Maximo Lee SALAZAR, Appellant, v. The STATE of Oklahoma, Appellee.
No. F-88-569.
Court of Criminal Appeals of Oklahoma.
April 29, 1993.
Rehearing Denied Aug. 30, 1993.
852 P.2d 729
CHAPEL, Judge
Robert Schulte, Dist. Atty., Roy M. Calvert, Asst. Dist. Atty., Lawton, Robert H. Henry, Atty. Gen., A. Diane Hammons, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
CHAPEL, Judge:
Maximo Lee Salazar, appellant, was tried by jury and convicted of the crimes of First
During the early morning hours of August 24, 1987, nine (9) year old Jennifer Prill awoke to find appellant burglarizing her family‘s Cache, Oklahoma, residence. When appellant noticed Jennifer, he instructed her to return to her room. Appellant followed Jennifer to her bedroom and stabbed the child twice in the neck as she lay on her bed. Appellant then covered the child and fled the scene. Jennifer‘s body was discovered by her father later that morning. The medical examiner determined Jennifer bled to death as a result of a stab wound which severed her right jugular vein. It was determined that approximately eight dollars ($8.00) and a set of car keys had been stolen during the burglary.
At approximately 1:30 A.M. on August 29, 1987, Lawton police officers responded to a burglar alarm at Kelly‘s Corner convenience store. As the officers arrived at the scene, they observed a car leaving Kelly‘s Corner at a high rate of speed. The officers directed a spotlight into the driver‘s side of the vehicle and noticed two occupants. Officer LaFrance testified that the driver appeared to be an Hispanic male. After a high speed chase, the occupants abandoned the vehicle and escaped on foot. The car was impounded and inventoried. Among the items recovered from the vehicle were a blood-stained knife and the Prill‘s car keys. Papers discovered in the car, as well as a check of the VIN number, indicated that the abandoned vehicle belonged to appellant. At approximately 2:33 A.M. on that same morning, appellant telephoned police and reported his car stolen. The record reveals appellant is not Hispanic, but is American Indian.
Eric Bradbury testified he and appellant burglarized Kelly‘s Corner and then fled
The medical examiner opined the knife wounds on Jennifer Prill could have been made with the knife discovered in appellant‘s car. It was also determined the blood on the knife was consistent with the victim‘s blood type. Further expert testimony revealed three head hairs and one pubic hair recovered from the trauma pants placed on the victim during resuscitation efforts and at the crime scene were consistent with appellant‘s hair.
I. ISSUES RELATING TO JURY SELECTION
Appellant asserts that the trial court erred by refusing to excuse prospective juror Cummins for cause. Appellant‘s primary complaint concerns Ms. Cummins response to a question posed by defense counsel during voir dire. The record reveals counsel asked Ms. Cummins whether she had “any sense that if you find Mr. Salazar guilty of this crime, that you owe it to someone, anyone, to find that he should receive the death penalty?” Ms. Cummins answered, “I think we‘d owe it to the community.” (Tr. 136-37). Appellant claims Ms. Cummins’ response to this and two related questions demonstrated she felt obligated to impose the death penalty. We disagree.
A review of the entire transcript of voir dire proceedings reveals Ms. Cummins stated she had no strong feelings about the death penalty; she would have to hear all of the evidence before making a decision; she would give appellant the presumption of innocence; and she would follow the court‘s instructions. When Ms. Cummins’ responses are considered as a whole and in context, it is apparent she was not biased in favor of capital punishment. Accordingly, we find no abuse of the trial court‘s discretion in refusing to remove Ms. Cummins for cause. See Smith v. State, 727 P.2d 1366, 1370 (Okl.Cr.1986), cert. denied, 483 U.S. 1033 (1987). Furthermore, as was true in Boltz v. State, 806 P.2d 1117, 1122 (Okl.Cr.1991), cert. denied, 502 U.S. 846 (1991), “even if error had been found, [Ms. Cummins] was excused by a peremptory challenge, and there is nothing in the record to show that any of the jurors who sat on the trial were objectionable.”
In conjunction with the previous argument, appellant contends he was deprived of a fair trial by improper questions asked by the prosecutor during voir dire and the trial court‘s failure to timely place the prospective jurors under oath. We agree prosecutors should refrain from asking prospective jurors whether they could impose the death penalty “without doing violence to their conscience.” See Banks v. State, 701 P.2d 418, 422 (Okl.Cr.1985). The proper inquiry is whether the juror‘s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424 (1985). After considering all of the questions asked by the court, the prosecution and defense counsel, we find the correct standard was substantially satisfied.
