*1 objection sel’s immediate a bench confer- 4.2 As it is not clear No. give Instruction prosecutor exactly Appellant’s what ence was called. The informed from brief instruction, treat we will objection is to the court that the witness’ remark was not aspect of her claim of ineffec- it another expected. as had The trial the answer she of counsel. tiveness Appellant’s objection court sustained the disregard admonished the No. 4 that Instruction The record shows 211-214) (Tr. comment. witness’ by objected the State and requested was strong poten- Appellant having as by the Upon record it is clear that the re this considering tial to mislead by mark Mr. Woods was an inadvertent com- intent or lack thereof to defendant’s the intentional introduc and not comment objection was alleged events. The mit the by tion the State of evidence of other 397) (Tr. fail to see how overruled. Further, preju Appellant crimes. was not performance deficient in this counsel’s was any error cured diced remark was manner. by the court’s admonition. Patterson v. (Okl.Cr.1987); of ineffec- Reviewing Appellant’s claims Kitchens v. under the stan- assistance of counsel tive (Okl.Cr.1973). Washing- dards set forth Strickland v. ton, U.S. alleged by After of the errors review (1984), we do not find that L.Ed.2d 674 Appellant, we are unable to conclude that per- prejudiced by counsel’s
Appellant was any requires which ei- error has occurred performance was so formance or that the Appellant’s or modification of ther reversal unrelia- deficient as to render the verdict Accordingly, judgment sentence. Therefore, error is assignment of ble. AFFIRMED. sentence is denied. error, LANE, P.J., BRETT, assignment final of PARKS and In her JOHNSON, JJ., a remark an Appellant contends that concur.
employee of the State Auditor’s Office of improper introduction of evidence
other crimes in violation of Burks v.
The record reflects that In-
an auditor with the State Auditor and Office,
spector’s testified that he examined pertaining opera- to the certain documents SELLERS, Appellant, Richard Sean tag agency. These doc- Appellant’s tion of statements, ledgers, uments included bank profit semi-monthly reports, and loss state- Oklahoma, Appellee. of STATE ments, comparing semi-monthly etc. In No. F-86-731. deposits Tax reports to the made Commission, Mr. Woods discovered Appeals of Oklahoma. Court of Criminal timely deposits did not make April 1991. tag agency. Mr. monies taken “According to the Okla- Woods remarked Rehearing May Denied 1991. required to tag agent homa Statutes deposit anything in on a excess $100.00
daily clearing to the Tax Commission basis
account. would be a violation of that This (Tr. 212) Upon
statute.” defense coun- defense, embezzled, ground no provided: such fact is 2. Instruction No. 4 pay- mitigation punishment, unless or of you You that if find and believe are instructed filing prior to the been made ment has from the evidence that the accused intended 51). (O.R. charge property alleged to have been restore the *5 I. ISSUES RELATED TO JURY SELECTION Peters, County- Ann Jones Oklahoma Lee A. Office, City, Oklahoma Public Defender’s Appellant claims that he was denied his appellant. for right by jury composed trial of a fair Gen., Caroline Henry, Atty. H. M. Robert cross of the community. section theOn Emerson, Hammons, Attys. Diane Asst. trial, morning filed a motion Gen., City, appellee. for Oklahoma quash jury panel, asserting the entire registration use of voter records resulted in
OPINION
systematic
ju-
exclusion
from
minorities
County.
ries
Oklahoma
JOHNSON, Judge:
sought
support
this assertion
a re-
Sellers,
Appellant, Sean Richard
was con-
“incorporate
quest
reference” testi-
victed in the District Court of Oklahoma mony presented
judge
before the
trial
Nos.
CRF-
County, Case
CRF-86-1231 and
wholly unrelated cases. The State offered
three,
86-1232,
charges of
Murder
objection,
no
and the
judge
trial
allowed
Degree.
First
recommended a
procedure.
this
each,
death
sentence of
for
and the District
judgments
ac-
Court entered
and sentences
appeal,
On
has “cross-ref
cordingly. The case
this
comes before
ap
erenced”
record to
on
the records
appeal.
on direct
Court
peal
3.3,
in the
cases.
other
Rule
22 O.S.
App.,
Ch. 18
Rules of
the Court
*6
Appeals, permits
Criminal
cross referenc
STATEMENT OF FACTS
records,
only
appeal
of
but does
in
so
8,
reveals that
September
The record
on
the
filing separate
context of co-defendants
1985, a clerk at a convenience store in
appeals.
procedure
used
here
City was
death.
