STATE of West Virginia, Plaintiff, v. Billy Ray McLAUGHLIN, Defendant.
No. 34860.
Supreme Court of Appeals of West Virginia.
Submitted March 30, 2010. Decided June 8, 2010.
700 S.E.2d 289
WORKMAN, Justice
Timothy F. Cogan, William C. Gallagher, Cassidy, Myers, Cogan & Voegelin, L.C., Wheeling, WV, for Amicus, Shane Shelton.
Barbara Allen, Esq., Attorney General‘s Office, Charleston, WV, for Plaintiff.
Gina M. Stanley, Public Defender Corporation, Huntington, WV, for Amicus, Jeffrey L. Finley.
WORKMAN, Justice:
This case is before the Court upon an Order of the Circuit Court of Greenbrier County, West Virginia, certifying questions concerning the upcoming retrial of the mercy phase of the Defendant‘s, Billy Ray McLaughlin‘s, first degree murder case. After examining the briefs submitted,1 hearing oral arguments and reviewing the relevant law, the Court has reformulated the questions with answers as explained in detail below.3
I. Facts and Proceedings Below
On April 4, 1995, the Defendant was indicted for the first degree murder of his wife in Pocahontas County, West Virginia.4 At his trial, the Defendant was convicted of first degree murder without a recommendation of mercy and sentenced to life without mercy. This conviction came after the jury was instructed that if it recommended mercy, the Defendant would be eligible for parole in ten years; however, at the time,
On August 28, 1998, the Defendant filed a petition for writ of habeas corpus in Fayette
The Defendant appealed the circuit court‘s habeas decision to this Court, arguing that he should be granted a new trial on all issues. The appeal was refused. The Defendant then filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied on February 21, 2006. See McLaughlin v. McBride, 546 U.S. 1186, 126 S.Ct. 1366, 164 L.Ed.2d 75 (2006).
During the pretrial proceedings for the retrial of the mercy phase, the trial court certified three questions regarding the retrial.9 The questions posed by the trial court are as follows:
Question 1: Whether or not
Answer: [Y]es, if the language of the statute permits the burden of proving mercy to shift to the Defendant оr permits less than a unanimous verdict of the jury on the issue of mercy.
Question 2: Is it required that the jury, which determined guilt, be the same jury that determines the issue of mercy in a first degree murder case given the language of
Answer: [N]o.
Question 3: Is the prosecution limited in the mercy stage of a bifurcated trial to the presentation of evidence introduced in the guilt stage of trial and rebuttal of evidence presented by the defendant?
Answer: This Court finds that the answer to this question depends in part on the determination on how the first two questions are answered. With respect to Question 3, it is this Court‘s position that since the burden is on the State, (based on the answer to Question 1), the State would be required to present its case first.
II. Standard of Review
In syllabus point one of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), this Court held that “[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Id. Likewise, a de novo standard of review governs the interpretation of any statutory provision as it involves a purely legal question. Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep‘t, 195 W.Va. 573, 466 S.E.2d 424 (1995). Applying the foregoing de novo standard of review, the Court examines the certified questions posed and answered by the circuit court.
III. Discussion of Law
A. Certified Question 1
The first question the Court10 addresses is whether
Notwithstanding the fact that the constitutionality of
[i]n State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), our Supreme Court indicated the (mercy) statute was unconstitutional, and they did so because they said insofar as the statute—and they quote it—shifts to a defendant, the burden of disproving a material element of the State‘s case, in violation of the due process clauses found in
Article 3, Section 10, of the Constitution of West Virginia , and the14th Amendment of the United States Constitution , that individual provision, severed from the remainder of the statute, is unconstitutional and unenforceable. JusticeDavis in that case goes on to summarize due process, stating the due process requirement places on the defendant no burden of proving mitigation, excuse, or justification in a First Degree Murder Case.
The trial court‘s reliance upon LaRock in reaching its answer that the provisions of
Subsequent to LaRock, in State v. Rygh, 206 W.Va. 295, 524 S.E.2d 447 (1999), this Court found in footnote one that there is no “burden of proof” relative to the mercy recommendation. Rather, the Court opined:
We do not believe that conceptually there is any separate or distinctive “burden of proof” or “burden of production14” associated with the jury‘s mercy/no-mercy determination in a bifurcated mercy phase of a murder trial, if the court in its discretion decides to bifurcate the proceeding. In making its overall verdict, in a unitary trial or a bifurcated trial, the jury looks at all of the evidence that the defendant and the prosecution have put on--and if the jury concludes that an offense punishable by life imprisonment was committed, then the jury determines the mercy/no-mercy portion of its verdict, again based on all of the evidence presented to them at the time of their determination. We would anticipate that a defendant would ordinarily proceed first in any bifurcated mercy phase. 206 W.Va. at 297 n. 1, 524 S.E.2d at 449 n. 1.
