*1 MANDATORY SENTENCE REVIEW O.S.Supp.1987,
Pursuant (1) 701.13(C),
§ we must determine whether imposed
the sentence of death was under passion, prejudice any
influence of or other (2) factor,
arbitrary whether evi- supports jury’s finding ag-
dence of an
gravating circumstance enumerated in §
O.S.Supp.1981, carefully 701.12. After re-
weighing aggravators all mitigating
evidence, we have determined the “hei-
nous, aggravator upon atrocious cruel” or penalty
which the death was based was factu- substantiated,
ally amply supported by
the evidence at trial. We further
find no indication the record that imposed
sentence death was under passion, prejudice,
influence
arbitrary factor.
We find no in Appellant’s reversal, warranting
case modification or dis-
missal, and therefore AFFIRM the
and sentence of the trial court.
JOHNSON, P.J., CHAPEL, V.P.J., and STRUBHAR, JJ.,
LUMPKIN and concur. Benjamin TIGER, Petitioner,
Thomas Oklahoma, Respondent.
The STATE of
No. C-91-973. Appeals
Court Criminal Oklahoma.
June Aug.
As Corrected
Rehearing Denied Oct. *2 County arraignment Mayes for formal guilty. At plea he entered
where filed a Amended that time Second 1,1991, February Information. the State On Particulars, alleging aggra- filed a Bill of two (1) vating was circumstances: the murder avoiding purpose committed for prosecution; a lawful arrest or preventing (2) probability there that the existed of vio- would commit criminal acts defendant continuing that would constitute lence society. threat to 1991, 11, Tiger February On announced sought change plea. to his Before that he sworn, accepted the trial court Tiger’s guilty Amended plea of Second This was entered Information. blind the State for without recommendation punishment. After an exten- appropriate an hearing aggra- sentencing which both sive vating present- mitigating evidence were ed, found existence the trial court August On aggravating circumstances. two 29,1991 Tiger to die the trial court sentenced injection. by lethal ORDER GRANTING WRIT 12,1991 trial September court con- On OF CERTIORARI evidentiary hearing Tiger’s Ap- an ducted Petitioner, September On Guilty Plea of plication Withdraw Tiger, charged by Benjamin Thomas Hearing. Request Evidentiary The trial for Degree Afore- with First Malice Tiger’s application withdraw court denied Court of thought in the District Murder timely filed his guilty plea. Tiger has his County in On Mayes Case No. CRF-86-98. and Mandato- for of Certiorari Petition Writ 12, State filed an September 1986 the ry Imposition of Death Sentence Review on Degree alleging First Amended Information petition perfected his for Penalty and has Felony September, From Murder. of his and sen- certiorari review January 10, Tiger was incarcerated tence. committed in that Tennessee for murder he by Ti- proposition on De- raised Agreement We address one Tiger state. executed Agree- meritorious. ger the federal Interstate that we find tainers under Act.1 He waived extradi- ment on Detainers Mayes
tion under that Act stand TRIAL SUBJECT THE COURT’S County of Glen Rothenbush.2 for the murder MATTER JURISDICTION January Tiger was returned On error, Tiger al- proposition In his first County Mayes Jail to await trial Information leges Amended that the Second The examin- of Glen Rothenbush. the death by failing to rights his constitutional violated magistrate preliminary examination ing held constituting the elements 17-18,1991 state facts Tiger January and ordered felony 22,1991 murder infor- underlying January for trial. be bound over On brought the District Court mation. Tiger was before 111(e). seq. § art. § et.
1. 18
U.S.C.App.
U.S.C.App.
guilty plea
nonjurisdic-
A
all
prepared
State,
waives
to meet. Miller v.
827 P.2d
(Okl.Cr.1992);
defects in the information.
tional
Frederick
Plotner v.
(Okl.Cr.1991).
(Okl.Cr.1988);
811 P.2d
On P.2d
Nunley
plea,
*3
guilty
of a
our
(Okl.Cr.1983),
certiorari review
review 660 P.2d
1056
cert. de
(1)
nied,
inquiries:
867, 104
205,
is limited to two
whether the
S.Ct.
78 L.Ed.2d
guilty plea
knowingly
(1983);
State,
Argo
107,
was made
and volun
179
v.
88 Okla.Crim.
(2)
(1948);
tarily;
449,
Burnett,
and
whether
the district court
P.2d
451
parte
200
Ex
plea
subject
147,
accepting
guilty
matter
78 Okla.Crim.
145 P.2d
442-443
jurisdiction
Id.;
(1944).
accept
plea.