Oklahoma
found shot to
Indeed,
highly irregular
improper.
and
but
trial,
presented
testimony
At
the State
the
for the fortuitous circumstance
that
Howard,
of Richard
that
who claimed
he
ap
other
resulted in
cases
convictions and
appellant
with
September
had been
on
one,
peals contemporaneous to this
this
appellant
had observed
and
shoot the
have had no
Court would
record to review.
gun
a
by
clerk with
owned
Howard’s
light
gravity
In
of this
have
we
grandfather. Howard
testified
further
reviewed and considered the evidence
appellant
that
claimed he killed the clerk
However,
presented in the other
in
cases.
because “he wanted to see
it feels
what
cases,
stipula
all future
the substance of
somebody”.
like to kill
expected testimony
tions of fact or
should
5, 1986,
appel-
On March
the bodies of
writing
part
to
and
a
of
be reduced
made
stepfather
and
lant’s mother
were found
record,
open
or recited in
court and
in
shot to death
their bed.
testi-
Howard
by
reporter
the court
it
recorded
so that
appellant
early
fied that
came to his house
in
appeal.
can be transcribed
the event of
morning
that
and confessed
the murders
Supreme
Court has established
suggested
him. Howard claimed that he
guidelines
one
to review claims such as the
appellant
they
that
hide the murder
presented by appellant.
.44
weapon,
caliber revolver owned
appellant’s stepfather,
prima
Howard’s house.
In
establish a
facie viola-
order to
investigation
guns
requirement,
Police
showed that the
tion of the fair-cross-section
were,
fact,
(1)
described Howard
used to
must show
that
defendant
Finally,
group alleged
fire the
shots.
testi-
excluded
a “dis-
fatal
Howard
is
(2)
appellant
plan whereby
group
community;
fied that
devised a
in the
tinctive”
appel-
representation
group
he
of this
would return to
that the
juries
later
is
morning,
lant’s house
“discover”
venires from which
are selected
bodies,
to the
police.
and call the
reasonable in relation
fair and
in the communi-
C.
persons
of such
number
underrepresentation
(3) that this
ty;
Appellant next contends that the tri
exclusion of the
systematic
due to
by refusing
al court erred
to allow individu
process.
jury selection
group in the
sequestered
dire of the
al
voir
veniremen.
357, 364,
Missouri,
439 U.S.
Duren v.
Foster v.
On
L.Ed.2d 579
(Okl.Cr.1986),
denied,
cert.
data, appellant
census
of 1980
the basis
we
groups of African
identifiable
argued that
that:
noted
Americans, Asians,
Americans,
native
[although
practice may
such a
be al-
present in
minorities are
Okla-
other racial
judge,
lowed
a trial
it is an extraordi-
However,
present-
County.
homa
nary
danger
of
measure.... Unless
showing
represen-
ed no evidence
jurors by exposure
prejudicing the
from
groups
venires
tation of these
damaging
grave problem
information is a
is not fair and
juries are selected
which
served,
special purpose
or some
would be
of
relation to
number
reasonable in
unlikely
it is
individual voir dire
community. Appellant
persons
such
justified.
find no
would be
abuse
prong of a
the second
failed to establish
allowing
procedure.
discretion in not
violation, and we find no error.
prima facie
omitted.)
(Citations
any
Nor do we find
of discretion in
case.
abuse
B.
Additionally, appellant asserts that
D.
requirement was vio
the fair-cross-section
Appellant next asserts that his
O.S.1981, 28(A),
by operation
lated
of 38
rights
Eighth
under the Sixth and
Amend
seventy years
permits persons over
which
judge
ments
violated when the trial
were
age
without show
to decline
service
permit
refused to
voir dire to determine
Assuming
ing hardship or other exclusion.
concerning
prospective jurors’ attitudes
appellant had satis
admitting
without
youth
The extent
factor.
prong
the first
fied his burden under
largely
dire rests
in the discretion
voir
Duren, supra,
Moore v.
see also
*7
Woundenberg
of the trial court.
v.
Van
161,
(Okl.Cr.1987)
165-66
cert. denied
328,
(Okl.Cr.1986)
332
cert.