Prior to voir dire, the trial court administered an oath to the initial twelve prospective jurors whereby the jurors swore they would truthfully answer all questions regarding their qualifications to serve as jurors. Following the sixth peremptory challenge, the court recognized it had inadvertently failed to administer such oath to any prospective juror after the initial twelve. Therefore, the court administered the oath to all the remaining venire. Without citing relevant authority, appellant argues this process, combined with the two errors alleged above, deprived him of a fair
II. ISSUES RELATING TO GUILT/INNOCENCE
During the late morning hours on September 6, 1987, appellant was questioned by three law enforcement officials after being advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and signing a form acknowledging he understood those rights. After approximately two and one half (2 1/2) hours of questioning, two of the officers left the room while Lawton Police Detective Ronald Smith continued to question appellant off the record. Approximately fifteen (15) to twenty (20) minutes later, appellant confessed to the instant murder. The tape recorder was then turned back on and appellant‘s confession was recorded. A second confession was obtained on September 8, 1987, and both statements were transcribed. Following an in camera hearing in which the trial court found the statements were given voluntarily, the transcript of the initial confession was introduced in the first stage of trial. The transcript of the September 8th confession was introduced during the second stage. Advancing two separate arguments, appellant claims in his first assignment of error that his confessions should have been suppressed.1
Appellant first asserts the confession of September 6, 1987, was “the product of coercive interrogation techniques practiced against a suspect of limited mental capabilities.” Essentially, appellant argues that his age and I.Q., combined with the interrogators’ techniques and the attendant stress, rendered his confession inadmissible. The record reveals that appellant was nineteen (19) years old at the time of his confessions. Three experts testified during appellant‘s competency hearing on February 5, 1988, regarding his level of intelligence. Respectively, the experts opined appellant had an I.Q. of 65, 67 and something “in the lower 80‘s.”2 The State also adds that appellant finished the tenth grade, could read and write, completed Job Corp training, and passed his G.E.D. test.
While youth and limited mental capabilities are relevant to this inquiry, they are but factors to be considered in determining whether the confession was voluntarily given. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Hayes v. State, 738 P.2d 533, 537 (Okl.Cr.1987), vacated on other grounds, 486 U.S. 1050 (1988).
The ultimate test of the voluntariness of a confession is whether it is the product of an essentially free and unconstrained choice by its maker. We must look to the totality of the surrounding circumstances, including the characteristics of the accused and the details of the interrogation.
Castro v. State, 745 P.2d 394, 403 (Okl.Cr.1987), cert. denied, 485 U.S. 971 (1988). See also Young v. State, 670 P.2d 591, 594 (Okl.Cr.1983). We have reviewed both the characteristics of appellant and the details of the interrogation and find the State met its burden of proving by a preponderance of the evidence that the confession was obtained voluntarily. Hayes, 738 P.2d at 537.
The law is clear that a statement obtained from an accused after he has invoked his Fifth Amendment right to remain silent must be suppressed. Miranda, 384 U.S. at 473-74. However, we find that appellant did not invoke his rights in the present case. Read in context, the transcript of the confession reveals only that appellant did not desire to discuss further the .22 pistol stolen in an unrelated burglary. Accordingly, this assignment of error is dismissed.
As his second assignment of error, appellant contends he was denied effective assistance of counsel at trial. In support of this assertion, appellant argues counsel (1) failed to investigate and adequately utilize evidence of appellant‘s “mental retardation” to attack the admissibility of his confessions, (2) inadequately presented such evidence in the second stage, and (3) failed to introduce available evidence which would have corroborated appellant‘s trial testimony. Because we find the second stage proceedings must be reversed, see Part III of this Opinion, we shall consider only the first and third arguments set forth above.
“Appellate review of an ineffective assistance of counsel claim begins with a presumption of competence, and the burden is upon the defendant to demonstrate both a deficient performance and resulting prejudice.” Strickland v. Washington, 466 U.S. 668, 687-89 (1984). “If such a claim can be disposed of on the ground of lack of prejudice, an appellate court need not determine whether trial counsel‘s performance was deficient.” Id. at 697.
