Welch v. State

remedy grace peri- either alternative or a paid owed the taxes money she had on the adopt holding concerning od. We our that was stolen from her. When she discov- interpretation of tax I money statutes Holt ered that her had been stolen Holt applies hold that it here as well. immediately returns, filed amended federal and sued the Internal Revenue Service when ¶ 19 The Tax Commission claims that be- her claims for refund were denied. After refund, seeking cause Holt was rather than Holt won her against suit the Internal Reve- resisting payment “of an assessment of immediately nue protest Service she filed her taxes,” taxes or additional lan- is the § under 226 and adversary proceed- filed her guage § § of remedies 226 were ing in bankruptcy against court the Tax disagree. available to her. We Unlike, Commission. the situation we dealt ¶ 20 We hold that the Tax Commission’s Stallings, with in paid any Holt never taxes denying June 1995 letter Holt’s claim for voluntarily. Stallings supports posi- Holt’s refund made in her amended return falls tion, not the Tax Commission’s. meaning within of the term “assessment ¶ 24 For the reasons discussed taxes,” of taxes or additional as used in opinion we hold that Holt is entitled under 226(b) § protest In to. Holt’s tax before the § 2374 percent per to interest at six annum Tax expressly Commission she referred to from payment by the date of her of the letter, the Tax Commission’s June disputed paid amounts she had to the Tax protest and stated that her was “filed in Commission until the date those amounts § accordance with During 68 O.S. 226.” were refunded. “yes” We therefore answer proceedings bankruptcy before the court and question. to the certified concerning right this Court Holt’s to a re- fund, the Tax Commission never claimed that QUESTION CERTIFIED ANSWERED. protest Holt’s satisfy did not the notice re- 226(b). § quirements Not until it had lost KAUGER, C.J., SUMMERS, Y.C.J., merits, only

on the remaining and the issue HODGES, LAVENDER, SIMMS, right was Holt’s to interest did the Tax Com- HARGRAVE, OPALA, JJ., concur. satisfy mission claim that Holt had failed to WILSON, J., 26 ALMA concurs in 226(b). requirements § the notice part; part. dissents ¶ 21 The Tax Commission claims that our opinion Stallings v. Oklahoma Tax Com

mission, supports OK satisfy

its claim that Holt failed to the notice 226(b).

requirements § Stallings does not

support position, the Tax Commission’s how

ever. 1998 OK CR 54 ¶ 22 Stallings plaintiffs, we held that Gary WELCH, Appellant, Roland employees, retired federal civil service had 226(b)’s satisfy § require- failed to notice they paid ments because had their taxes Oklahoma, Appellee. STATE protest give without failed notice of plain- their intention to file a lawsuit. The No. F-96-692. Holt, Stallings,

tiffs in unlike knew or should Appeals Court of Criminal of Oklahoma. potential rights have known of their when they returns, voluntarily paid filed them but 5, Oct. 1998. earnings taxes on them anyway. retirement Rehearing Dec. Denied Here, Holt could not establish her right to a refund until she discovered the loss, against

theft and won her suit the Inter-

nal Revenue Service. When Holt filed her

original mistakenly thought returns she she

1235 Robertson, Tulsa, P.

Joe for trial. Loring, Attorney, Alicia Lit-

Ben District tlefield, Miami, Attorney, District Assistant for the at trial. State Autry, City, Oklahoma David appeal. Edmondson, Attorney General W.A. Drew Oklahoma, Whittaker, Assistant Robert General, City, Attorney Oklahoma for the appeal. State on OPINION LUMPKIN, Judge: Gary 1 Appellant Roland Welch was by jury Degree tried and convicted of First (21 701.7), O.S.1991, No. Murder CRF- Case 94-302, in the District Court of Ottawa Coun- ty. found the existence three aggravating circumstances and recommended punishment The trial court the of death. judgment accordingly. From this sentenced perfected and this sentence appeal.1 ¶ 2 Claudie Appellant and co-defendant degree of first Conover were convicted the murder Robert Hardcastle. The District of a and granted Court motion severance (10) approximately ten Appellant was fried The months after co-defendant Conover. case, facts of are set forth Conover this (Okl.Cr.1997). P.2d 904 24, was June 1997. The case Appellant's was in this State's brief filed 1. Petition Error filed 6, 1996, September July and an Amended Court on Court 1997. Oral was submitted the Ap- was filed March 1997. Petition Error argument was held October 1997. February The pellant’s filed brief was from the half of duplex. PRE-TRIAL ISSUES victim’s the Davis testified that he commented to wife his and error, assignment Ap- 3 In his sixth hoped Conover that he the victim “win- pellant contends the trial court never ac- ning wrestling his match.” Conover said quired subject jurisdiction matter over the something get- to the effect that “someone’s allege case as the Information failed to all of ting a spanking over deal.” The State murder; specifically, the elements of malice sought to admit Conover’s statement as that aforethought.” the element of “malice O.S.1991, co-conspirator of a under 12 felony against Appellant Information filed 2801(4)(b). initially The trial court sustained pertinent part: read in Appellant’s objection finding the evidence in- support sufficient to of a existence con- IN THE DEGREE MURDER FIRST spiracy. right The State reserved the TITLE 21—701.7 it recall witness after had established defendants, ... day That said on the (Tr. Vol.5, conspiracy. existence of the pp. aforesaid, year1 County and and 1162-64). case-in-chief, Near end of its aforesaid, concert, acting State while again attempted the State to introduce the other, unlawfully, each with the did willful statement. This time the court admitted ly, feloniously, authority and without Appellant’s objec- statement and overruled law, premeditated design and with finding conspiracy tions the existence of a Hardcastle, effect the death one Robert had been established and that the statement being, a human did then kill and there one during was made and in furtherance of the Robert of a Hardcastle means knife conspiracy. blade, sharp having pointed and a appeal, Appellant 6 Now on as sharp, broken which with bottle which ruling serts trial court as the was error cut, the said defendants did and stab slash support finding evidence did not of a Hardcastle, body of the said Robert conspiracy. A agree. We statement causing body mortal wounds in against party offered is and made his said Robert Hardcastle from which mortal ment of persuaded us to alter that what he against the al claim that Parker v. case. We have filed sufficiently provided over, wounds the languish ¶4 (Okl.Cr.1996) previously against Id. at 910. This is the same error is must defend previously defendant and co-defendant at 909-10. rejected die, said denied. should not Accordingly, ... Robert Hardcastle did found this Information against notice of the (O.R.l). felony Claudie apprised view. applied Information trial. We have Conover. addition has not assign him charge Con ments of 2801(4)(b)(5). non-hearsay therance of their conspiracy; the trial court ^[4] during conspirator conspiracy. spirator’s P.2d co-conspirator during the ^[2] proven by both the defendant and the statements furthered the reliability 295-96 statements duration Id. at 296. The declarant were substantive evidence [3] the statements were made finds: See a preponderance hearsay. also Omalza conspiracy a[1] of the and are satisfy conspiracy course and conspiracy; conspiracy parties admissible is admissible goals of evidence alleged only A co-con- O.S.1991, require- existed; to the in fur where must co- may alleged the trial court consider the TRIAL FIRST STAGE ISSUES hearsay reaching in decision. statements its A. prosecution, “In a conspiracy Id. the critical circumstances, acts, assignment inquiry 5 In his first of er is whether ror, Appellant parties contends he denied a fair and conduct of the are of such a was trial improper hearsay character that minds of men admission reasonable Larry testimony. may Davis at trial that conclude therefrom that an unlawful testified Davis, while agreement he and co-defendant were vis State v. P.2d Conover exists.” 823 (Okl.Cr.1991) 367, iting, they “banging” coming quoting heal’d noises 370 States United (10th prior as Kendall, 1426, Cross-examination Cir. v. 766 F.2d purpose of im is for the 1985). convictions allowed credibility. 12 peaching a O.S. defendant’s ¶ Here, of an was no evidence there However, inquiry is limited that victim, agreement joint plan to kill the nor or may go not into the de prosecutor statement was evidence that Conover’s there State, 79 Little v. tails of the convictions. of that during was or furtherance made (1945). P.2d 772 See Okl.Cr. most, joint plan. showed At the evidence (Okl.Cr. State, v. 721 P.2d Britt run- action between the two defendants 1986). Any inquiry in the prosecutor’s error beating ning him down victim invited error as this case must be deemed death, after occurred Con- conduct which during his initially raised the issue Appellant Therefore, we over’s statement was made. Appellant testified direct examination. admitting the find the trial court erred in spent “some direct examination he had excep- co-conspirator statement under the that he was re penitentiary, time” tion. reformatory from at Granite leased only spent had and that he March ¶ However, do find the state- (21) (90) days twenty-one ninety of a his last O.S.1991, ment itself inadmissible. Under prosecutor’s at Granite. The month sentence 2803(1) describing explaining a statement or inquiry on into the offense cross-examination an made while the declar- event or condition serving at time for which was condition, or perceiving ant event was Granite, other the details of that offense and immediately exempted thereafter is from prior Court convictions was invited. This hearsay prohibition and is admissible as long appellant an cannot com has held that present impression. state- sense Conover’s invited, plain he and that of error which hearing immediately upon ment was made predicated upon er cannot be such reversal next and offered coming the noise from door State, 1255, 1259-60 ror. Pierce v. 786 P.2d Therefore, explanation for that noise. (Okl.Cr.1990); Dutton any admitting under error statement (Okl.Cr.1984). 1134, 1139 exception co-conspirator was harmless as cross-examination, during 11 Also properly the statement was admissible as inquired Appel Further, prosecutor as to whether present impression. sense as lant was aware that co-defendant Conover falls a well established ex- comment under murder, degree charged been with first had rule, hearsay there no ception to the subpoenaed he been as wit whether had right Appellant’s confrontation. violation of Appel trial and whether ness for Conover’s assignment error Accordingly, this is de- in that lant had “come forward case nied. your testify transpired help as to what buddy out.” B. Appellant’s post- 12 Reference to assignment of 9 In his second silence, solely impeach for used arrest albeit error, im prosecutor cross-examination, asserts a vio purposes on ment inquired prior into the details of his properly rights under the due lation of infringed upon right Amend process convictions and of the Fourteenth clause why Appellant he had not silence when asked to the United States Constitution. ment (Okl.Cr. your help trial “to come forward Conover’s Wood v. P.2d 1987). However, subject to Initially, only violation is buddy we review such out.” analysis. Appellant tes objection Id. was raised harmless error plain error no subpoenaed to Simpson inquiries.2 tified on re-direct he Appellant to these called testify was never at Conover’s but brief, insufficient to raise appellate This reference is 18 of counsel. footnote number his alternative, asserts, of of assistance counsel that trial the issue ineffective that claim at this object inquiries therefore do not address the failure to counsel's time. question assistance of constituted ineffective offense, testify. Considering testimony particular, Appellant’s that role in the Therefore, Appellant’s guilt, the evidence of substantial we find error in no the demon- beyond we conclude the error was harmless stration. Accordingly,