873,
212,
into area of and this We find that the court properly. ruled argument must fail. Relevant evidence having is evidence any
tendency to make the any existence of fact consequence that is of E. to the determination probable proba- action more or less Appellant next asserts that the trial it ble would be without the evidence. court committed reversible error excus O.S.1981, proffered 2401. The evi- § prospective jurors expressed three who dence was not relevant within this defini- concerns imposing penalty. about the death tion. Evidence which is not relevant is not proper inquiry deciding when whether O.S.1981, admissible. 2402. Further- § potential juror to excuse a for his or her more, presence even if the and influence of capital punishment views on is whether satanism in the City metropoli- Oklahoma prevent those substantially views would or tan area consequence, were a fact of appel- impair performance of his duties aas lant was able to demonstrate fact juror in accordance with his instructions through several other witnesses who testi- Wainwright Witt, his oath. concerning fied satanism in the area and 412, 420, 105 844, 850, U.S. 83 L.Ed.2d appellant’s personal involvement the oc- Although jurors excused in Thus, concerning cult. the other gave this case confusing and sometimes girl could have been excluded under 12 conflicting questions answers asked O.S.1981, 2403 as cumulative evidence. counsel, the court and the record when appel The trial court also excluded supports read context finding spiral lant’s exhibit school note bound each prevented of them would have been book, which he claims showed his involve substantially impaired from performing agree ment in satanism. We with the trial their duties as a result of their views on judge that this constituted inadmissible capital punishment. judge, trial who hearsay. Additionally, majority the vast to observe the conduct and *8 appellant’s high notebook contained panel during dire, demeanor of the voir did history, English, geometry school and not his by excusing any abuse discretion homework; notes and matters which were jurors for cause. completely irrelevant. We note further many portions of the notebook were II. FIRST STAGE EVIDENCE objection admitted without from the State. excluding A. There was no error in the exhib it, any nor could have suffered Appellant claims that the trial court prejudice. by excluding committed reversible error ev idence material Appellant Appellant to his defense. also claims that the trial sought testimony to introduce improperly prevented that an Okla court him from elicit City girl, homa with ing girlfriend. no connections to this a statement he made to his case, killed, had become in day appellant’s parents involved satanism and On the were signed by girlfriend, had received a note appellant purportedly someone else told his it, “Baby, you.” believed to be in I involved satanism. The couldn’t do not even for girl note informed Appellant that she would kill claims it should been have “child”, person prose- of his then exist- records of a and a admitted as a statement O.S.1981, 2803(3). of mind. 12 cuted under our “reverse certification” state § statute, 1104.2, disagree. Specifically excluded from is not a “child” as de- We § 1101(1). Moreover, 1127(d) exception are of memo- fined ex- “statement[s] § § pressly provides: ry prove the fact remembered or belief to statement, This is such a or believed....” (d) (a) (b) Subsections and of this sec- properly and it was excluded. use, apply not to tion shall confiden- tiality disposition and records that the tri Appellant also asserts fingerprints of a who is sixteen improperly prevented him from al court (16) (17) years or seventeen old and concerning questioning Richard Howard charged with one of the crimes enumer- girl had made to kill his threats Howard ated in Section 1104.2 of this title. Appellant speculated that friend’s father. angry, gun years age, Howard had been retrieved a was sixteen father, among kill the was unsuccessful his murder is the crimes enumerated in father, attempt to confront the his Section 1104.2. gone frustration had to the convenience Appellant additionally asserts that and shot the clerk instead. This store acquired through Dr. Jones’ inter Howard, appellant, would show that view was taken in violation of his Sixth had committed the first homicide. right Amendment to assistance of counsel. agree ruling. with the trial court’s In Buchanan Kentucky,
Any
threats that Howard
have made
wholly
to this
were
irrelevant
case. As Supreme
proper
Court stated that the
con
such,
O.S.1981,
they were inadmissible. 12
cern of the Sixth Amendment is consulta
Additionally,
2402.
Howard’s conflict
tion with counsel. To be an effective con
clearly
with the father was
demonstrated
sultation, counsel must have been informed
by testimony that Howard could not obtain
scope
proceed
about
and nature of the
permission
girlfriend.
marry
Appel-
his
ing.
depend
Effectiveness would also
on
argue
theory
lant was able to
his
to the
possible
counsel’s awareness of the
uses to
jury,
prejudice
and no
could have resulted.
pro
which
client’s statements
occurred,
if
Even error
it could not serve as
ceeding
put.
could be
a basis for reversal.
Harrall v.
