. 1984); Dutton 674 P.2d 1134 (Okl.Cr. 1983); Boutwell 659 P.2d 322 (Okl.Cr. 1984); Stafford (Okl.Cr. 1983); Munn 658 P.2d 482 (Okl.Cr. 1983); Coleman v. State, (Okl.Cr. 1983); v. Odum P.2d 703 State, (Okl.Cr. 1983); P.2d 1205 Stafford State, (Okl.Cr. 1982); Burrows 640 P.2d 533 State, (Okl.Cr. 1983); Davis (Okl.Cr. 1982); Franks v. P.2d 361 (OkI.Cr.1983); 1983); Ake v. (Okl.Cr. 1981); Irvin v. 617 P.2d.588 (Okl.Cr.1982); Jones Parks 1980). (Okl.Cr. 1982); Hays v. 648 P.2d 1251 Chaney (Okl.Cr. 1980); and, 617 P.2d 223

Case Details

Case Name: Newsted v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 16, 1986

Citation: 720 P.2d 734

Docket Number: F-84-474

Court Abbreviation: Okla. Crim. App.