King
v.
pres
Because the information in the
State,
(Okl.Cr.1976); Boykin
mation on
proce-
governing pre-trial
Title
September
on
1986.
mation was amended
Legislature did not intend the
dure. The
January
again
The information was amended
provisions of
Sections 401-413
notice
Title
guilty plea
He
a
to that
1991.
entered
had,
jurisdictional;
if it
22 to be
would
11,1991.
February
He
amended information
general provisions
have included them
August
to death on
was sentenced
subscription,
Chapter 4 of
where
Title
plea,
the
sought
He
to withdraw his
and verification of the infortoa-
endorsement
September
application
the
on
court denied
required.
Sections 301-304 of
tion
object to or
1991. Petitioner did not
not,
clear
seems
the
Title
Since
sufficiency of
complain of the
the
a
Legislature intended them have
differ-
Court, despite the
appealed
until he
to this
provisions
significance than the
ent
years
he
over
to do so.
fact
had
five
the
invoke the
district court.1
in
the
Because I continue to believe
argument!the
can
be a serious
Nor
there
information,
any,
“jurisdictional,”
if
the
is not
juris-
do
have
of this
district courts
State
I
waived the
and because
believe Petitioner
properly
an otherwise
endorsed
diction when
I
appeal,
must
to the Order
dissent
filed. The district courts of
information is
granting certiorari.
“to
this State are successors
the
jurisdic-
all other courts” which earlier
in
I
the
action
continue
view
Court’s
proceedings “in civil matters
original
tion of
(Okl.
Miller v.
879-883
of state
proceedings for the violation
Cr.1992)
V.P.J.,
(Lumpkin,
whom
John
O.S.1991, §
In short,¡the
91.1.
statutes.”
son, J.,
concurring in
joins,
part
dissent
'our
courts have
because
district
disregard
part)
in
a
for
ing
as blatant act of
say they do.
laws
statutory
plain language
language
the
do ^not
I
The earlier cases cited Miller
Legislature.
the
enacted
Oklahoma
in situations where
that. Even
repeat
cases cited there
contradict
shall not
reversed,
Rather,
there was no mention
my
pres
this Court
support
position.
here
person
addition,
to believe
provisions
mitted and sufficient cause
In
of Sections 251-269
words,
procedure
provide
in Oklahoma
charged
of Title 22
evidence
it. In
committed
be
criminal
which must
utilized
initiate
offense must
of each element
charges
court. Unlike
federal
in the district
hearing
magistrate
presented
in a
where
system,
an
a defendant is not afforded
where
charged
right
present!
person
a
be
has
charges
opportunity
to know and understand
opportunity witnesses and
cross-examine
¡
allegations
except
him
person
can
re
evidence before
bé
indictment,
charged
person
with a
charge.
quired
See State v.
to enter a
given
is first
notice of
Oklahoma
(Okl.Cr. 1990).
Berry,
799 P.2d
then
filed in the case and
effect,
requires
procedure
Oklahoma
through
prelimi
at the
the evidence
prove
court
before
person charged
nary hearing.
can
Before
required to
defend
offense,
magistrate
held to answer for the
|
charges.
against the
shows a crime was com
must find the evidence
that failure to list all the elements of crime
II. B.
A.
simply
But we need not
that an
infer
infor-
view
This
is one shared
the United
specific enough
mation which is not
is not
Supreme
States
Court and can
seen in
jurisdictional.
Williams,
In United
States
*5
States,
early Coffey
cases as
as
v. United
116
58,
595,
341 U.S.
71 S.Ct.
4H
pleas
Government's demurrers
crime ... and decide
issues
zance of the
statute,” Id.,
strike,
problem
lies
the district court did
its motions
under that
n court,
think,
not,
as the court below seemed
Instead,
pleas.
another area.
held
refuse
act on the
insufficient in law to
were
abate
was also set forth
Roche
This view
prosecution.
ruling
In thus
the criminal
21, 26-27,
Ass’n,
Evaporated
319 U.S.
Milk
questions of
law decisive of
issue
(1943),
938, 942,
indictment was not one which
(citations omitted).
Lane,
also
Goto
or could be continued to hear was at
68 L.Ed.
265 U.S.
S.Ct.
which,
irregularity
proper
if the
most an
Eckart,
(1924)3; In
re
*6
abatement,
plea
not
of a
in
did
482-83, 484-85,
638, 638-39,
S.Ct.
jurisdiction
court.
affect the
of the
(1897).4
L.Ed. 1085
by
a
Nor does this case involve
refusal
adjudicate
summary,
In
even if an information does
prop-
issues
the district court to
law,
it,
by
sustaining
specificity required
...