Based upon the foregoing, the Court now holds that the рrovisions of
B. Certified Question 2
The next certified question is whether the jury‘s verdict must be unanimous in a bifurcated mercy phase of a first degree murder trial? The circuit court found that “insofar as the language of
The answer to this question is found in the
C. Certified Question 3
The third certified question is whether the jury that determines guilt must be the same jury that determines the issue of mercy in a first degree murder case? The circuit court answered this certified question in the negative, stating that “[t]his Court realizes this issue has not been ruled on specifically in a syllabus point, but our State Supreme Court has ruled the same jury on the issue of guilt does not have to be the same jury determining mercy.”
The Defendant asserts that while the Court has implicitly ruled in Doman that the jury that determines guilt does not have to be the same jury that determines the issue of mercy, the Doman decision should be reconsidered and overruled. 204 W.Va. 289, 512 S.E.2d 211. According to the Defendant, the provisions of
In contrast, the State contends that the Defеndant essentially is trying to elevate to constitutional status an argument which is really one of statutory construction “by mak
The Defendant‘s argument is fatally flawed because it is based upon an erroneous reading of the provisions of
[i]f the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life.... Provided, That the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve, except that, notwithstanding any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years....
“Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). There is a lack of any argument before the Court that the provisions of
This Court has considered this question of whether different juries can decide the guilt phase and the mercy phase on three occasions. In three separate opinions, the Court has upheld remand of the case for a new trial on the mercy phase with a new jury, where the first degree murder conviction otherwise was valid.
The first case in which the Court delved into this issue is Doman, a case closely akin to the instant matter. The defendant in
The Court agreed and reversed and remanded the case, in part, for a new trial on the sole question of whether the defendant should receive mercy. The Court based its decision to reverse only on this question, stating that “we cannot see how the improper instruction affected the jury‘s underlying conclusion that the appellant was guilty of the crime charged.” Id. at 292, 512 S.E.2d at 214. Thus, relying on this Court‘s decision in LaRock, which provided for the bifurcation of the guilty phase and the recommendation of mercy phase of the jury, the Court stated that:
[i]n the present case, where the instructional error could not have, in this Court‘s view, affected the finding of guilt, the Court believes that it would be a waste of judicial resources tо require an entirely new trial, rather than to require a limited trial on the recommendation of mercy. Id.
Then, in State v. Finley, 219 W.Va. 747, 753, 639 S.E.2d 839, 845 (2006), cert. denied, 549 U.S. 1298, 127 S.Ct. 1860, 167 L.Ed.2d 351 (2007), the guilty phase and the mercy phase of the defendant‘s trial for first degree murder and sexual assault in the second degree were bifurcated. During the mercy phase of the proceeding, the trial court denied the defendant‘s motion to wear civilian clothing, thereby essentially compelling him to wear prison garb during the penalty phase. Id. at 749, 639 S.E.2d at 841. On appeal, the defendant asserted that if the Court found that the penalty phase was fatally flawed due to the trial court‘s ruling, requiring the appellant to wear prison clothing during the penalty phase, then “the only proper remedy is a new trial and not simply a remand for retrial of the mercy determination.” Id. at 753, 639 S.E.2d at 845. The defendant argued, similar to the Defendant‘s argument herein, that the language of
While the Court found that the penalty phase was flawed due to the trial court requiring the defendant to wear prison attire, the Court rejected the defendant‘s interpretation of the statutory provision, which would have required the entire conviction to be set aside. Instead, just as in Doman, the Court set aside the defendant‘s penalty phase recommendation. Id. In so doing, the Court instructed:
Upon remand, the court shall empanel a jury for trial of the sole issue of whether mercy is to be recommended for the sentencing of Appellant. Since the jury would not have information regarding the guilt phase of the trial, the lower court should exercise reasonable discretion in determining how the circumstances of the commission of the crime are to be conveyed to the jury in addition to other evidentiary matters apprоpriate to the mercy phase that the parties may adduce. Id.
Most recently, in State ex rel. Shelton v. Painter, 221 W.Va. 578, 655 S.E.2d 794 (2007), relying on the early cases of Doman and Finley, the Court stated:
In the present case, where the actions of trial counsel could not have affected the finding of guilt, we believe that it would be a waste of judicial resources to require an entirely new trial. Therefore, rather than require a new trial on the issues of guilt and penalty, we believe the more prudent course would be to require a limited new trial only on the penalty issue—whether or not the appellant should or should not receive mercy. 221 W.Va. at 586, 655 S.E.2d at 802.
