*1 hearing. consolidated For the rea- Opinion sons discussed our on Rehear-
ing Justus, in Williams decision
previously hereby rendered herein is re-
affirmed. ordered,
It is adjudged therefore and de-
creed staying that the Order ap- pending
execution of sentence herein
peal dissolved, and the Order of this
Court staying issuance of Mandate is here-
by superseded, of this Court the Clerk
is directed to issue Mandate forthwith. ordered,
It is adjudged further and de- judgment
creed that the and sentence here- appealed from be carried out Appellant, Wayne
electrocution of Michael
Green, by the Peni- Warden
tentiary McAlester, Oklahoma, at on Mon-
day, February 1976. Joe
Bobby and Allen Clayburn WILLIAMS, Justus, Appellants,
The STATE of Oklahoma, Appellee.
Nos. F-74-648, F-74-650. Appeals
Court of Criminal of Oklahoma.
Sept. 17, 1975.
Rehearing Denied Nov. 1975.
5(J1 *11 Phillip Horning, City, F. Oklahoma American Civil Liberties Union of Okla- homa, amicus curiae. Greenberg, Nabrit, III, M. Jack James
Peggy Davis, Kendall, C. David Evan New York City, Anthony Amsterdam, G. Stan- ford, Cal., Legal Defense & Educational Fund, Inc., amicus curiae Larry Derryberry, Atty. Gen., Bill Bruce, Atty. Gen., Asst. appellee. for OPINION BUSSEY, Judge: Appellants, Bobby Williams and Al Joe Clayburn Justus, len hereinafter referred defendants, to as charged, were tried and Court, convicted in the District Oklahoma County, CRF-73-3181, Case No. for the Murder, offense Degree of First in viola 1974, O.S.Supp. 701.1, tion § †[2. provisions accordance with O.S. 701.3, Supp. 1974, the defendants were § death, thereafter sentenced to suffer timely from each judgment and sentence appeal perfected was in re spective 650, Case Nos. F-74-648 and F-74 - which been for review. have consolidated trial, Knight, At the Adam a Detective Depart- City with the Police Oklahoma ment, m. on testified that at about 4:30 a dispatched to an October he was night all store known convenience Pennsylvania Tom’s 1S01 Market at South County, City, in Oklahoma Oklahoma the dead He there observed Oklahoma. prone in a body lying of a white female counter, position and also noted behind the open empty register that the cash was money. learned name of He later Kennedy, Cherry Lee the deceased admitted Exhibit No. was State’s picture of the as a being after identified by the witness. first observed deceased as recalled, testified witness later When present day Dr. when he was same Leatherman, A. R. L. Weldon H. Examiner’s Office Medical Keen City, Bobby for Williams. Oklahoma body and performed autopsy Joe released to Defender, projectile which Anderson, Okla- removed a Public Don Connelly. recalled later When County, Clayburn Allen Officer homa for Justus. time, at he defendant further testified that he sold to Williams $30.00 second he swap shop fur- participated in the arrest of defendant on 1973. He October pur- 2, 1973, previously that he had ther testified Williams November State’s Dempsey, gun evidence from Elmer Exhibit No. 2A was admitted into chased one registered gun with the being as a which and had not identified statement regard- Department. gave City that defendant and executed Police Oklahoma ing alleged being advised offense after Ex- Embery William identified State’s *12 5, rights of his on 1973. The November gun found the eve- hibit No. as the he on pertinent part that was most statement 30, 1973,in block ning of October the 2200 read to the as follows: gun then Brookline. He took South in
“Question: you Would relate to me nearby, contacted the and his father home your your part in the words to own police gun. and took the who came above homicide? Hahn, supervisor for Kenneth a James sitting “Answer: and I was Allan Justus Market, Inc., Octo- testified that on Tom’s by the Fina Service Station S.W. op- 30, 1973, Kennedy had Cherry Lee ber in High. going go 59th I was to the store in the 1500block South erated masked there there and rob him. But pre- Pennsylvania p. 11:00 m. the since was too much traffic. So we decided at at the store evening. vious He arrived way back not to do were on our it. We day her that and observed about 5:30 a. m. that home and I remembered a store re- being body the counter before behind our could be hit. While we were on moved, large of blood on and a amount way Allan said talking we was about it. register cash also noticed the floor. He killing that the easiest someone was empty and determined that about $32.- was away thing get in the world to do and missing. 