contain the
erly presented to
In
not
held
a
class of cases it has been
that
trial court
Where the Court said:
possessing general jurisdiction
of
of
class
petitioners
court which the
were
The circuit
in
is embraced the crime
offenses within which
undoubtedly
jurisdic-
had
tried and convicted
sought
in
is
subject-matter
persons,
to be set forth
the indictment
tion
and of their
possessed
authority
imposed
of
to determine
suffi-
was not in excess of
and the sentence
and,
indictment,
power.
ciency
adjudging
to
its
The offense
neither
an
it
of
sufficient,
impossible
jurisdic-
an
law.
colorless nor
one under the
acts within its
be valid and
indictment,
put
tion,
The construction to be
on the
thereun-
and a conviction
given
sufficiency
its
and the effect to be
questioned
corpus,
der cannot be
on habeas
stipulation were all matters the determination
certainty
a lack
or other defect in
because of
of
primarily
that court.
If it
of which rested
in the indictment
the statement
them,
determining
judgment was
erred
its
averred to constitute a crime....
...,
subject to
not for that reason void
but
regular
course
writ of error.
correction
apply
plea
principle would
to a
of a
The same
presented
applica-
questions
involved the
If
Clearly,
former
in these cases
conviction.
principles,
tion
constitutional
that alone
only
jurisdiction
try
has
and de-
court not
not alter
rule.
raised,
imperative
question
is its
cide
duty to
If
court makes a mistake on
do so.
complaint by petitioner
Involving
that was
a
he
trial,
may
is
which
be corrected
such
error
knowing
degree
murder without
convicted of
errors;
correcting
by
such
modes of
usual
convicted,
he
of murder
for which
jurisdiction to
the court had
decide
but that
therefore,
the court had no
to sen-
by
plea,
upon
both as
Court,
the matter raised
noting
tence him. The
after
fact,
law and of
cannot
doubted.
matter of
noting
jurisdiction and
that
court had
* * *
always
may
It
that it is not
jurisdiction,
confessed
committed was "in the exercise of
go
very easy
what
to the
jurisdictional
to determine
matters
one
a
and
defect,"
which does
action,
court,
its
so
make
noted:
erroneous,
general
nullity.
when
But
analogous
principle
to that of
The case is
by
indictment,
when
court has
rule
that
upon an
trial and conviction
charged,
party
offense
and of
law the
are
to be insuf-
facts averred which
asserted
charged,
judgments
who is
nulli-
against
so
an
the stat-
ficient to constitute
ties.
ute claimed
violated.
go
Coffey defrauded,
that
in and
itself does
to the
the court
infer that
poses
defraud,
attempted
the court. Whether it
the United
see, e.g.
problem,
Twining v.
Due Process
States.
It is a sufficient answer to this
78, 112,
Jersey, 211
New
U.S.
S.Ct.
objection
say
that
claimant in
his
(1908);
Burke,
Davis
L.Ed. 97
U.S.
answer denies the
of the first
210, 212,
21 S.Ct.
this is not
issue
B.
jurisdiction,
the issue
can
waived. The
above discussion shows this does not involve
Other
courts have been even more
subject-matter
jurisdiction.
question
The
straightforward
in labeling
complaint
then becomes whether it can be waived.
objected
waived if it was not
to below.
In
believe
can.
Pheaster,
(9th
United States v.
F.2d
above,
raised,
Coffey,
a defendant
Cir.1976), a defendant
violating
convicted of
among
complaints,
that the information
kidnapping
objected
appeal
federal
laws
on
was not sufficient
the court
did not
because an
to allege
indictment failed
jurisdiction.
therefore have
transport,
element of interstate
which made
The
complaint
Court
first deemed the
crime fall under federal
Al-
waived,
complaint
not “formally
as
though the court noted failure of an indict-
court,
raised in the circuit
pre-
are not
ment is a
which
any
defect
can
raised at
exceptions,
sented
a bill of
and cannot be
time,
judicial economy required
it added
ob-
Id.,
here.”
considered
Assuming, point jections appeal as raised will not result here, can necessary appear be raised it is reversal “if count, urged that the first founded on form or fair construction be found section is insufficient because the within the terms of the indictment.” Id. at count set forth facts from which 361. is a There valid reason for this: “[s]uch good There is a reason for raising suggests a murder. long delay in the issue incorporating lacking. motivation of that: it is not It states Petitioner purely tactical appeal event ground engaged convenient killed his victim while crime against jury went defendant.” degree burglary. verdict Court of first The would reasoned, Furthermore, “the reverse, Id. notice, on lack of negate possibili delay tends to fact of degree burglary because the elements first a de prejudice preparation ty of Here, they laid need be. were not out. Czeck, Id. also United States v. fense.” applicable statutory provisions The state Cir.1982) (8th (“Where 1195, 1197 F.2d information must contain: the indictment or ques sufficiency of the information is action, specifying the 1. The title of the appeal, first time it will be tioned for the to which the indictment name of the court by no unless defective that found sufficient so presented, and the names or information is it be construction can said reasonable parties. charge the for which the defendants offense convicted”; clearly if it is sufficient were constituting A acts 2. statement ‘of sub “all the essential elements states offense, ordinary and concise lan- offense.”). stance’ guage, and in such manner enable understanding know person of common At least three state courts reached what intended. Puryear, See State v. similar conclusions. (1979) (Court Ark. O.S.1991, § reverse conviction because
refused
The indictment or information must
subtle,
pre-trial motions were directed
no
regards:
and certain
direct
indictment, and defendant had
party charged.