Consequently, this Court has on three occasions allowed for the sole retrial of the penalty phase where there is no reason to reverse the conviction. By so doing, the Court has implicitly construed the provisions of
D. Certified Question 4
The last certified question asks whether the prosecution is limited in the mercy stage of a bifurcated trial to the presentation of evidence introduced in the guilt phase of trial and rebuttal of evidence рresented by the defendant? The circuit court found that the burden of proof is on the State and, therefore, the State is required to present its case first. This answer, however, does not answer the question presented. The Defendant posits that “the trial court has, however, effectively answered the question in the negative by its ruling that the State may present additional Rule 404(b), WVRE, witnesses that did not testify at McLaughlin‘s original trial.” The Defendant argues that this type of evidence should not be allowed where it was not offered in the original trial.18 The State does not really take a specific position on this particular evidence, but simply defers to the discretion of the trial court‘s evaluation on the admissibility of the evidence. The State does reiterate that there is no burden of proof at this stage; however, the State asserts that logic dictates that the Defendant would ordinarily gо first. The State also offers that since in this case, the jury that determined guilt is not the same jury that will decide mercy, the trial court should be given the discretion to decide how much, if any, trial evidence should be re-presented to the jury in order to demonstrate the circumstances of the crime before the Defendant presents evidence relevant to mercy. Alternatively, the State suggests that the trial court could instruct the jury at the outset that another jury has found the Defendant guilty beyond a reasonable doubt of the crime, and that this trial is solely for the purpose of deciding whether the Defendant is entitled to mercy making him eligible for parole after fifteen years.
The Court has discussed in several opinions the scope of evidence which may be admitted during the mercy phase of a bifurcated first degree murder proceeding. For instance, the Court has stated that
the jury looks at all of the evidence that the defendant and the prosecution have put on--and if the jury concludes that an offense punishable by life imprisonment was committed, then the jury determines the mercy/no-mercy portion of its verdict, again based on all of the evidence presented to them at the time of their determination. Rygh, 206 W.Va. at 297 n. 1, 524 S.E.2d at 449 n. 1 (emphasis added).19
In Finley, the Court, however, stated that
[a]t the penalty phase, the jury is no longer looking narrowly at the circumstances surrounding the charged offense. In order to make a recommendation regarding mercy, the jury is bound to look at the broader picture of the defendant‘s character—examining the defendant‘s past, present and future according to the evidence before it—in order to reach its decision regarding whether the defendant is a person who is worthy of the chance to regain freedom. See Zant v. Stephens, 462 U.S. 862, 900, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (Rehnquist, J., concurring in judgment) (at the penalty stаge a jury considers the character and propensities of a defendant in order to make a “unique, individualized judgment regarding the punishment that a particular person deserves.“). 219 W.Va. at 752, 639 S.E.2d at 844.
Further, in a dissenting opinion to Schofield v. West Virginia Department of Corrections, 185 W.Va. 199, 406 S.E.2d 425 (1991) (Workman, J., dissenting), the following rationale for a bifurcated proceeding was set forth:
a bifurcated hearing on the issue of mercy would not only permit the defendant a far broader latitude in presenting to the jury full information concerning the defendant‘s life and circumstances and any mitigating evidence in an effort to obtain the balm of mercy. It would also permit the state an opportunity to present any information at its disposal as to the propriety (or lack thereof) of a grant of mercy. If a particular defendant has an egregious criminal history or a marked propensity for violence, for example, that would also be an appropriate factor for the jury to consider. The determination of whether a defendant should receive mercy is so crucially important that justice for both the state and defendant would be best served by a full presentation of all relevant circumstances without regard to strategy during trial on the merits. Id. at 207, 406 S.E.2d at 433.
Just recently, the Court in State ex rel. Dunlap v. McBride, 225 W.Va. 192, 691 S.E.2d 183 (2010), addressed the appellant‘s arguments stemming from the denial of his petition for habeas corpus relief that the underlying criminal trial for first degree murder20 was improperly bifurcated and that evidence was improperly admitted during the penalty phase.21 The trial court in Dunlap ruled, prior to trial, that during the guilt phase of trial the State could present evidence in its case-in-chief that the appellant previously tried to slash the throat of his former wife, Betty Yates, and that he was incarcerated for over two years for stabbing his former wife. Id. at 200, 691 S.E.2d at 191.
