VanWoundenberg v. State
818 P.2d 913
Okla. Crim. App.
1991
Check Treatment

*1 prove LANE, Presiding Judge, specially the record which tends to that the charged by City fee of concurring: replacement any relationship to the fair Wewoka bears by the I the result reached agree with Rather, poly-carts. market value of the it However, disagree with majority. I that may speculated be the fair market that there was no evidence statement fifty of is less poly-cart value a that dollars presented incendiary to show an device was ($50.00) City charges fee for spontaneous evidence of used. Absent delivering may of the items. It also one be combustion, used, incendiary an device was City speculated that the has inflated the cigarette lighter nothing if than a more discourage replacement cost of the items to poly-cart. the fire in a match to start poly-carts. misuse or destruction of the burning The cart would then become an However, appellant’s conviction cannot be incendiary if it were used in an device premised upon The worth of speculation. attempt to set fire to the house. subject property is an essential element However, 1767.1(A)(1)Malicious Mischief Degree the crime of Third Arson and incendiary an device is not under use of worth must be evi- such established lessor of- these circumstances a included dence of fair market value. Because the fense 1403 Third De- under present any failed to evidence State gree Arson. I poly-cart, fair market value of would insufficient hold that the evidence is PARKS, dissenting: Judge, conviction. appellant’s sustain respectfully I the Court’s must dissent to determination that the evidence was suffi- support

cient to a conviction in this case. correctly

The Court determines that

term “worth” in the context of an arson synonymous

case with the “value” word it

as this Court has defined area Additionally,

larceny. majority proper- ly the correct for de- states that measure VanWOUNDENBERG, Sammy termining an fair item’s worth its market Petitioner, correctly also defines value. fair as the which a market value amount Oklahoma, Respondent. The STATE obligated buyer pay willing but not would willing obligated for an item from a but not No. PC-88-825. Peek, 242, seller. Jordon Appeals of Oklahoma. of Criminal (Okla.1954). However, fact ignores the Court Sept. 1991. only testimony regarding did “value” value, re- not concern fair market but the majority leaps then

placement cost. equals cost replacement

the conclusion that ignores the

fair market This fact value. purchaser poly-cart of a not a buyer City requires res-

willing because the buy poly-carts in order to receive

idents

trash service. under defini- Court, adopted by

tion further testimo-

ny required be to establish fair mar- would prosecution

ket free to value. any gather it re-

introduce evidence could

garding the market value the carts.

However, absolutely there is no evidence *2 County denying his

Muskogee post-conviction relief Case No. CRF degree murder 83-64. Petitioner’s first conviction and death sentence have been upheld by VanWoundenberg this Court *3 (Okl.Cr.1986). State, v. 720 P.2d Supreme subsequently United States Court a Petition for Certiorari. Van denied See Oklahoma, 956, Woundenberg v. 479 U.S. 447, (1986). 93 L.Ed.2d 395 Peti S.Ct. post-conviction first for tioner’s by relief the District was denied Court subsequent appeal of that denial was by affirmed this Court in Case No. PC 87- filed a Petition for 633. Petitioner second Supreme with the United States Certiorari denied in Court which was VanWounden 1036, Oklahoma, berg 108 S.Ct. v. U.S. 763, (1988). appli A second 98 L.Ed.2d post-conviction cation for Peti was filed in the was tioner District Court relief It is denied. that denial which Petitioner appeals. now alleges that he is entitled