a reasonable doubt. this as-

signment of error denied. ¶ error, assignment 17 In his fourth

C. of Appellant challenges jury the instructions Appellant complains ¶ 13 in his and finds error in the court’s failure to a assignment third of error that demonstra give instructions on the lesser included of- reversible, re-enacting tion the crime was degree depraved fenses of second mind mur- prejudicial error. He the claims demonstra degree manslaughter der first by means danger tion lacked and that the relevance dangerous of a An weapon. instruction on prejudice outweighed any proba unfair far degree by second requested Ap- murder was tive value. pellant by finding but refused the trial court ¶ Nading 14 State’s witness Donnie testi- the support evidence insufficient to an such fied that observed assault on he the the Appellant’s request pre- instruction. past victim area. as he drove He testi- issue appellate served the review. seeing Appellant fied to man and another observing Appellant attack the victim and to Initially, degree second de Nading’s the victim. With Mr. stab assis- praved mind not a murder is lesser included Pendley, prose- tance and that of Officer degree offense of first malice murder. Will cutor attempted to demonstrate the' assault. 1074, ingham v. objections, Over the court al- Therefore, the trial court not err did prosecutor position of lowed the to take the refusing give the instruction. victim, Pendley posi- Officer to take the Appellant’s complaint lack about the Nading tion of co-defendant Conover and Mr. degree manslaugh- of an on instruction first Appellant. to be dangerous weapon ter means of a is not previously upheld 15 This Court has well as the taken record shows that such demonstrations were based on the evi (Instruction 25, given. instruction was No. presented at dence trial and not theatrical O.R.404). State, 777 demonstrations. Brown v. P.2d (Okl.Cr.1989) 1355, a (prosecutor used Further, Appellant argues during argument police closing officer to il by failing jury lesser instruct position lustrate the decedent seated offenses, included the trial court failed to ain chair when shot in the neck and back provide jury option convicting with the appellant.) See Woodruff non-capital required by him of a offense as denied, (Okl.Cr.), cert. Arizona, 624, 111 Schad v. 501 U.S. S.Ct. U.S. 114 S.Ct. 126 L.Ed.2d 313 (1991) Beck v. 115 L.Ed.2d 555 (1993) (police use of the officer demonstrated Alabama, 100 S.Ct. U.S. neck Assistant garrotte on the of an District (1980). Neither Beck nor Schad L.Ed.2d 392

Attorney). given require jury capital case be third, Here, non-capital evi option was rele- where the demonstration op illustrating absolutely support that which occurred dence does not vant events jury in Nading Regardless, Mr. tion. this case in the ditch as watched from third, Testimony given option first de concerning non-capital van. these events was gree manslaughter, as the alternative contradictory claimed he acted as well with stabbing imprisonment of life and life in self-defense and denied the vic- sentences Therefore, pre parole. brief and not so out tim. The demonstration was non-capital option. probative considering a outweigh value vented from prejudicial as to is de Accordingly, assignment of error helping understand the State’s theory nied. of the commission of offense and in stantially the as that admitted Con same ISSUES