As the State correctly asserts, it is not settled that appellant is “mentally retarded.” Although two experts opined that appellant‘s I.Q. was in the mid to high 60‘s3, two other experts testified his I.Q. was in the “low normal” range of intelligence. It should also be noted that mental retardation, in and of itself, does not preclude a defendant from voluntarily waiving his constitutional rights. See Dunkins v. Thigpen, 854 F.2d 394, 399 (11th Cir.1988), cert. denied, 489 U.S. 1059 (1989). We have previously determined appellant‘s confession was given freely and voluntarily. We now find appellant has failed to prove the confessions would have been excluded had trial counsel presented evidence of the alleged mental retardation.
Regarding the third argument, appellant contended at trial that he had no memory of the events on the night of the murder. At the preceding competency hearing, one of the expert witnesses testified appellant was experiencing a psychological shutdown which might have caused him to suffer from memory lapse. Appellant now claims counsel was ineffective because he failed to present this evidence during the first stage of trial. Although such evidence may have corroborated appellant‘s testimony, we again conclude appellant has failed to demonstrate prejudice. In sum, we find appellant has failed to establish that, but for counsel‘s alleged unprofessional conduct, the results of the
Appellant next asserts prosecutorial misconduct deprived him of a fair trial. We first note that a majority of the comments appellant cites as error were not objected to at trial. Therefore, they will be reviewed for fundamental error only. Huntley v. State, 750 P.2d 1134, 1136 (Okl.Cr.1988). Fundamental error has been defined as that error which goes to the foundation of the case or which takes from the defendant a right essential to his defense. West v. State, 764 P.2d 528 (Okl.Cr.1988). We find no fundamental error. Of the comments which were objected to at trial, we find none was so egregious as to have determined the verdicts or affected the sentences. See
As his fourth assignment, appellant maintains he was denied due process of law when the trial court denied his requests for expert assistance and a continuance to analyze blood and hair evidence. At appellant‘s preliminary hearing on March 9 and 10, 1988, the State did not offer evidence of blood tests or hair comparisons. The State‘s blood test results were provided to defense counsel on May 17, 1988, and the following day appellant filed a motion for funds to hire an expert forensic chemist. Appellant alleged such assistance was necessary to rebut the State‘s blood test results and for other purposes. The results of the State‘s hair comparison evidence were turned over to the defense on or about May 25, 1988. A motion for continuance to secure expert assistance to analyze the evidence and test results was filed on June 8, 1988. Both motions were overruled and appellant‘s trial began on June 13, 1988.
Pursuant to Ake v. State, 778 P.2d 460, 464 n. 1 (Okl.Cr.1989), an indigent defendant is entitled to any expert “necessary for an adequate defense.” See Washington v. State, 836 P.2d 673 (Okl.Cr.1992). Before a defendant is entitled to such assistance, however, he must first make the requisite showing of need. Ake, 778 P.2d at 464. He must also demonstrate on appeal that the lack of such assistance resulted in prejudice. See Banks v. State, 810 P.2d 1286, 1293 (Okl.Cr.1991), cert. denied, 502 U.S. 1036 (1992); Woodard v. State, 743 P.2d 662, 666 (Okl.Cr.1987). With respect to appellant‘s second motion, this Court has held that the decision whether to grant or deny a motion for continuance rests within the sound discretion of the trial court and will not be disturbed absent abuse of such discretion. Ake, 778 P.2d at 465.
In the instant case, we find appellant has failed to demonstrate prejudice as a result of the trial court‘s actions. In addition to the blood and hair evidence, the State provided credible evidence in the form of appellant‘s confession and his possession of the Prill‘s car keys. Moreover, the evidence established that forty-five percent of the population have type “O” blood and the jury was repeatedly advised of the limitations of hair comparison techniques. We conclude appellant has failed to show that the trial court abused its discretion or that the court‘s actions undermined confidence in the outcome of his trial.
In his fifth assignment of error, appellant launches two attacks against the prosecution‘s hair evidence. He first claims the State‘s expert hair analyst improperly implied appellant had actual contact with the victim. Appellant also contends hair analysis is not sufficiently reliable and he urges this Court to reverse previous decisions which allow its admission.