See
In this
there can be no doubt that
prior
consulted with counsel
initiating
proce-
the reverse certification
B.
dures. Counsel filed the motion for certifi-
trial, appellant
Prior to
informed
sought
cation as a child. Counsel
funds to
relying upon
the State that he would not be
psychological
conduct Dr. Jones’
examina-
However,
insanity
an
defense.
after the
fully
tion. Counsel was
aware of the dates
appel
State had rested its case-in-chief and
on which the examination would be con-
presented
testimony
lant had
of eleven ducted,
scope
as well as its
and nature.
witnesses, appellant
informed the trial
appellant’s
rely upon
Due to
decision
change
position
court of his
and intro
defense,
insanity
counsel
on notice
insanity.
duced
appel
evidence of
After
anticipate
that he
the use of
would have to
*9
rested,
permitted
lant
the State was
to psychological
by
prosecution
the
evidence,
appellant’s
appellant’s
rebut
over
Smith,
rebuttal. See Estelle v.
objection,
testimony
with the
of Dr. Her
(1981).
454,
1866,
685 whole, cross-examination of Dr. Jones. Under the fairly and accurately state the guise determining applicable the basis of Dr. law. See Allison v. opinion, sought 142,
Jones’ defense counsel (Okl.Cr.1983). jury him cross-examine with documents that instructed that anas element of Murder in previously had been excluded as inadmissi- Degree, the First it must find that hearsay. expert may ble While an be re- death by was caused the defendant. The quired on cross-examination to disclose the trial court did not abuse its discretion supporting opinion, facts or data 12 defining causation. O.S.1981, 2705, provide appel- this did not § parade
lant a license to
a mass of inadmis-
B.
jury.
sible evidence
before
The trial
court,
danger
concerned with the
of mis-
objected
also
to the trial
leading
issues,
confusion
insanity.
court’s instruction on
After in
O.S.1981, 2403,
see
determined that
structing
that an
person
insane
questions divulging the substance of the
cannot be convicted of
defining
a crime and
documents would not be allowed. We find insanity
law,
under Oklahoma
the trial
no abuse of discretion. See Hall v.
court instructed the jury that:
33,
introduced,
where evidence is
either by
appel
Nor do we find a violation of
defendant,
State or
which is
right
lant’s
against
to confront witnesses
sufficient to raise in the minds of the
Although
him.
he was not able to disclose
jury a
sanity
reasonable doubt of the
documents,
contents of the
the defendant at the time of the act or
was able to demonstrate Dr. Jones’ lack of
acts for the commission of which he is
exposure to
writings
question. Ap
being tried, the
proof
burden of
is then
pellant presented
testimony
of his own
prove
on the
beyond
State to
a reason-
expert who had
writings
considered those
able doubt that the defendant was sane
emphasized
importance.
their
The con
at the time of the commission of the acts
cerns
Texas,
raised under Pointer v.
or omissions that constitute the crime.
1065,
U.S.
85 S.Ct.
III. FIRST STAGE JURY INSTRUCTIONS In Mullaney, Supreme Court held law, required that Maine which a defendant A. prove passion by preponder- heat of Appellant objected to the trial ance of the evidence in order to reduce four, court’s pro instruction number which manslaughter, pro- murder to violated due vided: cess as construed in Winship, In re person may No be convicted of Murder U.S. in the Degree First unless his conduct (1970). Winship, process due was vio- caused the death allegedly of the prosecution’s lated because the burden of killed. A death is caused if conduct proof preponderance was reduced to a fair the conduct is a substantial factor imper- Mullaney evidence. held it bringing about the death and the conduct affirmatively missible shift the burden dangerous destroys and threatens or proof to the defendant on an essential life. element of the crime. The instruction *10 present squarely We find no error. the case did neither. It Instructions to be given State, jury placed proof upon the are within the discretion of the burden of the the judgment ap- trial court. His and will not be the reasonable doubt standard was long instructions, disturbed plied. as the taken We find no error.