Petitioner his sentence of death modified to have imprisonment pursuant Maynard life v. 1853, 356, U.S. 108 S.Ct. Cartwright, 486 (1988). con 100 L.Ed.2d 372 That decision intervening change in the law stitutes an Petition which did not at the time of exist appeals. we find previous er’s not previously exists for sufficient reason allegation and will asserting this of error of Petitioner’s conten address the merits O.S.1981, 1086, v. tion. 22 See Stewart 834, State, Cartwright the United Maynard In defen- Supreme found that States Court in- Cartwright’s was dant death sentence Autry, Appellate Asst. Public De- circum- David valid because fender, Norman, petitioner. for “especially hei- that the murder was stance nous, cruel” was unconstitu- atrocious or Gen., Henry, Atty. H. Wellon B. Robert Spe- in that vague applied as case. Gen., tionally City, Poe, Atty. Oklahoma Asst. find- jury’s held respondent. cifically, the Court “especially hei- the murder DENYING POST- OPINION nous, previ- or cruel” violated the atrocious RELIEF CONVICTION Georgia, in Furman v. ous dictates LUMPKIN, Vice-Presiding Judge: 2726, 238, 33 L.Ed.2d 346 U.S. S.Ct. (1972), Georgia, 446 U.S. Godfrey appealed to this Court Petitioner has (1980), 64 L.Ed.2d 398 100 S.Ct. District Court of from an order Contrary argument, required that the discretion of the Petitioner’s we which comprehensi- prohibited limited some sentencer be are not from such review under The lack of limitations and ble standards. Cartwright. Supreme Court and the provided in the instruction to the guidance reweigh Tenth Circuit refused to the evi- on this circumstance led one dence when Supreme to affirm the Tenth only policy failed because of this Court’s previous vacation of the death Circuit’s refusing it then existed of to reconsider the sentence. appeal aggra- death sentence on when one vating circumstance was found invalid. In jury in Petitioner VanWounden- fact, Supreme in Cartwright rec- berg’s given the same instruction trial was ognized policy automatically our new Cartwright Although a as in the case. *4 setting aside a death sentence one of when time, at the we now correct instruction aggravating several circumstances is found recognize insufficient as it failed to it was signifi- to be invalid and stated that the or limit the sentencer’s properly channel cance of that decision was a matter for the determining in im discretion whether to state courts to decide. pose a death sentence. of such a harmless error improper the instruction While analysis stage sentencing to second errors aggravating of causes the approved by Supreme has been the heinous, “especially atrocious or cruel” to Texas, 249, in v. 486 108 Satterwhite U.S. fail, does not necessitate an automatic it 1792, (1988); S.Ct. 100 L.Ed.2d 284 Wain modification of the death sentence to life. 78, Goode, 378, wright v. 464 U.S. 104 S.Ct. finding In addition to the murder (1983); Florida, Barclay 78 L.Ed.2d 187 v. heinous, “especially atrocious or cruel” was 939, 3418, 463 U.S. 103 S.Ct. 77 L.Ed.2d beyond jury found a reasonable doubt (1983)and Stephens, 1134 Zant v. 462 U.S. other circumstances two 862, 2733, (1983). 103 77 S.Ct. L.Ed.2d 235 by murder committed existed: the serving defendant while a sentence of im- argues Petitioner also that this felony prisonment on conviction of a and analysis harmless error and re Court’s probability there existed a that the defen- of weighing right the evidence violates his dant would commit criminal acts of vio- sentence, jury pursuant to have a set his continuing lence that would constitute a O.S.1981, 22 provides 926. Section 926 § society. threat to jury may, upon request that the and of the aggravating circumstance is When an shall, punishment in defendant assess the invalid, this has the found to be provision the first instance. This is activat authority any remaining aggra to review upon only specific ed the defendant’s re vating mitigating circumstances and the ev sentencing. quest jury specific for Such a validity of the idence to determine request by made Petitioner VanWounden- State, P.2d death sentence. Castro v. 745 in berg is not reflected the record. (Okl.Cr.1987), (Okl.Cr. 394 749 P.2d 1146 provisions O.S.Supp.1989, of 21 1987) denied, (Opinion Rehearing), on cert. 701.10(A) 701.10(B), require a sen- §§ 971, 108 1248,