SENTENCING STAGE 918-19, Trial at n. 6. counsel over. P.2d A. object did to the present case error, assignment of In his seventh impact of the victim evidence introduction impact evi- challenges the victim generally contemporaneous but raise ob did arguments, of his several In the first dence. impact jections statements ar to the victim im- of the victim Appellant asserts admission statutory they beyond scope guing went the plain in violation of the pact evidence was objections impact The of evidence. victim the Amendments of Eighth and Fourteenth were overruled. and outside the United States Constitution Conover, the victim im- found O.S.1991, 984. scope of pact weighed too far evidence the scales previously argument This has been prosecution. of the Id. We found such favor v. 933 P.2d rejected in Ledbetter as victim “butchered like statements (Okl.Cr.1997) Cargle and 889-90 animal”, men “butchered an and two Cargle sets out P.2d impact have no in a victim state- place him” Supreme States Court the basis United Id. at ment. 920. Eighth Amendment is utilized find has pro- Assuming like this are not statements and by impact evidence not violated victim hearsay, the rules of such hibited under po- has Amendment that the Fourteenth inflammatory descriptions statements are if implicated appropriate to be restric- tential response designed to invoke emotional impact placed are not on victim evi- tions jury. do not fall Such comments dence. statutory provision permitting under im Court has held victim This on the manner statements long as it is pact evidence admissible as type These of perpetrated. crime was ‘financial, emotional, psy to the “restricted charged per- emotionally statements are effects,’ impact, or chological, physical and prejudicial opinions more sonal which are survivors; the victim’s crime itself on probative. than of the personal some characteristics well as omitted). (footnote further stated: Id. We Ledbetter, quot at 889-90 victim.” ing Cargle, 909 P.2d 828. [cjomments baby, his the victim as about showing up parents’ hopes how his growing limited to and his use should be [I]ts affecting might provide insight way future in into the the victim’s death no survivors, why prospective contemporaneous and and circum- the victim’s affect death; ....; surrounding they his nor have killed do should not been stances victim surrounding impact evidence should restricted how the circumstances victim show financially, emotionally, unique which de- .death have to those characteristics died, physically impacted a the con- psychologically, fine the who has individual family. temporaneous prospective circum- member the victim’s immediate death, surrounding how stances However, we at 921. also found several Id. financially, emo- those circumstances have properly including statements were admitted tionally, physically im- psychologically, and taking reference to care Mrs. Hardcastle’s immedi- pacted on members of the victim’s grandsons, nursing them victim’s twin family. Id. ate answering nightmares their through opinion a member of the victim’s This questions about their father. family regarding a recommended immediate emotional, found relevant show been held sentence admissible. physical impact of the vic- psychological, and Hain improperly death. Id. The effect of tim’s (Okl.Cr.1996).However, opinion will be viewed such light evidence was not addressed admitted degree of heightened this Court with need to the case for resentenc- remand Willingham, 947 P.2d at scrutiny. right appellant’s ing due to the denial Id. The same statements specific impact to confrontation. Turning to the victim present case, improper in are it found Conover is sub- evidence introduced improperly this case. The effect of this ad- court admissibility to determine the of the O.S.1991, will mitted evidence be addressed evidence as it relates to 12 2403. Mandatory Sentence Review. 909 P.2d at sought 828. The evidence to be introduced should be limited to the evidence ¶ Appellant complains prosecutor’s listed in the notice filed before impact replete the victim evidence was with trial, and, although required, not the trial hearsay things witnesses testified to may ques- court wish to consider whether a they personal knowledge. of which no had may preferable tion-and-answer format abe Specifically, Appellant directs us to refer controlling way method of relevant victim criminal ences record and that he impact presented jury. evidence ato Id. is. planned the homicide. The Evidence Code prohibition hearsay applies stage in second case, present approximately 30 In the proceedings capital and unless a cases trial, year one before State filed Notice hearsay statement within falls one of the Impact listing of Victim Statement the three rule, recognized exceptions hearsay to the it witnesses who testified as well as seven other stage proceed is not admissible in second testify, witnesses who did not with brief sum Ledbetter, ings. 933 P.2d at 895. Con- testimony maries of their included. The over, said that Mrs. Hardcastle’s refer provided Appellant State also with the writ appellant’s prior ence to conviction was error prepared by ten statements the three wit if personal knowledge prior she had no testify. nesses who Although did the record conviction and because such statement did does not reflect when these written state emotional, financial, psychologi show the defense, provided ments were to the no ob cal, physical effects of the victim’s death jection was raised on the basis of lack of nor is it relevant to the circumstances sur provided notice. sufficient no rounding the victim’s death. 933 P.2d at 922. impact tice of the victim evidence. See Led case, We find the same comment error in this better, 933 P.2d at 894. the effect of which will be discussed hearing 31 An in-camera on the admis- Mandatory Sentence Review. sibility of the evidence was not held but when ¶27 Appellant argues further impact the victim evidence was met with impact “super- victim evidence as functions trial, objection defense at all of the evidence aggravating claim evidence.” This was re by offered the State was admitted. The jected Cargle wherein we found evidence failure the trial court to hold the in- .of supporting aggravating an circumstance and However, hearing camera was error. it is a impact victim evidence are different kinds of subject analy- trial error to a harmless error addressing separate purposes. evidence two sis. Bartell v. 98-99 n fn. has not persuaded tous reconsider the issue. purpose 32 The of the in-camera hear- ¶28 Appellant also asserts the ing opportunity judge is to allow the trial impact victim evidence was inadmissible due admissibility to rule on the of the victim to the trial failure to conduct an court’s in- impact prior presentation evidence to its hearing required camera the evidence as objections jury. The in this case defense by Cargle, adequate his failure to receive gave opportunity the trial court that same evidence, impro notice of the the witnesses’ and all of the evidence offered the State vising on the stand and failure to adhere to Therefore, was admitted. the failure to statements, giving their written and the ruling prior make that same to trial an in- testimony in their a narrative instead of a However, hearing camera is error. harmless question and answer format. proce- when the trial court fails to follow the Cargle, hearing opens up 29 In that the an it this Court held dures for in-camera potential State should file a Notice of Intent to Pro- error if inadmissi- reversible Evidence, Impact detailing prejudice pre- duce Victim ble evidence which creates introduced; sought jury. Fortunately to be in- sented to the we do not hearing problem camera should be the trial have held here. listing give an instruction court’s failure three witnesses who error in vio- evidence was specific mitigating form. We find in a narrative