686 physical evidence found at the scene. It is
C. necessary accomplice’s that an testimo jury the that it court instructed The trial ny respects. in all material corroborated Richard Howard whether should determine State, v. 742 P.2d Johns 1146 store accomplice in the convenience anwas (Okl.Cr.1987). If accomplice the is corroborated as was, testimony if he his killing, and that by indepen fact or to one material facts had to be corrobo- concerning that crime tending dent evidence to connect the defen that the record Appellant asserts rated. crime, dant with the commission of accomplice as a that Howard was shows speaks jury from that infer that he matter of law. State, truth as to all. Pierce v. See State, Nunley Under Thus, (Okl.Cr.1982). P.2d if the (Okl.Cr.1979),the test used to instruction, trial court erred in its we find an accom a witness is determine whether clearly that the error was harmless. he be indicted for the plice is whether could being for which the accused is offense D. However, susceptible if evidence is tried. findings that the witness is to alternative give ap The trial court refused to the issue is a accomplice, or not an then is pellant’s requested instructions on the de jury to the question of fact to be submitted (automatism). fense of unconsciousness In proper instruction. Id. under defense, recognized by statute at 21 This original Richard Howard was O.S.1981, 152(6), may be used situa appellant, First ly charged, along with with tions where the otherwise criminal conduct charge Degree Murder. That was later of an individual is the result of an involun juve petition a was filed dismissed and tary completely beyond act which is charging nile court Richard Howard with knowledge individual’s and control. Jones accessory felony, delinquent act of to a State, (Okl.Cr.1982). 648 P.2d Howard, to-wit, pled murder. Richard Thus, acts automati who guilty charge given a five to the was intent, cally does so without exercise of (5) year In return for deferred sentence. will, knowledge free act. See agreed testify agreement, Howard (Wyo. Fulcher v. 633 P.2d concerning knowledge of the at trial his 1981). defense, support appel In of this jury made three murders. The was aware upon lant relied two brief references to his plea agreement. The trial court did of this killing parents, inability to remember his not instruct that Howard was an upon expert testimony Dr. Mar law, accomplice as a matter of but rather essence, Krimsky, psychologist. tin determine whether instructed the Krimsky Dr. opined that on the basis of so, if accomplice he was an and that tests, interviews, writings and draw
testimony corroborated in order to must be ings by appellant, appellant made did not appellant. convict doing he if he shot and realize what give proper Failure to in parents. killed his if sufficient struction is harmless corrobo rating presented evidence was at trial. While an accused is entitled to See (Okl. defense, theory Maxwell v. an instruction on his Cr.1987). being right dependent that the record in this on there suf We find corroborating support in the record to case contains sufficient evi ficient evidence tending appel dence. Evidence to connect that defense. See Cherbonnier find lant to the crime in this case consisted of 751 P.2d not suffi appellant’s confessions to other State’s wit that the evidence this case was bragged require an instruction on the de nesses. had to a co cient to inability Mere to re high and other in his fense of automatism. worker students event, itself, cannot refusing member an in and of school that he had shot a man for automatism, in since the relevant portions to sell him beer. of Ho establish Other knowledge and testimony quiry the accused’s ward’s were corroborated involves *11 conduct, time driving control at the of the not at been alcohol, under the influence of State, the time of trial. See Foster v. 657 and his mother had been killed as a result. Nor did Dr. The defendant having denied been intoxi- Krimsky’s testimony additional cated, necessitate precluded but was from presenting instruction, absolutely since there was evidence of his susceptibility to blackouts. no appellant’s evidence that conduct was This Court determined that the evidence beyond his control. Since the evidence at was relevant to the of defense automatism defense, supported trial could not have and remanded the trial, ease for a new trial court committed no error re- since the issue of defendant’s automatism fusing to instruct. negated could have voluntary action on his part supplied complete defense to his
E. during period conduct of his uncon- Appellant requested the trial court sciousness. The State was entitled to an give following instruction: instruction on the theory alternative of sec- degree ond manslaughter, though, since You are instructed that a homicide com- the defendant voluntarily have mitted taken design without a to effect death control of a motor knowledge vehicle with dangerous weapon means of a is Man- blackouts, of his susceptibility to slaughter thereby Degree. the First engaging culpable negligence. Thus, request premised This appellant’s on the defendant’s liability criminal turned on automatism, defense of which we have de- whether he had voluntary committed a act. termined was not established. Further- more, the by appellant connection made In the unconsciousness between automatism manslaughter negated act, would have the homicidal appellate demonstrates counsel’s funda- element of aforethought. malice mental misunderstanding of the character Therefore, if even automatism had been of the defense raised. reasons raised, adequately it provided would have that if acts, he was not conscious of his he no basis for an instruction manslaugh- on special could not form the mental element ter. The trial properly court refused to aforethought, malice required which is give the instruction. for Murder in Degree. the First Without jury’s findings guilt in Case Nos. aforethought, malice appellant claims he CRF-86-1231 and CRF-86-1232 are AF- should have been manslaugh- convicted of FIRMED. ter. reasoning flaw in this lies in the fact IV. USE OF CAPITAL PROCEEDINGS
that traditionally, automatism has been a crime, proposition, defense not to In his next the mens of a rea but challenges capital sentencing to the the use of imputes actus reus. The law crimi- involving liability only years nal cases defendants sixteen voluntary for unlawful age action. at the liability No criminal time of the commission of the imputed for previ conduct which is offense. He concedes that involuntary, even in we have ously against argument commission of ruled liability” so called “strict (Okl.Cr. Examples Thompson crimes. P.2d 780 automatic conduct 1986), are epileptic blackouts and rev’d 487 U.S. seizures. cases, Eddings
such L.Ed.2d criminally is not held (Okl.Cr.1980), liable P.2d 1159 because he is deemed mod. on other not to have grounds acted at all. urges L.Ed.2d but us to reconsider our This construction is consistent with the position in this case.