Once the trial began, the State moved the court to introduce additional prior bad acts by the defendant against Ms. Yates. Id. The trial court denied the motion as untimely
The Court upheld the trial court‘s ruling, finding that the decision to bifurcate was within the trial court‘s discretion pursuant to the Court‘s dеcision in LaRock, 196 W.Va. at 299, 470 S.E.2d at 618, Syl. Pt. 4 (“A trial court has discretionary authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding as to mercy.“). The Court found that
[i]t is clear that the LaRock factors are concerned with a party being able to present evidence for sentencing that may not be admissible on the merits of a prosecution. In this case, the State had a considerable amount of additional bad acts evidence involving Mr. Dunlap that may not have been admissible during the guilt phase, even if the State had timely brought the evidence to the court‘s attention. However, this evidence was highly relevant as to the decision of whether Mr. Dunlap should receive mercy and obtain a sentence that would allow him to be eligible for parole. Ultimately, we agree with the trial court that “there is no evidence that would lead [us] to conclude that the bifurcation herein was constitutionаl error.” More importantly, Mr. Dunlap has not articulated any plausible prejudicial effect from the bifurcation. Dunlap, 225 W.Va. at 201, 691 S.E.2d at 192 (emphasis added).
Further, the defendant argued that the State improperly was allowed to introduce evidence of other bad acts including numerous incidents of violent conduct by the defendant toward his former wife and their children during the penalty phase without the trial court conducting a McGinnis hearing. Id. The Court found no error, stating
Mr. Dunlap has failed to cite to any decision of this Court where we have required a McGinnis hearing for sentencing purposes only. As a general matter, “[t]he rules of evidence, including Evid. R. 404(b) regarding ‘other acts,’ do not strictly apply at sentencing hearings.” State v. Combs, No. CA2000-03-047, 2005 WL 941133 (Ohio Ct.App.2005). See Patton v. State, 25 S.W.3d 387, 392 (Tex.App.2000)(“It has been held that
Rule 404(b) does not apply to the penalty or punishment phase of a bifurcated trial.“). Moreover, “[a] trial court has wide discretion in the sources and types of evidence used in determining the kind and extent of punishment to be imposed. And a sentencing court is not restricted by the federal constitution to the information received in open court.” Elswick v. Holland, 623 F.Supp. 498, 504 (S.D.W.Va.1985) (citations omitted). Therefore, we find this issue to be without merit. 225 W.Va. at 202, 691 S.E.2d at 193.
Based upon the foregoing, the Court holds that the type of evidence that is admissible in the mercy phase of a bifurcated first degree murder proceeding is much broader than the evidence admissible for purposes of determining a defendant‘s guilt or innocence. Admissible evidence necessarily encompasses evidence of the defendant‘s character, including evidence concerning the defendant‘s past, present and future, as well as evidence surrounding the nature of the crime committed by the defendant that warranted a jury finding the defendant guilty of first degree murder, so long as that evidence is found by the trial court to be relevant under
Finally, regarding whether the defendant or the Statе would first present evidence to the jury, as previously mentioned in Rygh, the Court indicated that “a defendant would ordinarily proceed first in any bifurcated mercy phase.” 206 W.Va. at 297 n. 1, 524 S.E.2d at 449 n. 1.
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to
(1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Further, just recently, in syllabus point two of State v. Fields, No. 34746, 225 W.Va. 753, 696 S.E.2d 269 (2010), the Court held that “[t]o safeguard the integrity of its proceedings and to insure the proper administration of justice, a circuit court has inherent authority to conduct and control matters before it in a fair and orderly fashion.”
Under the provisions of
[i]f the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life....
The Court, therefore, now holds that in the mercy phase of a bifurcated first degree murder proceeding, the defendant will ordinarily proceed first; however, the trial court retains the inherent authority to conduct and control the bifurcated mercy proceeding in a fair and orderly manner.
IV. Conclusion
Having answered the certified questions herein, this case is dismissed from the docket of this Court.
Certified questions answered.
Justice KETCHUM dissents and reserves the right to file a dissenting opinion.
KETCHUM, J., dissenting:
I dissent from the majority‘s opinion for two reasons.
First, the statute pertaining to the verdict and sentencing in murder cases,
I concede that the statute could be read—if it is constitutionally necessary for a fair trial—to allow bifurcated trials. And that brings me to the second reason for my dissent: I don‘t believe bifurcation gives criminal defendants a fair trial.
When this Court adopted discretionary bifurcation of the penalty and mercy phases of murder trials in 1996,1 it adopted an idyllic academic dream into our jurisprudence. The problem is that, in reality, it created a procedural nightmare that allows the State to introduce egregious, formerly inadmissible, “bad character” evidence at the penalty phase of the trial.