1. The
crime); Selley
underlying
actual notice of
charged.
(Fla.App.1980)
403 So.2d
(even
charging information did not
though
particular circumstances of the of-
3. The
“against the will
battery was
state
necessary
charged,
fense
when
victim,”
be
would not be reversed
conviction
complete offense.
constitute a
dismiss
cause motion to
defective
O.S.1991, §
alleged
“specifically
directed to the
in an
or infor-
The words used
indictment
defect”;
“unless
an omission is waived
such
construed
their usual
mation must be
wholly
charge
fails to
the information
language, except
acceptation, in common
Additionally,
judge
crime.”
instructed
law,
phrases defined
words and
language.);
omitted
on the
according
legal
to their
are to be construed
Fields,
128, 131, 132(Fla.App.1980)
390 So.2d
meaning.
*8
(State appeal
order
trial court’s
arresting judgment
information for
because
O.S.1991, § 407.
22
specify
not
the crime which was
burglary did
or
No indictment
insuffi-
committed; appeals court re
intended to be
trial,
cient,
or
judgment,
nor can the
scrutiny,
degree of
applies
lesser
verses
affected,
reason
proceedings thereon
observing
to label
it would
“anachronistic”
imperfection in
or
or fa
every pleading error as fundamental
prejudice
not tend
which does
form
Batson,
tal);
Or.App.
State v.
rights
the substantial
defendant
(1978) (Indictment
at
P.2d
added)
(Emphasis
upon the merits.
in
specify
did
crime
tempted burglary
not
O.S.1991, § 410.
breaking and
once
tended to be committed
entering completed;
defendant
because
long ago held that
common-
This Court
below,
could
object
the indictment
he
of criminal
doctrine of strict construction
law
appeal.).
abrogated by
raise it on
proceedings
and
has
laws
statutes,
liberally
techni-
which are
V.
State, 64 Okl.Cr.
cally construed. Burks v.
v.
mations.
It does
the strict con
presumed
ignorant
to be so
he cannot
placed
pleadings,
struction
on those
once
comprehend
meaning
the common
of words
ordinary
if a
makes them sufficient
every day
English
used
language.
understanding
know what
was intended This information states the crime with suffi-
They place upon
the terms used.
clarity
apprise
cient
him of the act he is
duty
courts the
hold them
sufficient unless
alleged to have committed. It also sufficient-
prejudice
are so
defective
ly
states
violation
state law to confer the
rights
upon
of the defendant
the merits of his
Accordingly,
it is not
138, 145,
case.”
Clark v.
Okl.Cr.
73 fatally
again
defective.
I will state once
(1937). Furthermore,
a strict Court should not
antiquity
reach back into
statutory
public
of a
definition
offense is not
and resurrect
bones of
pleading
Code
necessary in an information.
Fulkerson
many
should have been laid to rest
(1920).
17 Okl.Cr.
a wooden board. This seems clear to
certainly Petitioner, clear to seemed who
pled guilty gave a suffi-
cient factual for his crime. It basis was not
necessary underly- to list the elements of the States, ing felony. Thornton v. United Cf. CHEATHAM, Appellant, Charles Leon 70 L.Ed. (1926) (in charge conspiracy, “the pleading require rules criminal to not Oklahoma, Appellee. STATE of degree same of detail an indictment for conspiracy stating object of the con- No. F-90-649. spiracy, as if charging it were one the sub- Appeals Court of Criminal of Oklahoma. offense.”). stantive June certainly agree
While I pro- would have vided more notice State’s Rehearing Aug. Denied the Petitioner to list the elements of first degree burglary, to do failure so here is not
fatal, especially when Petitioner waived
right complain about the
entering a knowing voluntary plea
guilty to it. consistent appli- This is with our
cation of waiver rights Constitutional Counsel and trial. To hold otherwise
would position be to to the adhere untenable presumed while a to know the
law, knowledge evaporates when ishe ease,
charged with a of it. violation
Appellant opportunity object