opinions
dealing
of this Court
with the au-
tomatism
example,
defense. For
Although
Carter
Thompson
was reversed
(Okl.Cr.1962),
Court,
688 person who was
it execution of
under
B.
age
years of
at the time of his or
sixteen
Appellant additionally asserts that
case, appellant
In
her offense.
documents,
exclusion of
testimony concern
age
of sixteen.
not under
ing evolving
decency,
standards of
and evi
unpersuaded
previous
that our
We are
dence
practic
of Pardon and Parole Board
respect
with
decisions should be disturbed
deprived
right
es
him of his
person
to a
who was sixteen at the time of
in mitigation
punishment.
of
concurring opinion,
In
his offense.
her
goal
presenting aggravat
constitutional
of
expressed the
that
Justice O’Connor
belief
mitigating
and
evidence to a
in a
a national consensus exists which forbids
capítol
permit
case
the sentencer to
any person
execution of
for crimes
person
focus “on the characteristics of the
age
committed before the
of sixteen.
In
who committed the
Gregg
crime.”
v. Geor
expression by
absence of a clear
153,
gia,
2909,
428 U.S.
96 S.Ct.
49 L.Ed.2d
Legislature
younger persons
State
(1976).
859
None of the cases on which
executed,
could be
she found the use of
mandatory
relies have extended
punishment
capital
By
to be unauthorized.
consideration of
evidence to cir
excluding persons
years
age
sixteen
of
who
beyond
cumstances
the realm of the defen
statutory
commit murder from the
defini-
dant’s character or record and the circum
“child”,
O.S.Supp.1987,
tion on
see 10
See,
stances of the
e.g.,
offense itself.
1101(1),
Legislature
we find that
Skipper
Carolina,
1,
v. South
476 U.S.
106
clearly expressed its intention that such
1669,
(1986);
Eddings
L.Ed.2d
v.
persons
subject
should
range
be
to the full
Oklahoma,
455 U.S.
102 S.Ct.
punishments prescribed
of
for adult offend-
(1982);
Ohio,
L.Ed.2d 1
Lockett v.
Accordingly,
reject appellant’s
ers.
we
(1978).1
98 S.Ct.
he relies Caldwell v. 472 Mississippi, U.S. 231 VI. PROSECUTORIAL ARGUMENTS: L.Ed.2d (1985). prosecutor In the that re- SECOND STAGE sponded to argument defense counsel’s A. jury killing that the would defendant if it a death During closing argument, pros returned sentence inform- whether, ing them that their decision jury ecutor asked the to consider would be re- homicide, appeal. problem time of the there viewed on No such as of the first was presented in this case. probability was a that com would constituting mit additional acts of violence danger argument made continuing society. Appellant a threat to that it told the it jury Caldwell was that twice, objected claiming continuing was not the final arbiter of the defendant’s begin threat circumstance should on the jury impression fate. It left with the sentencing, date of not the date of the decision, regardless that of its some other objections Both overruled offense. were authority punish- would determine what Nonetheless, prose trial by the court. appropriate. ment was record in this changed argument asked the cutor argument, case contains no similar we jury probability to determine whether the find no error. of future acts existed at of trial. the time authority provided No to this Court VII. SECOND STAGE JURY point in time which a establish from INSTRUCTIONS may present “continuing threat to A. O.S.1981, purposes for society” of 21 701.12(7). however, trial, clear, stage It jury that In the first “[y]ou that let when the State obtains a conviction for the was instructed should not crime, sentiment, prejudice of a has sympathy, commission violent it evi enter deliberations, your that the defendant threat at into but should dis dence was a jurors impartially, charge your the time the offense. Proof of addition duties as. prior faithfully your are rele under conscientiously, al crimes committed to trial continuing vant to show a oaths and return such verdict as the evi threat. See when measured these VanWoundenberg v. 720 P.2d dence warrants (Okl.Cr.1986), stage, instructions.” the second cert. denied previous was instructed “[a]ll Nonetheless, you part in the first given cannot be instructions circumstance appropriate and must sup apply unless trial this trial where established the evidence at together these ports finding that the will con with addition defendant be considered Relying society pro on Parks tinue a threat al instructions.” (10th Cir.1988), ap- i.e., Brown, F.2d 1545 spectively, sentencing. To the after instructions, aggravating this circumstance all three these pellant asserts homicides. See Robison v. prevented 677 P.2d together, read when sympathy as a considering from However, for the reasons stated