485 U.S. S.Ct. 99 L.Ed.2d 446 tencing proceeding jury before the same in State, 562, (1988); v. 563 Stouffer proceedings initial trial unless waived 1036, (Okl.Cr.1987), cert. denied 484 U.S. jury If by sentencing the defendant. 763, (1988). 98 L.Ed.2d 779 Title 108 S.Ct. waived, sentencing shall be conducted 701.13(C) O.S.Supp.1986, 701.- § § before the court. 13(F), to make a sen authorize this Court previously have held that We Section factual tence review which includes sub conjunction read in to be with and a determina stantiation of verdict O.S.1981, O.S.Supp.1985, seq., 701.7 et validity of the sentence. A tion of the § 701.13, provid- and 22 reweighing circum of § appellate of mitigating implicit factors is for this Court’s review stances versus reading judgments and sentences. Such a to such review. argument own it would be shows that a defen- Petitioner’s provisions of these sentencing requested statutory right impossible of him obtain the dant’s statutory right to stage explicit to this Court’s relief at this since there is no subject grant of that sen- appropriateness authority review the such relief. State, 795 P.2d Livingston tence. See policy We remain committed to our Moreover, Petitioner is analysis applying a harmless error in he this Court’s review as prejudiced sentencing review of errors in the second greater not receive a than will sentence stage capital approach case. This jury. set reweighing circumstances against mitigating evidence to deter- argues that a ret Petitioner further validity mine the of the death sentence application of this harmless er roactive focuses on individual circumstances policy ror/reweighing would violate homicide the characteristics each prohibitions federal and state constitutional It pen- ensures that the death defendant. against ex As we stated post laws. facto “wantonly” “freakishly” alty will not be Castro, P.2d at this Court’s Georgia, at imposed. Furman U.S. statutory powers exercise of its review 310, 92 S.Ct. at 2762. an such a manner does not constitute ex *5 post violation. fact, duty facto this In it is the role and the in case reweigh any Court to evidence additionally Petitioner contends is found if that where error to determine authority independently that this Court’s to beyond harmless a reasonable error was reweigh aggravation and miti evidence in doubt, may af upon which the verdict be gation validity to of the determine the firmed, error or fundamental which would is limited to the review of a death sentence require judgment a reversal of appeal. argues that as the Post- direct He sentence. Act, O.S.1981, Procedure 22 Conviction seq. specifically 1080 et does not describe § carefully Peti Having examined as 21 powers of this Court and tioner’s and the District Court’s O.S.1981, 701.18(F), re appellate restricts § law, findings we of fact and conclusions appeal, this lacks view to the direct to is not entitled relief. find that Petitioner reweigh authority independently to presented during upon Based the evidence against mit aggravating circumstances trial, sentencing stage of Petitioner’s igating evidence. properly jury was not we find that as circum instructed is correct when he states Petitioner hei “especially stance that the murder Act the Post-Conviction Procedure Therefore, nous, or cruel”. atrocious powers fails to of this enumerate found to be However, analysis Court. our does end However, review, appellate in our invalid. there but turns to the well established remaining cluding reweighing of the valid a statutory rules of construction. When two mitigat and the circumstances matter, subject statutes address the same evidence, reveals that evi sufficient effect, if provisions given both are be ag support remaining dence existed to intent such effect would not defeat the beyond a reason gravating circumstances Legislature. Company v. Inexco Oil imposition and the of the death able doubt Commission, P.2d Corporation order penalty as result. Smith, P.2d (Okl.1981), State be, should of the District Court hereby together it Reading provisions the above AFFIRMED. Legislature in- apparent that the becomes powers the same tended this Court to have P.J., BRETT, J., in LANE, concur it has in a on Post-Conviction as review results. appeal. The failure to read two direct JOHNSON, JJ., concur. in PARKS and provisions in such a manner reflected LANE, concurring Presiding Judge, in

result: majority’s agree most of the

While I with suggestion exception to the

opinion, I take O.S.1981, applies a murder § degree case the death

in the first where requested. my opinion, In

penalty is applicable 701.10 is statute

controlling juries fixing punishment provides: It

death cases. Upon adjudication

A. conviction

guilt of a defendant of murder degree,

first the court shall conduct a separate sentencing proceeding to deter- also, See 736 P.2d 541. mine whether the defendant should be death, imprisonment sentenced to life parole imprisonment.

without or life

proceeding shall be conducted the tri- judge

al before the same trial practicable presentence

soon a without added).

investigation. (Emphasis

I believe that this statute eliminates the request jury sentencing

written re-

quired by 926. Section JAMES, Petitioner,

Terrance A. Oklahoma, Respondent. STATE

No. PC-88-1053. Appeals Criminal Oklahoma.

Sept. 1991.