We initially disagree with appellant‘s characterization of the expert‘s testimony. Rather than “implying” appellant was at the scene of the crime, the expert gave her opinion that hairs discovered at the scene “were consistent” with appellant‘s hair. The expert testified both on direct and cross-examination that no person can be positively identified through current hair comparison techniques. She further explained this limitation was recognized by
Second, we are not persuaded by appellant‘s plea to abandon our long line of precedent and hold that hair comparison evidence is inherently unreliable. As this Court recently stated in Williamson v. State, 812 P.2d 384, 405 (Okl.Cr.1991), cert. denied, 503 U.S. 973 (1992), “We remain committed to our position as expressed in Driskell v. State, 659 P.2d 343, 356 (Okl.Cr.1983), which sanctioned the use of hair comparison evidence and the determination that any question about the procedures and conclusions drawn therefrom should be raised on cross-examination.” This assignment of error is dismissed.
In his sixth assignment, appellant insists the trial court erred in allowing the State to introduce evidence of the Kelly‘s Corner burglary in the first stage of trial. He claims this other crime was in no way connected to the murder of Jennifer Prill and was more prejudicial than probative. We disagree.
Initially, we note the State properly filed a Burks notice prior to trial detailing the other crimes evidence which it intended to introduce, see Burks v. State, 594 P.2d 771 (Okl.Cr.1979), overruled in part on other grounds, Jones v. State, 772 P.2d 922 (Okl.Cr.1989), and the trial court submitted a comprehensive limiting instruction on other crimes evidence in the jury charge. In Dunagan v. State, 734 P.2d 291, 294 (Okl.Cr.1987), this Court reiterated that evidence of other crimes may be admissible where there is a “logical connection” with the offenses charged. “In the case at bar, the other offenses ... were the crimes which led to the appellant‘s apprehension and arrest and were properly admitted into evidence.” Id.
We further find the evidence of the Kelly‘s Corner burglary and ensuing chase was properly admitted under
Appellant next argues that reversible error occurred when a juror observed him in shackles. At the sentencing hearing, defense counsel informed the court that on the second day of trial a juror witnessed appellant being led from the courtroom in shackles. We find “[t]he brief fortuitous encounter outside the courtroom does not constitute reversible error, absent a showing of prejudice.” Childers v. State, 764 P.2d 900, 903 (Okl.Cr.1988). See also Owens v. State, 654 P.2d 657, 659 (Okl.Cr.1982). Appellant has failed to demonstrate prejudice.
Finding no error warranting reversal of the judgments of guilt for either crime, appellant‘s convictions for First Degree Murder and First Degree Burglary are AFFIRMED. The sentence of ten (10) years imprisonment for First Degree Burglary, which was imposed following the first stage of trial, is also AFFIRMED.
III. ISSUES RELATING TO PUNISHMENT
In his supplemental brief, appellant asserts that his right to due process and fundamental fairness were violated when the trial court failed to instruct the jury
Prior to November 1, 1987, the punishment for First Degree Murder was life imprisonment or death. In 1987,
Twice in the past two years, this Court has held that the amendment of the death penalty statute on November 1st, so as to include the punishment of life without parole, was a procedural change in the statute that did not constitute an imposition of punishment in an ex post facto manner. Wade v. State, 825 P.2d 1357 (Okl.Cr.1992); Allen v. State, 821 P.2d 371, 376 (Okl.Cr.1991).4 Wade and Allen established that the procedural change in
The holdings of Allen and Wade are consistent with decades of Oklahoma law governing the application of procedural changes in criminal cases. The dissent‘s attack on this fairly straightforward application of the law is both curious and unjustified. In 1911, in Ault v. State, 5 Okl.Cr. 360, 115 P. 128 (1911), this Court made it very clear that procedural changes in the law, which do not prejudice or operate to the detriment of the defendant, apply to all trials occurring after the enactment of the statute. In Ault, the defendant committed a criminal offense on March 11, 1909. On June 11, 1909, the Oklahoma legislature enacted a procedural rule requiring that appeals from felony convictions must be perfected within six months after judgment is rendered. Shortly thereafter, on July 15, 1909, the defendant was tried and convicted of the charged offense. The defendant argued that since the rule governing the perfection of appeals was not in effect at the time he committed the charged offense, then that rule should not be applied to him. The Court heartily disagreed stating “[t]he statute requiring appeals relates only to procedure, and is not therefore ex post facto, and is applicable to and controls appeals in all cases where the trial occurred after the law went into effect.” Id. 115 P. at 128. This rule is in accord with the basic rules of statutory construction. C.D. Sands, Statutes and Statutory Construction, § 42.06 (2d ed. 1973). See also Winningham v. State, 488 P.2d 609 (Okl.Cr.1971) (a change in the rules governing joinder of criminal trials was procedural and therefore applied to all trials occurring after the effective date of