The lofty, ivory tower theory behind bifurcation is that it would help defendants in their quest to introduce evidence of good character. What happens in reality is that prosecutors encourage and seek bifurcation, and then use that bifurcated system to initiate the introduction of character evidence—before the defendant ever opens the door by introducing any character evidence. What I believe bifurcation has really done is assist West Virginia‘s prosecutors in their quest to bury defendants in irrelevant, misleading evidence of the defendant‘s bad character. Prosecutors proffer witnesses who know the defendant kicked a dog 20 years ago, or saw the defendant jaywalk on the way to the courthouse, or heard the defendant say an unkind word to his mother, and then argue to the jurors, “Is this the kind of person we ever want walking our streets?”
Unitary trials worked without a hitch until LaRock was decided in 1996. Since then, I believe first degree murder trials have become a legal nightmare. The facts of the case sub judice (and the cases mentioned in footnote 2) are typical examples. I have tried many unitary murder trials as a lawyer, and I never saw the procedural or evidentiary problems like we are now experiencing. The jury that heard the facts surrounding the crime determined mercy, not another jury many years later.
My practical experience taught me that one juror could shift the verdict from a lifetime-in-prison murder verdict, to a verdict of murder with mercy where the defendant had a shot at release in the future. Under a bifurcated system, where separate juriеs are adjudicating guilt and the penalty, that leverage by the defendant is largely lost. The second, penalty-phase jury begins knowing the defendant is guilty of murder, and the only question they must unanimously resolve is whether the defendant is entitled to mercy. The defendant begins this second phase essentially judicially stripped of his or her constitutional “benefit of the doubt,” which is exactly the opposite what is supposed to occur under
In LaRock and its progeny, the Court obviously was trying to ensure that defendants got a fair trial. The problem is, I think the bifurcated process that resulted is pretty much ensuring that defendants aren‘t getting a fair trial.
Accordingly, I respectfully dissent.
Notes
If a person indicted for murder be found by the jury guilty thereof, they shall in their verdict find whether he or she is guilty of murder of the first degree or second degree. If the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life, and he or she, notwithstanding the provisions of article twelve [§§ 62-12-1 et seq.], chapter sixty-two of this code, shall not be eligible for parole: Provided, That the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve, except that, notwithstanding any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years....
Notwithstanding the Defendant‘s raising the additional question for the first time before this Court and not the trial court, the Court has already resolved the issue regarding the imposition of standards to guide the jury‘s exercise of discretion in the mercy or penalty phase in State v. Miller, 178 W.Va. 618, 622 & n. 8, 363 S.E.2d 504, 508 & n. 8 (1987). Indeed, in Miller, this Court held in syllabus point one that “[a]n instruction outlining factors which a jury should consider in determining whether to grant mercy in a first degree murder case should not be given.” Id. at Syl. Pt. 1. In so holding, the Court noted that “[i]n jurisdictions where the decision to recommend mercy is left entirely within the discretion of the jury and is made binding on the trial court, it is uniformly held that an instruction which enumerates instances or suggests when a mercy recommendation might be appropriate is reversible error.” Id. at 622, 363 S.E.2d at 508.
State v. Guthrie, 205 W.Va. 326, 343 n. 25, 518 S.E.2d 83, 100 n. 25 (1999). Because“[A] judicial decision in a criminal case is to be given prospective application only if: (a) It established a new principle of law; (b) its retroactive application would retard its operation; and (c) its retroactive application would produce inequitable results.” Syl. pt. 5, in part, State v. Blake, 197 W.Va. 700, 478 S.E.2d 550 (1996). See also Syl. pt. 5, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979) (“In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity оrdinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, this Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions.“).
The Court further refuses to adopt the Defendant‘s argument regarding due process as a clear reading of the United States Supreme Court‘s decision in Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), does not even remotely suggest that the same jury must determinе both the guilt phase and the mercy phase. Rather, in Hicks, the judgment was vacated because under Oklahoma‘s statute, the defendant was entitled to have his punishment fixed by a jury. The Oklahoma statute was declared unconstitutional by an Oklahoma appeals court after the defendant had been sentenced. The defendant appealed, seeking to have his sentence set aside due to the unconstitutionality of the statute. The Oklahoma appeals court affirmed the sentence, finding that it was within the range of punishment that a jury could have imposed, despite the unconstitutionality of the sentence. Id. at 345, 100 S.Ct. 2227. The United States Supreme Court, however, found that the defendant was denied a substantive due process right when the appellate court fixed the sentence because, under the statute at issue, the defendant should have only been deprived of his liberty to thе extent determined by the jury in the exercise of its statutory discretion. Id. at 347, 100 S.Ct. 2227. In the case sub judice, the defendant simply has not been denied having a jury make the determination of mercy.