testified did so Amend- Eighth and Fourteenth lation of the Cargle provided that either no error argues the absence of such Appellant ments. or a narrative answer format question and full jury’s con- prevented the an instruction The 909 P.2d at 828. permissible. is format mitigating circum- specific sideration of present method to option using of either Appellant’s submission stances offered. fact that a makes the impact victim requested instruc- of a the trial court written her written testifying added to his or witness subject preserved the issue Here, on the tion Ed Hard- inconsequential. statement father, appellate review. for castle, on the stand victim’s stated testimony concerning that he had heard has rec- Appellant asserts Court and her Appellant’s attempt to kill a witness type of- of the ognized that an instruction grandchil if his and he wondered children appropriate and should be him is fered at the time their father dren had been with authority requested, citing as given when they have been homicide if would Jury Uniform “Notes on to Oklahoma Use” Appel that also commented butchered. He (2nd) (OUJI-Cr) 4-79. Instructions-Criminal what he had no remorse for lant showed However, that the recognizes this Court done, lawyer for a reduced would ask that his go ef- did not into edition OUJI-Cr second sentence, mercy, that his son was but (4) after approximately four months fect until mercy. The fact that his com shown no applied trial and we have not included in his written state ments were not retroactively. O.S.Supp.1996 577.2. them It improper. them is does not make ment authority sup- in no other Appellant offers which determine the content of his comments give argument the failure port of his that admissibility. their Rather, he such an instruction error. Looking them- Lynaugh, to the statements 492 U.S. Penry relies (1989) selves, man that to “look at a the comment L.Ed.2d 256 S.Ct. may he’s done” can be no remorse for what that a court shows which find other cases proper characterization preclude described as which or inhibit give instructions Ledbetter, 933 opinion mitigating the defendant. evidence. jury’s of evaluation of However, of,the the rest state- distinguishable present case is 38 The ‘financial, on the ments not comments were faced with Penry in that we are not from emotional, physical ef- psychological, and jury’s improperly limit the instructions fects,’ crime itself on the impact, of the or with the certain evidence but of consideration survivors, emotionally charged but victim’s specifically direct- of an instruction absence prejudi- more which were personal opinions certain evidence. ing their consideration of probative. Their admission was cial than instruction type of that The absence error, will be discussed the effect which given which were light the instructions Mandatory Review. Sentence deny Appel- stage did not during the second challenges the Finally, Appellant The rec- sentencing proceeding. lant a fair impact evidence jury on victim instruction jury that miti- was instructed ord shows limit and channel arguing it failed to which, in were those gating circumstances impact evaluating victim jury’s discretion mercy, may be considered fairness and given in this case instruction evidence. The reducing degree of the extenuating or Cargle, P.2d at approved in that culpability or blame and moral defendant’s us to persuaded has not 828-29. mitigating of what are the determination this instruc- endorsement of reconsider our jury to re- solely for the circumstances assignment of error Accordingly, this tion. and circumstances the facts solve under 432). is denied. (Instruction No. O.R. the case. it could that before jury was also instructed

B. first find sentence it must impose the death beyond a rea- circumstance aggravating in his contends aggravating cir- that the doubt and the trial sonable error eighth assignment of of, outweigh mitigating presence must evi- into the courtroom cumstance instructions, to, attorney we find the after notice the district and de dence. these Under counsel, subject fense error considering from harmless er prevented was not ror review. Such a violation can be harmless evidence nor is there reasonable likelihood any prejudice absence to the defen failed to consider the evidence of- Therefore, dant. Fisher 736 P.2d mitigation. fered the failure (Okl.Cr.1987); Givens v. 705 P.2d give specifically listing the mit- an instruction (Okl.Cr.1985); 1139, 1142 Wilson v. igating evidence does not warrant reversal or 1325, 1327 modification of sentence. Here, jury the life asked “Can

C. parole by appeal pleas without be reduced or (sic) error, anybody assignment 39 In his ninth future” and “Has ever be Appellant sentencing in released with the of life contends the trial court erred without parole.” response The court’s to both failing give explaining ques to an instruction the tions was “I am not imprisonment difference life and life allowed to answer this between requested by jury question.” Appellant parole judge without as the in asserts the jury should have instructed the during Ap- two out deliberations. the sen notes sent possibility parole tence of life without pellant that under 22 asserts O.S.1991 exactly says what duty jury means it and that the provide the court had an affirmative to further, presume any guidance jury given is to sentence to to the and the failure according would prejudicial in be carried out to to do so resulted error. plain meaning the of that sentence. He ar provides that when the Section 894 State, gues that under v. Johnson 928 P.2d jury question has a after it has started delib- (Okl.Cr.1996) 309, 319 the trial courts should erations, they open be into must conducted fully permitted be to what the define sen response pres- court to receive their the allay juror tence means to confusion or mis ence of the defendant and all con- counsel understanding. cerned. The record does not reflect that the ¶44 Johnson, jury the asked “[w]e jury brought into the courtroom to re- parole firm— need to know! Is life without response. ceive the court’s paroled?” Does it mean he can never be Initially, Appellant asks responded inappropriate “It trial court is for presume prejudice this Court because the you question to consider the asked.” Id. at upon record is silent as to the court’s actions found the court’s re 319. This Court trial receiving questions. Only the the written law, sponse error as it was a misstatement of jury’s questions versions of the and the (Okl. State, citing Mayes v. 887 P.2d 1288 responses court’s have been included in' the Cr.1994), clear, jury that the law is the must record. There is no indication that life, consider the distinctions between life objected responding to the court’s method of parole it reaches the without- and death as questions. to the It is well established that However, sentencing decision. this Court it is burden to ensure sufficient require error did not reversal as found such provided record is to this Court to determine prior case law made it clear that: State, the raised. Hill v. 745 P.2d issues jurisdiction jury ... not to [i]n not This Court does as workings parole be told of the inner from a silent record. Id. Fur sume error system, compare when it must two even ther, objection absent an as to the court’s possibility of life sentences: one with the failure to follow section the issue is not possibility parole, and one without the preserved appellate properly for review. [McGregor parole. In none of these cases (Okl.Cr. State, Brown v. (Okl.Cr.1994); P.2d 1366 v. 1989). (Okl.Cr. 887 P.2d 323 McCracken ¶42 1994) Therefore, only Mayes P.2d 1288 reviewing (Okl.Cr.1994) error, judge give a did the trial plain ] this Court has found violation O.S.1991, 894, jury’s question. failing jury responsive answer to the of 22 to call the required the trial court is plain error as