00 was with it. the Okla- Doyal Connelly of Sergeant “He I was in said if to the store un- go Department City testified Police homa suspect masked that was one would it no Phillip Keen a from Dr. he received bullet being No one would ever know robbed. Ray it Lambert of and delivered to about it because there wouldn’t Investigation Bureau State Oklahoma store, I stopped witnesses. We at the on 1973. October in, put money in the went told her to Bu- Ray Lambert of the Oklahoma sack, grabbing did so and I was she a fire- appeared as Investigation reau of had cigarettes hand and some with one identified expert. He ballistics arms and hand, my was gun in left when I re- he had gun Exhibit 4 as No. State’s put cigarettes trying the Marlboro Kirby, testified from ceived Officer my right my gun left hand and Con- spent from bullet Officer receiving hand, accidentally went off. I gun ex- He then 30, 1973. nelly on October just her and after that I think it shot upon his ex- based opinion that pressed the it wouldn’t shooting her until started from fired had been this bullet amination car, anymore and ran back to the shoot re- later 4. When No. Exhibit State’s deadend streets going we down started Ex- called, identified State’s witness gun the car and I threw the outside bullet containing both 5 as hibit No. we home. went he bullet and the previously mentioned money Bobby, how much “Question: 4No. Exhibit fired from State’s had test robbery ? taken in the above microscopic comparison. for use (Tr. about I believe $30.” “Answer: Oklahoma Kirby of the Denver Officer 392-393) identified State’s Department City Police received he had gun 4 as the No. Exhibit State’s H. Latham identified Harrison de- same Upchurch of Sergeant from caliber as a revolver Exhibit No. 4 .22 Ray partment, Lambert In this tape and delivered video statement defendant Investiga- Bureau of the Oklahoma State first advised of his rights and Justus then acknowledged 1973. tion on or about October same executing a waiver rights Regarding form. McKinney of Oklahoma Officer Ron subject offense, he then related that at Department identified State’s City Police about 3:30 to 3:45 a. night m. on the there- him delivered to gun Exhibit No. of, he and riding defendant Williams were Embery the afternoon by William around the car of defendant look- Justus shortly 30, 1973, which he October ing someone, something, to hit when Hill, lab tech- thereafter released John his co-defendant directed him Tom’s Department. with the Police nician Market. personally He did not favor of the Oklahoma G. Hill Officer John location, but defendant Williams was fa- City Department identified State’s Police miliar with the store and had observed received gun as the he had Exhibit No. 4 quite money parked a bit of He there. McKinney on October from Officer car on the north side of the store *13 deter- gun and processing the 1973. After engine running and defendant Williams en- El- to one mining registered owner the tered the with gun wearing store a and the ex- Dempsey, mer the witness secured car, gloves. While in four the Re heard De- a the in locked cabinet at Police hibit shots, interjected and that there were into partment. gun then admitted was supposed to be fired a shots but evidence. robbery. Defendant then came Williams running out with two cartons of Marlboro Keen, Examiner a Medical Phillip Dr. cigarettes bag money, and a of said and pathologist with the and forensic Office hip that he had shot her in and once the Examiner for the State the Medical Chief three times in the and he sure face was performed Oklahoma, that he testified she was fleeing neighbor- dead. While the Cherry autopsy upon body the Lee an car, kept running in they then hood his 30, 1973, deter- Kennedy and on October into deadend streets. Defendant Williams gunshot to be a cause of death mined the asked him what should be done the with to head. The witness observed wound the gun, and his advice defendant Wil- leg, at left another a bullet wound the wiped liams then and it gun the threw right temple, and top head in the watching from the while car he was en- which then a third to the left shoulder They police road and looking for cars. lodged cheek and behind tered left evenly split mon- then drove home and jaw. was recovered right The latter bullet ey, plus change, estimated at some $32.00 Connelly and released to Officer and one cartons of each took of the two Department. State’s City Police Oklahoma cigarettes. arrested, each defendant When evi- into was then admitted Exhibit No. 5 cigarettes, package had one of Marlboro dence. those and he stated that these came from Coffia, assigned to the Bob Officer robbery. cartons taken in the Defendant J. Division of Oklahoma Special Services and identified further described Justus gun he Department, testified City Police explained that robbery, used in the and tape equip- video in the use of was trained gun to defendant he had recommended the ment, Exhibit No. identified State’s purchased his co-defendant Williams when interrogation an tape portraying a video as meet, he swap and that thereafter it at he at made defendant which Justus gun target practice. fired the No- Department on City Police Oklahoma for the State in chief The final witness tape then This was video vember 1973. Okla- Jerry Detective Guinn was to the exhibited evidence and admitted into Department who testified City Police homa jury. participated that he also in the arrest of mitted prior convictions embezzlement 2, 1973, and and charge. both defendants on November a Federal stolen automobile defendant interrogated thereafter Justus In cross-examination de- rights him advising after his the vid- Gayle fendant Williams testified that Kim- tape eo marked Exhibit State’s No. as brough legally married, was her during which that defendant identified military husband was service over- gun State’s Exhibit 4 as the therein No. seas. claimed that time of the He at the discussed. Gayle crime he at home Kim- was with brough children, and