Despite this well-accepted rule governing the application of changes in procedural rules to a defendant‘s trial, the dissent cites several cases to support its apparent disenchantment with this basic rule of law. These cases are inapposite and should not be the basis for overturning Allen and Wade, or the decades old principle of statutory construction as set forth in Ault. For example, the dissent cites Bowman v. State, 789 P.2d 631 (Okl.Cr.1990), in which the Court concluded that it was not proper to sentence the defendant under a statute which went into effect after his trial and conviction. Bowman is plainly not relevant to appellant‘s case because the statutory change in
The dissent also notes that Bowman cites Penn v. State, 13 Okl.Cr. 367, 164 P. 992 (1917) and Alberty v. State, 10 Okl.Cr. 616, 140 P. 1025 (1914). Penn concerned the repeal of a statute that was in effect at the time the defendant was charged with an offense. Alberty addressed the effect of a change in the death penalty statute governing the method of execution on a defendant who was convicted and sentenced to death before the effective date of the statute. The Alberty Court noted that the statute applied to all convictions and sentences of death that were rendered subsequent to the effective date of the statute, and that it was only addressing cases that were on appeal when the statute went into effect. In both cases, the Court concluded that § 54 of Article V of the Oklahoma Constitution6 allowed the prior law to be applied to the defendant‘s case. Penn was prosecuted under the repealed statute; and Alberty was to be executed in accordance with the old execution statute unless he requested that he be executed in accordance with the new statute. However, Article 5, § 54 does not apply to procedural changes in the law and has no bearing on the issues in appellant‘s case. Ensley v. State, 4 Okl.Cr. 49, 109 P. 250, 254 (1910).7
The trial court‘s failure to provide proper sentencing instructions to a jury in a capital case is of critical importance. The death penalty is different from all other penalties in its severity and finality. See Caldwell v. Mississippi, 472 U.S. 320, 329 (1985). “Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976). Further, in Beck v. Alabama, 447 U.S. 625, 637 (1980), quoting Gardner v. Florida, 430 U.S. 349, 357-358 (1977), the Supreme Court stated “‘the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose death be, and appear to be, based on reason rather than caprice or emotion.‘” Because this Court lacks the power to grant relief to a man or woman who has been wrongfully executed, this Court, like all courts grappling with the difficult issues raised in capital cases, must act prudently and with the utmost fairness.
Moreover, contrary to the assertion set forth in the dissent, the “death is different” analysis set forth herein is not an arbitrary “fairness” doctrine. Rather, it is a fundamental constitutional principle recognized by the United States Supreme Court. See Caldwell v. Mississippi, 472 U.S. 320, 329 (1985). It is the role of an appellate judge to apply the law as laid down by the Supreme Court. Indeed, while we all, at times, may disagree with the Supreme Court‘s interpretations of the Constitution, we are bound by oath to follow and apply such rulings. We intend to do no less.
The Oklahoma Legislature, as representatives of the citizens of this State, has determined in some cases, life without the possibility of parole can accomplish the societal goals of retribution and deterrence, without resorting to the death penalty.8 Gregg v. Georgia, 428 U.S. 153, 183 (1975) (“The death penalty is said to serve two principle social purposes: retribution and deterrence of capital crimes by prospective offenders“). The sentence of life without the possibility of parole offers the jury a more severe sanction than life imprisonment, but a less harsh penalty than death. A jury could well conclude that life without parole is the appropriate sanction in certain cases in which the State is seeking the death penalty.
The gravity of the death penalty and the legislature‘s clear determination that life without parole should be considered in sentencing a defendant who has been convicted of First Degree Murder warrant remand of this conviction for resentencing. Although appellant‘s crime occurred a few months before the effective date of the life without parole option, appellant‘s trial and conviction occurred seven months after the
Further,
Under the precedents of this Court and the constitutional principles of due process and equal protection as established by the United States Supreme Court, appellant‘s case must be remanded for resentencing. If this Court does not take this appropriate action now, it is very likely that several years down the road another court, upon review of this case, will remand the case for resentencing. By acting now as we are clearly obligated to do, this Court is saving valuable state and judicial resources as well as providing certainty and resolution to this case.