Likewise, judge’s this case answer parole process. Id. explain The Ultimate effect of the Oklahoma non-responsive. n responses was to force all of these ¶48 jurors’ response The court’s language of the plain jurors back to non-responsive questions this case was standpoint of what From instructions. jury on the to fall back as such forced following jurors must do plain meaning of the instructions —instruc- meaningful no response, we find judge’s merely punish- three set out the tions which ap- flowing from the behavioral difference death, parole and options of life without ment McCracken, McGre- proved responses (O.R.437). the tri- imprisonment. While life could be summa- Mayes which gor, and specifically referred the could have al court as, going to answer that “I am not rized instructions, jury it was not back to those response in the case ,question”, and punishment required to further define as, be summarized us which could before process. We options explain parole find the trial therefore “Don’t ask.” We or misled find the was not confused case to harm- response in this judge’s . response Appellant has failed the court’s doubt. beyond a reasonable less returned its to show that when at 1320. Id. that it was confused punishment on verdict ¶ Johnson, upon in Mayes, In relied 45 any punish- three or misunderstood jury a note from deliberations the sent out prejudice options.- Finding no occurred ment given parole was was asking, “if life without the error was harmless and this Appellant, to pris- possibility of release from there ever a assignment of error is denied. judge trial The on”. 887 P.2d at 1316. were self- responded saying the instructions D. in found no error explanatory. This Court ¶ assignment of er In his tenth 49 re- response stating there is no the court’s ror, aggravating cir Appellant challenges the explain judge to the quirement for a trial ‘ Initially, he found this case.3 cumstances jury. at process to a Id. parole Oklahoma sup to argues the evidence was insufficient , 1318. heinous, aggravator “especially port the ¶ McCracken, jury sent out In 46 cruel”, trial court failed atrocious or that the Parole mean asking, “Does Life without note jury aggrava on this properly to instruct the any under exactly would never that? He tor, aggravator unconstitu and that is circumstances, get prison?” out Further, he tionally overbroad. vague and you again to responded, “I will instruct court “continuing threat” aggravator of argues the The law Okla- your at instructions. look by in an over- this Court applied has been convicted of Murder provides person homa manner, unconstitutionally vague broad and death, by punishable Degree is the First aggravator supporting this that the evidence may retire parole or life. You by life without insufficient, prop not that was was P.2d at 334. 887 and deliberate further.” it erly on the manner which instructed self-explan- the instructions This Court found unadjudicat- the evidence of should evaluate err court did not atory and that the trial was improper that other evidence ed acts and setting forth refusing a defense instruction penalty phase. in the wrongly admitted VI, state constitu- 10 of the Article Section governor from prohibits tion sufficiency When the who receives granting parole to a person is aggravating circumstance evidence of an parole. Id. of life without sentence appeal, proper test chállenged on any competent evidence whether there was not trial court did McGregor, 47 In aggra charge that the support the State’s to jury’s question “about what respond to the making this vating circumstance existed. if he sen- happen McGregor were would to determination, view the should this Court parole.” 885 P.2d to life without tenced light favorable to most no evidence Relying Mayes this Court found 1383. felony involving or threat of the use challenge aggrava- victed of a the third does returned, previously violence. been con- that he had tor 259; to talk Bryson, P.2d at Romano v. was able with the first officer who State. (Okl.Cr.1993), State, responded identify to Appel- cert. the scene and Therefore, affd; lant as the assailant. unlike granted and case Romano v. Okla homa, by Appellant, 129 cases cited there no 512 U.S. S.Ct. was need (1994). supporting speculate Evidence for the as to whether the L.Ed.2d infliction, heinous, finding especially victim remained conscious after the that a murder requires proof that of the initial or or cruel wounds whether he suffered atrocious anguish. mental preceded death was torture serious State, physical Neill v. abuse. Further, evidence this case denied, (Okl.Cr.1994), cert. 516 U.S. not, immediately, showed the victim did die (1996). 791, 133 L.Ed.2d 116 S.Ct. languish multiple but was left to from knife Leaving linger a victim lan- Appellant challenges the torture as wounds. guish after he was is sufficient pect, physical, aggra- both mental and of this stabbed McCracken, support aggravator. this argues that as the wounds were See vator. He Therefore, inflicted, 887 P.2d at 332. we find suffi- rapidly although some wounds cient the victim’s mental torture superficial, were fatal and others were physical suffering support and conscious police standing as the victim was still when aggravator. provoked by attack arrived and as the victim, indistinguishable this case is from argues next State, (Okl.Cr.1988); Nguyen v. 769 P.2d 167 aggravator trial court’s instructions on this (Okl.Cr.1995); Cheney P.2d 74 jury’s did not limit the consideration to con (Okl.Cr.1988) Brown v. 753 P.2d 908 objective Appel stitutional considerations. (Okl.Cr. Hayes 845 P.2d 890 objection at trial lant’s to the instruction on 1992). in which this found there Cases Court aggravator preserved the issue for physi no evidence of torture or serious was jury appellate review. The was instructed support “especially cal sufficient to abuse heinous, phrase “especially atrocious or heinous, aggravator. atrocious or cruel” cruel” is directed to those crimes where the State, 364, Berget 52 In v. 824 P.2d preceded by 373 victim death of the is torture of (Okl.Cr.1991), denied, 841, cert. 506 U.S. 113 the victim or serious abuse rather than ser (1992) 124, physical 121 L.Ed.2d 79 we stated abuse as out in the uni S.Ct. ious set instruction, added). may jury (emphasis that torture include the infliction of form (1st ed.). great physical anguish Appellant con either or extreme See OUJI-Cr. 436 Neill, cruelty. “physical at that without the modifier mental See also 896 P.2d tends creating jury interpreted could have 555. The “torture extreme mental abuse” unconstitutionally vague in aggravator distress must be the result of intentional acts an produce the defendant. The torture must and manner. He also asserts overbroad anguish in addition to that which of such misinstruction was critical as the ele mental necessity underlying involved in this accompanies killing. ment of torture was not Analysis must focus on the acts of the defen case. dant toward the victim and the level of ten the uniform in- 56 This deviation from - Cheney, created.” 909 at The sion P.2d State, error. v. 928 struction is Johnson is in mental torture element confined eases (Okl.Cr.1996). 309, However, P.2d 318 signifi the victim is terrorized for a persuaded the error lessened the are not period cant of time before death. Id. at 81. apply proof which the had to standard upon by aggravator that it misled the Appel- 53 In the cases relied to find this

lant, in interpreting aggravator this Court found the evidence did not into Id.; manner. see also Ri- prior show that the victims suffered to their unconstitutional State, 268, case, P.2d 278 present deaths. In the the evidence chie v. 908 controls the stan- that the victim was as he The term “serious abuse” showed conscious given to the proof, a knife and that term was was attacked with and broken beer dard Johnson, Further, away jury. P.2d at 318. desperately sought and to run 928 bottle trial, presented at torture from attacker and defend himself. He under the evidence 1248 involved, tacks, ordinarily it understood he asks this Court to revisit issue.

as is Although very the jury Appellant presents thorough indication under- and there is no any argument, “serious in phrase stood the abuse” he has failed to convince us physical finding validity aggravator as “serious abuse.” sense other than our of the of this Therefore, State, 363, the error harmless as it we find set forth 900 in Valdez v. P.2d (Okl.Cr.1995) proof did the standard and thus Bryson, not lessen 876 at 381 impact sentencing could no on the have had 259 should As we be reconsidered. noted P.2d at Simpson, 1071, 876 698-99. decision. v. 910 P.2d 1083 n. 7 Roberts (Okl.Cr.1996) this Court is aware that one poses question 57 federal district has concluded court the use physical abuse” whether the term “serious unadjudicated crimes can result a con- sufficiently aggravator limit this serves to stitutional violation. See Williamson v. question appeal. That was an and on (E.D.Okla.1995), Reynolds, F.Supp. 1529 904 in the affirmative in v. swered Stouffer grounds, overturned on other Williamson v. (Okl.Cr.1987), denied, 562, cert. Cir.1997) Ward, (10th (the 110 F.3d 1508 108 S.Ct. L.Ed.2d 779 U.S. specifically finding 10th Circuit “consid- (1988). Relying on Robinson v. unadjudicated eration of crimes (Okl.Cr.1995) Appellant argues this P.2d 389 imposing death sentence does not vio- effectively negated narrowing Court has petitioner’s process rights,” quot- late due finding approved definition Stouffer Oklahoma, ing Hatch v. F.3d only momentary following consciousness (10th Cir.1995)). Further, the United States gun great shot sufficient show wound is Supreme generally approved Court has physical cruelty. anguish or extreme mental constitutionality “continuing threat” Appellant’s argument not well as the is taken Texas, aggravator. See Jurek U.S. showed the victim was evidence Robinson 2950, 2956, 96 S.Ct. 49 L.Ed.2d running as he shot twice in the back (1976). Tuilaepa California, over, See also away. The victim fell turned ask 2630, 2637, 129 U.S. ing on?”. S.Ct. L.Ed.2d going appellant “what . (1994). victim, up shot him walked to the twice calmly away, leaving wounded walked linger languish. additionally