her that he had took wit- Defendant Williams next given piece paper had received he in his ness stand own defense. Insofar Attorney from Assistant District testimony responsive his was to the evi- Gayle Kimbrough po- her at the mother present- dence of the State and the issues lice telling station. He admitted Detective ed, purchased having he admitted Knight going that he knew was the crime subject gun but have it claimed to traded to happen, said that but this had been lie. Alton (Cooper) one Oliver October He also testified that defendant was Justus any participation or 29. He also denied gun purchased him when the was thereof, any knowledge the crime gun. had it good commented that and asserted that the confession was defendant cross-examination on behalf of previously signed requested after he had implicated Justus, he testified that he had attorney knowledge without Knight that defendant because detective Knight thereof Detective contents because knowledge wanted him to and that to his Kimbrough, Gayle threatened rearrest *14 defendant had involved in not been Justus had the woman with whom this defendant the offense. living, Knight and been because Detective protect her had indicated that he would McConnel, Ed attorney, next testified he from friends of defendant if request that at the of defend- sister Justus sign explained He would instrument. jail ant in Williams he consulted with him Gayle seven months Kimbrough that was on the and evening of November custoy had into pregnant and been taken distraught quite found the defendant to be same with this offense on the connection unresponsive. and arrested, night previously he had been that Gayle Kimbrough in- then testified and that had been mistreated and claimed she pertinent generally sofar as here confirmed calling officers her names and tell- relationship her Williams defendant jail. baby that the would be born in ing her sur- his account of the circumstances signing the instru- Although he knew that rounding her arrest detention. crime, in the he involve him ment would de- testified the final Patricia Choate that at he did not know testified the time fense that witness for defendant Williams confession, be a contents this to Kimbrough, Gayle she was the mother of fur- thereof were not his statements. He City and that while at the Oklahoma Police shortly that before defendant ther testified Department gave a defendant her Williams tape on made his statement video Justus piece Assistant Dis- paper signed tape gave he a video state- November Attorney. trict had not looked for She implicating defendant because ment Justus paper, thought that it home. but was at re- they told him that would the authorities Gayle Kimbrough, and himself and lease in his next testified Defendant Justus Attorney a gave him an Assistant District behalf that he was threatened own expressed piece paper his wherein he tape confes- making the coerced into video pur- prosecute him agreement not for while under being coached and sion after par- as a if he would testi- chasing gun a felon of LSD. He denied influence crime, ticipation asserted ad- in the fy He also against defendant Justus. was home with his wife and son at the tion day he she testified that the next she ver- time This defendant ex- of the offense. ified a statement her had husband plained pill he had taken one hit or crime, made himself in implicating but arrest, shortly before his and swal- LSD she had lied because her husband had eight pills just prior remaining begged lowed the verify stating his her statement keep being caught from to his arrest that he had been she threatened and if repeated Despite requests his with them. didn’t he City would not it out of make ques- attorney, he was thereafter for an Jail. vid- viewing After a tioned several times. rebuttal, Huff, report Elizabeth tape by defendant Wil- eo statement made clerk for City the Oklahoma Police De- while still under the influence liams and partment, prepared testified that she LSD, tape give video agreed he his statement of defendant he Williams after had Knight after Detective confession instrument, rights was read his from that repeatedly gun him with a threatened typing questions and answers between say. He ad- prepared him as to what to Knight Detective and that defendant word being mitted with defendant Williams Defendant then word. Williams was prior to gun purchased, but was when asked to read the statement and initial the gun last seen the his arrest claimed to have errors, typographical encircled which he Alton gave it to defendant Williams when did signing addition to the instrument. prior convictions He also admitted Oliver. Jerry was then Guinn recalled and testi- attempted larce- degree forgery, for second fied that after defendant his gave Justus Dyer automobile, Act viola- ny and a of an tape video brought statement his wife was juvenile. tion awhen his request, at and that defendant then that he next testified told Jimmy her he had made full and truthful Justus Justus, and that father of defendant statement and he wanted her to do Detective telephone call from response to same. De- at the Police he his son Knight visited Knight Adam was then recalled and tes- his day of