The length of time it takes to process a death penalty case to finality is patently absurd. Our citizens are rightly outraged. Too often courts have abdicated their responsibility by affirming cases which the Supreme Court or some lower federal court later reverses on appeal, or habeas, or post-conviction review. While such affirmances may gain such courts some short term capital with the home folks, the long term effect is devastating to our system of federalism and to the concept of finality of judgment. We must apply the law as it is, not as we wish it were. Parties appearing before this Court and our citizens deserve no less.
This decision should not be construed beyond the very limited facts of this death
Accordingly, appellant‘s sentence of death must be VACATED and this cause REMANDED for RESENTENCING.
LANE, J., concurs.
LUMPKIN, P.J., concurs in part/dissents in part.
JOHNSON, V.P.J., specially concurs.
LUMPKIN, Presiding Judge, concurring in part/dissenting in part.
While I concur in the affirmance of the murder and burglary charges, I cannot join in this Court‘s decision to remand for resentencing. In making its ill-advised “death is different” analysis, this Court overthrows nearly nine decades of jurisprudence holding the proper punishment to be that which is on the books at the time the crime was committed.1 In its rush to “fairness,” this Court creates confusion and uncertainty on a far greater scale that has ever existed before by simply ignoring the facts of this case, which clearly show the option of life without parole just was not requested. Thus, it has effectively overruled Wade v. State, 825 P.2d 1357 (Okl.Cr.1992), which supposedly “clarified” a principle that had no basis in the law of this State from its inception.
Our most recent decision dealing with the subject of retroactive application of punishment is Bowman v. State, 789 P.2d 631 (Okl.Cr.1990). In Bowman, we stated with clarity that “the appropriate criminal penalty is the penalty in effect at the time the defendant commits the crime.” Id. at 631 (citing Penn v. State, 13 Okl.Cr. 367, 164 P. 992 (1917) and Alberty v. State, 10 Okl.Cr. 616, 140 P. 1025 (1914)). Federal courts repeatedly apply this basic principle of law. In United States v. Towne, 870 F.2d 880 (2d Cir.1989), cert. denied, 490 U.S. 1101 (1989), the Second Circuit found that the repeal of a statute prior to the defendant‘s being sentenced was inapposite because the statute was in effect at the time the underlying offenses were committed and at the time the defendant was convicted. Id. at 887. See also Burge v. Butler, 867 F.2d 247, 250 (5th Cir.1989).
In addition, a review of our jurisprudence reveals this principle was part of the legal foundation laid at statehood. One of the first cases was Sharp v. State, 3 Okl.Cr. 24, 104 P. 71 (1909). The defendant there committed an offense while Indian Territory was governed by the laws of the state of Arkansas. The defendant did not go to trial until after Oklahoma had become a state and enacted its statutes. The question before the Court was whether the laws of Arkansas or Oklahoma should be applied. The Court determined that application of the laws of the state of Oklahoma would seriously harm the defendant and the only choice was to use the laws which controlled at the time of the offense. Relying on a United States Supreme Court case, Kring v. Missouri, 107 U.S. 221 (1883), the Oklahoma
Legal nuances of this type lead to an anomaly of the law. The anomaly then skews the principles of law which are to be applied and creates serious cracks in the foundation of our jurisprudence. In addition, it denigrates the principle that this is a nation of laws, and not of men.
The Court further compounds the error of its analysis through a partial review of the scope of the amendments to
Therefore, based on the principles of statutory construction and legislative intent, Appellant is not eligible for the punishment of life without parole in this case.
This Court, in its analysis, alludes to the often enunciated observation that “death is different.” While the final nature of the death penalty may result in a more microscopic review of the facts of a case, it does not change basic principles of the application of a rule of law, or the manner of consistently applying the law. The basis of the United States Supreme Court‘s overturning the application of the death penalty in Furman v. Georgia, 408 U.S. 238 (1972), was there must be a consistent application of the law, and that the vague, arbitrary applications of the penalty be removed. That concept of consistency in the application of legal principles must be applied fairly to all aspects of the review in a criminal case, whether it applies to the State or a defendant. For the Court to do otherwise creates aberrations in the law which impede the orderly, consistent application of that law in the trial courts of this State.