victim to The victim argues enough long by unadjudicated remained conscious to tell that evidence of offenses was standers to call ambulance. This Court wrongly support admitted in of the “continu found showed the in the evidence victim was ing aggravator. Appellant threat” asserts pain period a of conscious for time and that compounded by an the error was instruction bring such was sufficient to evidence properly did instruct the on “especially crime within the definition of hei the use of evidence. this nous, cruel” as atrocious or narrowed ¶ previously upheld 61 This Court has Stouffer. unadjudicated support of to use offenses ¶58 Appellant’s argument, further Hain, “continuing aggravator. threat” aggravator unconstitutionally that is 1309, 1141; P.2d at 867 P.2d Paxton v. rejected vague and overbroad was in Wil denied, 886, (Okl.Cr.1993), 513 U.S. cert. (Okl.Cr.1991), liamson v. 812 P.2d (1994). In 115 S.Ct. 130 L.Ed.2d denied, 503 U.S. rt. S.Ct. ce 11, challenged appeal, struction No. was (1992), L.Ed.2d 308 and we find no therefore, objection not met with an we re differently Accordingly, reason now. to hold only plain view for error. heinous, “especially or cruel atrocious ¶ following given 62 The instruction aggravator” facially applied and as in this jury: to constitutionally case valid. is unadjudi- There has evidence of other next been Appellant challenges “continuing cated acts violent conduct offered

aggravating circumstance of recognizing support aggravating of the circum- threat”. has State While Court rejected would commit previously such constitutional at- stance that the defendant upon that occasions and his reaction constitute ous would acts violence society. hearing in the against continuing threat . .involvement happen homicide was “it was sooner bound criminal legal requirement that There is no argues pre- that the lack of or later.” He you as a charges .must be filed before testimony violated his trial notice for this allegations of criminal con- can consider Eighth right to a Amendment reliable sen- respect to this by the defendant with duct tencing proceeding. circumstance, necessary it there be nor is crimi- conviction for such unrelated a final O.S.1991, 701.10, 66 Title defendant com- nal conduct. Whether the “[o]nly provides aggra such evidence alleged crimes is a matter to mitted these vation as the state has made known to the upon by you jury, based be determined prior his trial shall admissi defendant you open presented to the evidence stage proceedings. during ble” second We (O.R.436). court. 701.10, along have held that section with al- argues this instruction II, 20, requires art. the State Okla. Const. of unad- jury to use the evidence lowed the provide capital defendant with “a sum making even judicated offenses without mary support of the evidence intended to had committed the offense finding that he circumstances, alleged aggravating a list doubt, beyond thus unconstitu- a reasonable might call” and not a of witnesses State proof tionally lessening the State’s burden description anticipated detailed second aggravating circum- respect to this with stage evidence. Walker v. 887 P.2d stance. (Okl.Cr.1994); 316-17 see also Wilson uni State, No. 11 is not a 64 Instruction (OUJI-Cr) uni instruction. fact the form pre-trial require of this notice purpose forth an instruc form instructions do not set pres time to ment is “to allow defendant unadjudicated defining explaining or tion explanation alleged a defense or an for ent authority cited no re Walker, acts. criminal misconduct.” at 316-17. mandating quiring such an instruction terms, purpose general its is Stated more given instruction. The instruction such an of evidence rele apprise “to the defendant the law as a an accurate statement of sentencing which will be introduced vant to necessary prior is not final conviction hearing.” sentencing for the first time “con activity to be relevant to the criminal notice, “[Fjailure object to lack o'f Id. Paxton, aggravator. See tinuing threat” pre-trial hearing or at the time either at Further, the existence P.2d at offered, challenged will result general must be aggravating circumstance statutory right.” Id. in waiver of this doubt, not the proved beyond a reasonable challenged comment 67 Neither up pieces of evidence which make individual objection to insufficient met with an as was Contrary Appellant’s ar aggravator. to the object to on the Appellant’s failure notice. does not allow the gument, the instruction notice, he raises now on grounds that lack of unadjudicated for jury of acts to use evidence of plain error review appeal, waives all but (Appel purpose jury the chose.” “whatever the issue. 75) brief, specifically the pg. It directs lant’s to be considered jury that such evidence was ¶ was on the Anderson listed 68 Chief cir pertained aggravating to the only as it Stage Witnesses initial of Second State’s List find “continuing threat”. We cumstance of (O.R.78). testimony summary was A of his plain er does not constitute the instruction Summary of Witness provided the State’s ror. year prior Testimony approximately one filed (O.R.84). summary ¶ stated that trial. complains about to Appellant further 65 police testimony consistent with would be prove the “con- the admitted to other evidence present Appellant and Initially, reports provided to he tinuing aggravator. threat” again listed on Anderson was at the scene. testimony from Miami Po- complains about Stage Witnesses List of an Amended Second Gary that he had arrest- Anderson lice Chief Testimony filed Summary of Witness numer- and Appellant on or had contact with ed 1250 297). error, 22,1996. (O.R.290, assignment upon Based 72 In his eleventh of