partment midnight after tified that he never rehearsed defendant being as then his He described son arrest. give a statement nor threatened Justus rath- speech was his glassy-eyed, and “real gun. him with a *15 eyes his times, would roll and he er slow at Larry Upchurch then called Officer was in awhile.” every once in his back head as the the final rebuttal witness denied Detec- testified (Tr. 554) He further previous Gayle Kimbrough assertion of had been murder told him a Knight tive by dragging her that he had mistreated her be- they did not and, although committed about. involved, they wanted was his son lieve no to de- The then rested rebuttal and his son with use his influence him to be- of evidence in was offered in knowledge might he have surrebuttal what termine half of the defendants. matter. error, assignment the final each In their first of testified then Barbara Justus of sentence the wife defendant contends that the death was then she witness defense he imposed jury “was cannot be because the confirmed defendant Justus excluding time of chosen veniremen for cause her at home with was objec- as an simply they general voiced arrested because been had also She crime. day expressed penalty or the same tions to the death the murder accessory to against arrested, scruples when religious or conscientious was husband that her infliction,” Witherspoon De- in violation of the Police its him at with first talked she 1770, 510, 522, Illinois, have 88 they not S.Ct. did v. 391 U.S. her that he told partment n already re- (1968), and other had 20 776 he L.Ed.2d because say anything to prin- This contention sulting examina- further decisions. lawyer. On asked for However, Angel in of Mrs. the voir dire of Mrs. upon the exclusion cipally based extensive, and she was not however, regard made of is also mention Angel, appar- Hall, until became excused the conclusion against Mr. challenge only ent that at she did best not know whether empanelled, these were the those they apply the because she could law to evidence be excused two veniremen juror in capital punishment. The and honor the oath of a this case. opposed to were We, therefore, proposition of these find this to be dire examination pertinent voir merit, adopt Appendix without and in support in the thereof is set forth veniremen following language from Justus: attached. hereto challenge are that a “We case of Justus In the recent appropriate for cause is the extent how State, Okl.Cr., 542 P.2d equivocal that the venireman is and un- applicability ever, held that this Court capacity regarding certain his to follow those limited to cases Witherspoon was juror. the law and honor oath of a the offense where, upon conviction for Clearly, prospective juror no resolve charged, has discretion animosity concerning pen- the death suffer death defendant shall whether the alty if should be excused this basis degree punishment, lesser or some personal able to set aside or atti- beliefs O.S.Supp.1974, provisions under try tudes and fulfill the oath to the case infra, observed that: seq., et see we 701.1 § impartially according to law and the have, people through the “. However, evidence. satisfied if predetermined that such of- Legislature, beyond guilt defendant’s a reasonable proper for the exclusive are cases fenses doubt, a venireman as to is unresolved capital punishment, and assessment of whether he could then assess death inquiry is pertinent voir dire whether penalty, knowing or the death thereof, can delib- in view the veniremen upon conviction, mandatory be he is un- impartially un- the evidence erate certain whether he could stand indiffer- punishment and assess such der the law ent between the defendant and the State beyond a rea- guilt be established should deliberating according his verdict sonable doubt.” evidence, the law and the then he has to he that extent forewarned the court that provisions Pursuant to the comply is undecided whether he could O.S.1971, fur ¶[8, we [[2 §§ juror. challenge with the oath of a A appropriate ba that the ther held Justus granted against should cause such or may implied be for bias challenge sis for venireman, for otherwise the adminis- personal extent that the actual bias to the tration of the oath would be frivolous. will scruples opinions of a venireman cogent agree argument with the We Leg yield as enacted to the law *16 that the trial court should not State Mr. Clearly, examination of islature. accept juror who does not know opposed to that he was so Hall established law, whether can follow the and that he not, in capital punishment that he could do otherwise create chaos and would case, agree imposing to a verdict system jurisprudence make our of irrespective and penalty, of the law death mockery personal based whims prove the assuming the were to even State, as the of individuals. The as well beyond a reasonable guilty defendant defendant, fair im- is entitled to a and Angel examination of Mrs. doubt. The partial jury. . .” . person had unquestionably reveals she penal Defendant next raises six as- concerning the death Williams al reservations error, through signments her numbered two regarding ty, and that she vascillated seven, presented by Brief de- not capacity reservations aside and to set those assignment his impartial juror. fendant In second and be