factor. (Okl.Cr. Fox C. assignment 1989), of error. reject we particulars, In the bill of the State Parks, also, U.S. See Saffle sought prove the murders were *14 (1990). L.Ed.2d 415 110 108 S.Ct. heinous, atrocious, especially or 21 cruel. O.S.1981, 701.12(4). Appellant asserts § B. properly the trial court failed to in jury instructed to deter The jury application struct the on the of this probability a that the mine the existence of agree. In aggravating circumstance. We criminal acts of defendant would commit (Okl.Cr.1987) 562 Stouffer continuing constitute violence that would 1036, 108 rt. denied 484 U.S. S.Ct. ce Appellant claims that society. to threat L.Ed.2d 779 this deter Court circumstance, at aggravating codified this cannot mined this circumstance be O.S.1981, 701.12(7), is unconstitution § supported proof absent of torture or seri vague no standards have been ally because physical prior ous abuse to victim to application. We have re imposed for its death. this the trial court refused spe this circumstance is peatedly held that give requiring an instruction such find cific, readily vague, and is understanda not Furthermore, concedes, ings. State Also, being it evaluated an ble. produced sup the evidence at trial did not VanWoundenberg arbitrary manner. See port the circumstance under the narrowed 336-37, P.2d at and authori interpretation adopted by this Ac Court. opinions of this ties cited therein. jury’s cordingly, finding of this circum Court, appellant’s contrary language fail. stance must brief, “rubber-stamped” juries’ have not circumstance, findings but have D. justified under the found the circumstance presented. The constitu facts of the cases jury was instructed: challenge must fail. tional you unanimously If or more find that one aggravating of the circumstances existed Furthermore, present the evidence doubt, beyond a reasonable death supported jury’s find amply ed at trial you penalty imposed shall not be unless killing ing of this circumstance. Prior to ag- unanimously any also find that such clerk, store convenience gravating circumstance circumstances gun carrying he was showed Howard the finding miti- outweigh the of one or more him, and told “I to see what it feels want gating circumstances. somebody.” kill he did. In the like to So months, bragged Appellant of his asserts that this instruction cre following Then, mandatory and co-workers. ated a death sentence viola conduct to friends See homicide, Wood right process. he shot tion of his to due six months after the first Carolina, son v. North pre parents. and killed He took his own parents plain 49 L.Ed.2d A cautions to make that his sure supports reading no had of the instruction no such were dead and to make sure one pro It interpretation. heard the He committed the mur creates absolute shots. imposition of the death sentence ders in his under shorts so that no blood hibition to circumstances, imposes no He under some but spatter could on his clothes. intended mandatory obligation to return an alibi and conceived an whatsoever to use Howard as parents a sentence of death. In additional instruc plan elaborate to “discover” his tions, it jury was informed that “would repeated dead in bed. The incidences of to consider imposing a sen authorized appel violence the calloused manner existence of support finding tence of death” if it found the lant’s actions in this case aggravating more circumstances. one or VIII. SENTENCE REVIEW added) (Emphasis given The instructions 21 O.S.Supp.1987, Pursuant provided with fair and accurate 701.13(C), this Court must conduct a law, statements of the and the trial court mandatory sentence review. As noted acted within its discretion. See Allison v. above, we have stricken the aggravating State, supra. find no error. heinous, atrocious, circumstance of or cruel
due to insufficient
instructions and evi
dence. In
Stouffer
E.
(Okl.Cr.1987),
this Court held that an
challenges
pre
also
independent
reweighing
aggravating
ceding
grounds
instruction on the
that it
implicit
circumstances is
aggravat
fails to instruct the
statutory duty
our
to determine the factual
outweigh
circumstances
must
miti
substantiation of the verdict and the validi
gating
“beyond
ty
circumstances
reasonable
death sentence. See also Castro
*15
State,
(Okl.Cr.1988).