March Appellant challenges stage jury the second record, Appellant had sufficient notice of this acknowledges testimony. He that several instructions. Anderson’s reject- previously his arguments of have been argues the further second Appellant 69 Court, again them to presents ed this but opinion, challenged personal was a comment urge preserve appeals them for future and to Anderson’s com- not relevant to the issues. arguments. to the Court reconsider happen sooner or ment that bound to “it was which in spontaneous First, was remark later” a 73 he asserts the instruc prejudice Appel-, light jury did not of evidence tions inform find failed to that its lant. ings regarding mitigating did circumstances argument not unanimous. This have complains that Appellant next 70 previously rejected in Bryson, been which occurred while public incident drunk 262; P.2d Pickens v. juvenile used improperly he was a was dur (Okl.Cr.1993), cert. denied U.S. stage proceedings as it not ing second could (1994). 942, 127 L.Ed.2d 232 We S.Ct. punishment under have been used to enhance differently now. persuaded are not to hold O.S.1991, pun The enhancement of 51. ¶74 Next, he asserts the instruc non-capital ishment case and sen mitigation permitted of tions on the issue capital entirely tencing stage of a trial serve jury altogether, ignore mitigating evidence separate purposes. Carter v. seriously miti diminished the effect of (Okl.Cr.1994), denied, cert. presented in gating evidence this case. L.Ed.2d U.S. 115 S.Ct. jury No. 7 was instructed Instruction Paxton, Here, (1995); 1322. 867 P.2d at mitigating that circumstances are those unadjudicated prior offense extenuating or “may be considered” as specifically support ag admitted to was .the degree Appellant reducing the of blame. “continuing gravating circumstance using permissive lan contends that such punishment threat.” The enhancement of mandatory guage language instead of the jury not an in this case. The was issue jury to “must be considered” allowed the informed, argument thoroughly through disregard mitigating evidence4. This same instructions, as to consideration to be given in Pickens we instruction wherein given unadjudicated Therefore offenses. rejected argument that instruction find fin the of this no error admission ignore mitigating evi allowed evidence, dence. P.2d. at ¶71 Finally, Appellant finds error argues by jailer testimony that admission failing court instruct the erred Appellant enjoyed watching violent movies life it could consider sentence life or got Appel excited while them. watching they parole though even had found without objection testimony preserved lant’s to the aggravating of one or more existence appellate the issue review. We find this argument This has consis circumstances. testimony in proving relevant rejected tently Court has held been as this propensity for violence the existence of a required court to inform the trial probability that would commit they may disregard aggra jury the the criminal acts of violence that would constitute impose a life sen vating circumstances and society. upon to Based continuing a threat Valdez, 385; Bryson, 900 876 tence. P.2d at Appellant find not foregoing, the we P.2d at 262. sentencing proceeding by denied reliable in Appellant the improper Accord next asserts the admission of evidence. jury the the ingly, assignment structions on manner of error denied. mitigat- entirety: what Mitigat- determination of are 4. No. 7 reads its Instruction blame. which, ing you jurors ing resolve are circumstances is for to those fairness circumstances mercy, and case. may extenuating facts circumstances of this and be considered as or under the (O.R.432). reducing degree culpability of moral or (18) eighteen weigh aggravating circumstances was also directs us to slides illus- was to improper trating forth an burden to the victim. erroneous and set wounds proof. complains He that Instruction No. photographs These are the same and slides (1st ed.) 8,.which is verbatim OUJI-Cr Conover, found admissible in 933 P.2d at improperly permitted weigh to Appellant’s arguments 912-913. have not totality aggravating of the circumstances persuaded change us to that view. against mitigating each individual circum- Appellant further asserts ad weighing aggregate rather than stance photographs mission of and slides denied mitigating against separate ag- each factors sentencing proceeding. him a fair theAs gravating required by 21 circumstance as properly during exhibits were admitted O.S.1991, Appellant’s objection In- 701.11. trial, they stage first and as were relevant preserved struction No. 8 has the issue for establishing aggravating circumstance appellate review. heinous, cruel”, “especially atrocious they deny Appellant fair find did sen Specific standards for bal tencing proceeding. Accordingly, this as mitigating ancing aggravating and circum signment of error is denied. constitutionally required. are not stances 862, Stephens, 462 Zant v. U.S. 103 S.Ct. INEFFECTIVE ASSISTANCE (1983); 77 L.Ed.2d 235 see also Mitch (Okl.Cr. OF COUNSEL CLAIM

ell v. 1994). aggravators outweigh miti Whether assignment 80 In his twelfth gating jury’s left circumstances is to the dis error, Appellant contends he denied 993, 1004 cretion. 731 P.2d Johnson the effective assistance of counsel denied, (Okl.Cr.1987), cert. 484 U.S. failure the victim counsel’s to cross-examine (1987). 35, 98 L.Ed.2d 167 Instruction S.Ct. impact aspects on certain witnesses finding No. informed the that a character, specifically victim’s that he was beyond aggravating circumstances a reason drug Appellant convicted dealer. also claims by itself able doubt is not sufficient to assess by failing counsel was ineffective to cross- Rather, penalty. aggravating the death during examine into that same area the first clearly outweigh any circumstances must stage testimony Pendley of Detective and mitigating circumstances before the death bring jury. otherwise this evidence before the penalty may imposed. This Court presumed 81 Trial counsel is constitutional, held similar re instructions competent provide guiding hand that jecting argument by Appel now made needs, therefore the burden the accused lant, Mitchell, 1206; P.2d at Revilla v. both a is on the accused to demonstrate (Okl.Cr.1994), 1143, 1153 cert. performance resulting preju deficient denied, 115 S.Ct. U.S. Washington, 466 U.S. dice. Strickland (1995). Accordingly, L.Ed.2d 661 this as 2052, 2064, 80 L.Ed.2d 674 104 S.Ct. signment denied. of error is (1984). two-part sets forth the Strickland applied must be to determine test which PREJUDICIAL PHOTOGRAPHS CLAIM a defendant has been denied effec whether First, ¶78 of counsel. the defen assignment fifth of er tive assistance ror, performance challenges admissibility must show that counsel’s of dant deficient, second, he must show the photographs autopsy of the victim and slides. was prejudiced the de argues performance He that since he did not contest deficient death, both photos the defendant makes cause or manner of fense. Unless little, the convic any, probative Spe showings, “it cannot be said that slides had if value. tion ... resulted from breakdown cifically, our attention directs adversary process that renders the result No. 5 and These are color State’s Exhibits 687, x at 2064. Id. at 104 S.Ct. photographs, showing 11 14 inches size unreliable.” demonstrate that counsel’s body close-up Appellant of the victim and a must a full view pre- head, under respectively. Appellant representation was unreasonable of the victim’s 1252 Further, crime, any including drug crime. norms that the chal-