The actions of the Court in this case, pursuant to some type of “fairness” review, disregard the facts of the case. The Appellant neither objected to the instructions given nor requested an instruction on this optional punishment. This Court should never take the position of trying to reinvent the trial strategy of an appellant‘s attorney in a trial. Trial judges are vested with a dual role of being fair and applying the law under the appropriate circumstance. The role of an appellate judge is to apply the law consistently and to ensure the rules of law are set forth to enable trial practitioners and trial judges to rely on those principles of law in the trial of cases. In this case, Judge Brock appropriately applied the substantive law of the crime at
It is in this vein that Allen v. State, 821 P.2d 371 (Okl.Cr.1991) was incorrectly decided.2 For whatever reason, this Court allowed itself to get sidetracked on an ex post facto question. Every second-year law student knows that, when dealing with an ex post facto application, we by definition of the term necessarily assume the statute in question is to be applied retroactively. As an example, the cases of Dobbert v. Florida, 432 U.S. 282 (1977), and Williamson v. State, 812 P.2d 384 (Okl.Cr.1991), both cited by the majority in support of its position, deal with considerations of ex post facto laws. By using these cases in support of its position a law should be applied retroactively, the majority is comparing retroactive apples and ex post facto oranges. The question here, and the core of this dissent, is not whether it is constitutionally permissible to apply a law retroactively, but whether the law was meant to be applied retroactively at all.
But that is not the end of the story. Allen dealt with a guilty plea and a trial judge who was uncertain whether he could consider the life-without-parole option, where the crime was committed before the new law went into effect and plea was taken afterwards. There, the appellant had requested the option and executed a waiver to any constitutional right against the application of any ex post facto law. In Wade v. State, 825 P.2d 1357 (Okl.Cr.1992), a jury trial case, the defendant also requested the life-without-parole option and executed a waiver. We held “[T]his error would not be available if the defendant did not, or refused to, request the life without parole instruction.”
Basically, then, this Court created confusion where there was none by deciding Allen. It nurtured the confusion in Wade, which is wildly inconsistent both with Allen and with principles of retroactive application I have discussed above. Now, it makes the confusion even worse by deciding that an appellant need not even request the option to avail himself of it. Does the majority seek to overturn Wade? It does not so state.
Death is different; but law is law. This Court in its ruling today stresses the former and ignores the latter. Nearly nine decades of Oklahoma jurisprudence should have taught us better. I respectfully DISSENT to the decision to remand for resentencing.
JOHNSON, Vice Presiding Judge, specially concurring.
I must speak to what is obviously a trying and difficult case. One of the problems with the Bench and the Bar is wanting to know what the rule is. The court and attorneys may not like the rule but they do want as much uniformity as possible. The above-named wrote an opinion that had some relevance here but must be distinguished. Wade v. State, 825 P.2d 1357 (Okl.Cr.1992). That case had more to do with the double jeopardy issue and whether or not the life without parole issue had been or could be waived. After reflection
Judge Lumpkin has written a most effective Concur in Part/Dissent in Part opinion. I disagree because “death is different“. Yes, the Court has made a rush to “fairness” but the Legislature has given us no other option. Judge Lumpkin‘s opinion is a brilliant survey of the law as it relates to retroactive application of punishment and a basic legal doctrine that the statute in effect at the time of the underlying offense is the one that applies at the time of the trial. In this particular case, the Legislature in its infinite wisdom, saw fit to pass a statute that gave a radical new or third possible punishment in the death case, that is, life without parole.
During our oral arguments on this and other cases, the State has conceded that with the amendment of
This case is deeply perplexing and I, quite frankly, have had a difficult and trying time, not only based upon the legal doctrines that Judge Lumpkin has so ably pointed out, but the absolute uniqueness of this situation. The Legislature, in an intervening move, passed this radically different third alternative. Obviously, it would have been far easier had they indicated that the application would be retroactive; they did not chose to do so but I cannot state that their silence means that that was not their intent. Having written Wade, I understand Judge Lumpkin‘s quest. Fundamental fairness says we must adopt a new or different doctrine due to the uniqueness of the third alternative punishment. This in no way changes the fundamental doctrine that Judge Lumpkin points out to. The majority is correct.
ED CHAPEL
JUDGE