In the mitigation evidence in which consisted F. age, being good his record of student Finally, appellant asserts that the school, being good his record of worker by failing trial court erred to inform the job, support on his the love and of his impose the court would a sen friends, family any pri- and the absence of tence of life imprisonment if a unanimous record, capacity or criminal his mental punishment decision on could not be appreciate wrongfulness of his conduct reached in a reasonable time. We continue prospects and his for After rehabilitation. previous to follow our decisions that such discarding supporting the in- the evidence unnecessary. an instruction is aggravating “espe- See Hale v. valid circumstance of heinous, cruel,” cially af- atrocious or and cumstances, remaining ag- and the evidence of circum- weighing the carefully ter mercy stances which in fairness and against the miti- gravating circumstances extenuating reducing trial, be considered as or at we find presented gating evidence culpability, degree of moral we find factually to be sub- the sentence of death factually of death substanti- sentence appropriate. stantiated and appropriate. and Due to the ated over- warranting Finding error modifica- no guilt jury’s whelming evidence of and the tion, sentences of the judgments and rejection of Stouffer’s defense of self-de- AF- County are District Court of Oklahoma accident, jury’s finding fense and FIRMED. heinous, atrocious, the murder error. or cruel was at most harmless Y.P.J., PARKS, J., LUMPKIN, and say Nor can we the sentence of concur. arbitrary capricious death is after the BRETT, J., LANE, P.J., specially aggravating inappropriately determined concur. sentence is removed from consideration LANE, Presiding Judge, specially aggravating and the cir- concurring: reweighed. cumstances are (Citations omitted). and footnotes agree majority
I with the that the convic- affirmed, tion of the should be Therefore, aggravating when we find an aggravating circumstance of unsupported by circumstance to be the evi- *16 heinous, being the murders atrocious or any ag- if dence we must determine valid sustained under the evi- cruel cannot be gravating circumstances remain. The I presented dence the trial of this case. reweigh remaining will then those court express my time to views write at this against mitigating valid circumstances the the alternatives available to us when about ques- If evidence. we find that there is no aggravating the circum- we find one of aggravating tion the circumstances that O.S.Supp. stances must fail. Under evidence, outweigh mitigating the 1985, 701.13(E), there are three alterna- § death sentence be affirmed. How- find tives available this Court when we ever, questionable if that we find it aggravating that an circumstance cannot aggravating circumstances do not out- mayWe affirm the death be sustained. evidence, weigh then the here; penalty, as we have done remand for arbitrary death sentence is definition or sentencing proceeding pro- a new under the vacated, capricious reducing and must be 701.10(A); O.S.Supp.1989, visions of 21 imprison- the sentence to a form of life punishment or reduce the to one of the ment.
forms of a life sentence.
grayA
area exists between these two
I find three
cases which this Court has
poles
There will be
of our alternatives.
opted for the first alternative:
v.
presented
factual situations
to us where we
Stouffer
State,
(Okl.Cr.1987);
In Stouffer, 742 P.2d at
we stated:
threat,
continuing
and
ing circumstance of
they
found
Upon
in the Bellafato murders
also
careful consideration of the evi-
Appellant created a risk of death
supporting
aggravating
dence
cir-
Judge
support
and that facts do not
person.
than one
Johnson
it. There
more
aggravating cir-
no
finds that these additional
evidence that the murders involved
I
factually supported,
physical
are
cumstances
“torture or serious
re
abuse”.as
finding
the evidence is over-
agree,
quired by
by comparing the evidence of
K
fatally
Circle
attendant was
shot in the
mitigation.
Appellant’s
I find
involve-
Although
head.
the medical examiner tes
Satanism,
ment in
the manner and motive
probably
tified that he
did not die until
of the crimes and his failure to exhibit
later,
about ten minutes
there was no evi
remorse until after his incarceration to be dence that he was conscious after the fatal
remaining aggravat-
strong evidence of the
shot or that
the suffered from serious
jury. The
circumstances found
physical abuse or torture. See
Odum
strongest mitigating
Appel-
is the
ap
sion of an armed penalty single aggravating
death on the continuing
circumstance threat when ev- *17 concerning punishment
idence indicated had killed before and had prior
also committed The fact robberies. that in our case there were multi- MILLIGAN, Petitioner, Gary Wayne murders, ple separated by time and without motive, very strong aggravat- a common addition, evidence. found BEEKMAN, District The Honorable Neal great created a risk of death District, Judge Eighth for the Judicial person to more than one the Bellafatto Oklahoma, Kay County, Respondent. murders. For the above reasons I in the CONCUR No. H-91-253. opinion affirming majority Appellant’s Appeals of Court of Criminal Oklahoma. Degree conviction for Murder in the First imposition penalty. and the death April 1991.
BRETT, Judge, specially concurring: agree
I that this case must be affirmed heinous, though “especially
even atro
cious, aggravating or cruel” circumstance
must fail because of insufficient evidence.
However, imperative I feel that it is why the
discuss the facts of this case and support aggravating does improperly in
circumstance. The aggravating on the circumstance
structed