vailing professional and self-defense, that lenged Appellant’s not be considered sound defense was of action could 688-89, any at strategy. denying Id. at 104 S.Ct. use or involve specifically trial drugs. 2065-66. He testified that while co- ment with visiting the Davises defendant Conover was of ineffective 82 a claim When just happened that the vic he to remember adjudicated on the ness of counsel can him tim next door and went over talk to lived prejudice, ground lack of that course of conversation, During their about tattoos. 696, Id. at 104 S.Ct. at should be followed. suddenly and the victim attacked 2070, Concerning the 80 L.Ed.2d at 699. to defend himself. To introduce was forced Court, in prejudice prong, Supreme the victim was involved with evidence Strickland, terpreting has held: only drugs would have weakened prejudice appellant] alleging must [an light the evi of self-defense defense “that counsel’s errors were so serious show showing Appellant looking had been dence trial, a deprive as to the defendant of a fair drugs arriving at the victim’s prior for Strickland, trial result is reliable.” whose Further, pre if home. evidence had been 687, 2064; U.S., S.Ct., at see at 104 drugs drug victim and sented that the had Morrison, v. also Kimmelman U.S. paraphernalia in home at the time of the 365, 374, 2574, 2582, 106 S.Ct. 91 L.Ed.2d murder, only have served to it would (1986) (“The an essence of ineffective- theory strengthen the State’s unprofes assistance claim is that counsel’s provide killed the victim when he failed upset sional errors so the adversarial bal record, drugs. upon counsel’s Based prosecution that ance between defense and any failure to introduce first unfair the ver the trial was rendered stage concerning trial the victim’s involve Whiteside, suspect”); rendered Nix v. dict drugs appears ment to have been with [988], [157], 175, at at 475 U.S. 106 S.Ct. strategic decision. Counsel seemed to focus (1986)]. 998[, Thus, L.Ed.2d 123 purposely the defense on self-defense analysis focusing solely on mere outcome may illegal drugs played have avoid the role determination, without attention to wheth narrowing Focusing case. proceeding er the result of the was funda upon the evidence is a defense based State’s unreliable, mentally unfair or is defective. strategy. This Court has declined valid solely To set aside a conviction or sentence guess strategy appeal. second trial Smith because the outcome would have been dif 904, 908 650 P.2d may grant error ferent but for counsel’s strategy proved is not That the unsuccessful a windfall to the law defendant grounds branding counsel ineffective. him. [United does not entitle See States appel showing incompetence, Absent 658, Cronic, [648], at 104 S.Ct. v.] 466 U.S. counsel is bound the decisions of his lant (1984)]. [2039], at 80 L.Ed.2d 657 2046[ strategy in tactic trial do and mistakes 369-70, Fretwell, Lockhart v. U.S. subsequent attack. provide grounds for 838, 842-43, 122 L.Ed.2d S.Ct. (Okl.Cr. 759 P.2d Davis (1993) (footnote omitted). Although must 1988). totality of the evidence which consider factfinder, our “ultimate focus was before Further, any bring failure to out evi- fair inquiry must be on the fundamental illegal victim’s involvement with dence of the being proceeding ness of the whose result stage drugs during the second Strickland, at challenged.” 104 S.Ct. im- strategic victim decision. While 2069; Fisher v. subject are to the same rules pact witnesses (Okl.Cr.1987), cert. denied 486 U.S. witnesses, the as other of cross-examination (1988). 2833, 100 L.Ed.2d 933 S.Ct. relatives of the vic- to cross-examine decision char- case, negative aspects of the victim’s present apart tim on In the who a matter best left to trial counsel report in the acter is a reference to an “NCIC” from hand. record, witnesses and first nothing in record observes the original there is have a pursuit of such an issue could of The indicate the victim had been convicted (2) factor, Appellant’s plea arbitrary for and devastating effect on the whether evi- jury’s The failure to supports finding ag- a sentence of less than death. dence explicit admissions from the victim gravating obtain as enumerated in 21 circumstances deny Appellant O.S.1991, impact witnesses did not Turning por- 701.12. to the second sentencing proceeding. mandate, reliable tion of this found the (3) aggravating of three circum- existence Appellant also asserts counsel was 1) especially stances: the murder was hei- object improper ineffective his failure 2) nous, cruel; atrocious or the defendant Appellant regarding his cross-examination felony previously convicted of a or felo- silence, post-arrest prior convictions and his involving nies the use or threat of violence to object failure to to “flawed” sen- and his 3) person; proba- and the existence of a heinous, tencing “especially instructions bility the defendant would commit criminal “continuing atrocious or cruel” and threat”. acts of violence that would constitute a con- II, Proposition 86 In we discussed the O.S.1991, society. tinuing threat Appellant’s prosecutor’s inquiry prior into 701.12(4),(1),(7). post-arrest convictions and silence. We inquiry prior no error in the into the previously, found 89 As discussed we have inquiry and harmless error in the aggravator “continuing convictions found the threat” Therefore, heinous, post-arrest “especially into silence. coun- atrocious or cruel” object by sel’s failure to to the two lines of supported Appellant sufficient evidence. Appellant inquiry prejudice sufficiency did not as it did does not contest the of the evi- pertains “prior not affect the fundamental fairness of the dence as it to the violent X, Proposition However, felony” aggravator. trial. Further as discussed re- we have given to the on the aggravator the instructions viewed evidence and find the “especially, aggravating supported by prior circumstances of hei- evidence of convictions nous, “continuing Battery atrocious or cruel” and Aggravated Assault and on a deny Appellant Battery not a reliable threat” did Police Officer and Assault and with a Therefore, sentencing hearing. Dangerous Weapon, counsel’s After Former Convic- Paxton, object Felony. failure to to these instructions did not tion of a 867 P.2d at 1325. Accordingly, prejudice Appellant. we find Turning mitigating evi- to the Appellant was not denied the effective assis- (4) dence, Appellant presented four wit- assignment and this of error tance of counsel friend, nesses, wife, mother, including his is denied. psychologist. and a licensed clinical These testified that mental witnesses ACCUMULATIONOF ERRORS CLAIM capacity impaired by a combination of ¶ 87 In his final and thirteenth as trauma; abuse' and childhood substance that, error, signment Appellant contends family members and friends he reversal, if no individual error merits even will, him if who love and who he is the cumulative effect of such errors warrants death, him maintain a re- put to visit reversal of his conviction or a modifi either him; impair- lationship with the mental We have reviewed cation of his sentence. Appellant from is controllable ment suffers any Appellant’s complaints and found errors drugs deprivation medication and beyond a reasonable doubt. There harmless alcohol; from a benefits fore, Er there can be no cumulative error. pro- controlled environment such as impact relating ror to victim evidence admit aggravating prison. vided in We find stage in the second is addressed ted sufficiently outweigh the circumstances mandatory sentence review below. mitigating presented at trial. MANDATORYSENTENCE REVIEW O.S.1991, the first 91 We now address Pursuant (1)

701.13(C), of death was question: whether the sentence we must determine whether passion, prej the influence of imposed imposed under the sentence of death was under any arbitrary factor. As not- prejudice any or other passion, other udice influence harmless, VII, addition, although 2 In I be- Proposition ed above our discussion type given it error No. 11 in the amount and lieve to have Instruction we found error (OUJI-CR) jury. impact presented to the is not a uniform instruc- victim evidence However, aggrava- discussion of the tion. as our shows, impact

ting the victim circumstances only presented

evidence not the evidence was stage.

during sentencing As discússed

Cargle, any of victim error in the admission may

impact is a trial error “which evidence quantitatively

therefore assessed presented in order

context of other evidence its was to determine whether admission CR 56 1998 OK beyond harmless a reasonable doubt.” 909 SLOAN, George Petitioner, P.2d quoting P.2d at 835 Bartell v. 909 P.2d at 835. case, in- present properly was SPROUSE, Spe Dennis Honorable impact on structed the use victim Judge Sequoyah County, cial 15th notice of received sufficient District, Respondent. Judicial introduced. impact the victim evidence to be Further, given the fact we have deter- 98-0880. No. O mined, impact independently of the victim evidence, Appeals to Court of Criminal of Oklahoma. was sufficient evidence there circumstances, support aggravating three 26, 1998. Oct. safely portion victim can hold that impact improperly admit- evidence which beyond a reasonable doubt

ted was harmless not improperly

as the admitted evidence does reliability of the verdict as

undermine the imposed.5

the sentence Having reviewed the evidence law, of death

applicable we find sentence imposed pas- the influence of under

sion, arbitrary prejudice any other factor.

Accordingly, warranting finding no error re- modification, judgment

versal or and sen- court is AFFIRMED.

tence of

JOHNSON, J., concurs.

CHAPEL, V.P.J., P.J., STRUBHAR,

LANE, J., concur results.

STRUBHAR, Judge, Presiding Vice in Results:

Concur 1 I of stare concur results reason I that a trial

decisis. continue believe provide meaningful should answer

court they

questions when ask about from meaning parole. of life without grounds impact Supplemental improper victim evidence. In Motion for Leave File Authority, case Willingham asserts that the recent is not We have reviewed and find it (Okl.Cr. Willingham in conflict our decision this case. with 1997) compels of his vacation death sentence

Case Details

Case Name: Welch v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Oct 5, 1998

Citation: 968 P.2d 1231

Docket Number: F-96-692

Court Abbreviation: Okla. Crim. App.