a fair otherwise Justus. error, contends that he had knowingly, defendant Williams voluntarily, in- and confession, 2A, telligently his Exhibit No. made State’s the same with the benefits improperly admitted of his rights. into evidence because Miranda ruling, In so adequately deter- trial part: the trial court failed to court stated in and rule the voluntariness “THE up mine COURT: I will take State’s thereof, presented and the evidence to the Exhibit pur- No. to start with. It’s a portedly signed trial court established the same have confession of the De- involuntarily been executed under coercion. fendant my Williams. It is understand- ing of law question that the is: Was empanelling Following voluntary? it And giv- No. 2: itWas prior opening and to the statement en after being admonished of their rights the trial court conducted in the Miranda decision of the United evidentiary pres- hearing, outside the Supreme Now, States Court? we have jury, ence of the the admissi- regarding testimony one of the officer and the in- bility of the confession of each defend- itself, strument they was that did advise regard ant. to the confession de- him, that he was advised. he And that Williams, Knight fendant tes- Detective signed freely, voluntarily it and after the tified defendant was arrest- Williams warning Miranda that he testified that p. Friday, ed at 4:30 m. on a and ex- about gave Defendant, he to the in the face of ecuted State’s Exhibit No. at about 6:30 advised, statement itself said he was p. following Monday them. after the sub- plus the fact that Defendant Williams ject charges day. were filed earlier that said signed himself that he the state- He testified that this interview was further ment. defendant, request at the of that initiated point “From the Defendant’s of view of and, rights after of his as being advised statement, they say this it was not volun- reading and them contained that exhibit tary, it, that he did not read he didn’t himself, gave that statement the defendant it, understand he didn’t know what he stenographer which was transcribed was signing, that signed he had it to signed by During this defendant. keep lady, wife, his common-law period, four-day Knight Detective ex- fiance, jail, out of . plained that defendant inter- Williams was “. has He testified that he didn’t rogated times, a total of four but that it, understand against will, it was his these concerned several other offenses so forth. I think ques- that makes it a very subject little time dealt with the of- Jury tion fact for the to decide: The fense. Defendant Williams then testified statement, voluntary whether it’s volun- essentially as regard above set forth with I tary or not. don’t under the evi- Drayson, confession. Marie mother find dence in this case that as a matter Williams, of defendant fi- testified as the law, that it is unvoluntary state- (sic) nal telephoned witness that her son her ment. [Emphasis day added] of his arrest and her that advised custody murder, he inwas charged with “You have a conflict between the state- request itself, but did not get him testimony officer, she a law- ment of the yer, and that when telephoned testimony she then I Defendant. So jail she was permission refused up to see her will leave that Jury to the to decide ordering son. After the deletion to whether or proper not under in- reference offense, structions, to another distinct voluntary. whether it’s *17 permitting and the substitution of State’s Jury “If the finds that the statement is Exhibit No. 2A for Exhibit State’s No. voluntary, they then will be instruct- 2, modified, as so the trial court then over- disregard do, ed to If they it. under the ruled Suppress a Motion to the confession you know, gentlemen law as they can wherein defendant Williams asserted that you consider But I it. think have a
572 regard to the by the accused and without determined the fact to be
question of
may again be raised before
(Tr.
fact the issue
by
.”
Jury, not
the Court.
against
if
defendant.
jury
the
decided
308-310)
the
84 S.Ct.
However,
ruling
lies
P.2d
upon
regard
by
919-920
the
Jackson
Regarding
1774,
that decision was
in Tice
trial
573 that the ac- and uncontroverted general was clear The rule in regard subjected to severe beat- is set cused had been forth in Am.Jur.2d, 29 Evidence, § 535, at this ings. page 586, evidence adduced Neither the follows: whole, sup- as a hearing, nor the record “When confession is admissible, the that defendant ports the contention whole of what the upon accused said repeated questioning subjected to over was subject at the time of making the confes- actually not incarcer- long hours. He was sion is admissible and should be taken hours on regular until outside court ated together; prosecution and if the fails to 2, charges Friday, 1973. These November prove statement, the whole accused issued were thereafter filed and a warrant put entitled to in evidence all that was regularly day first the court was on the said by to and him at the time which open following Monday, and the con- bears subject controversy, evening. fession was executed including any exculpatory self-serving or appearance defendant then had his initial declarations connected therewith. day. following the trial before court admissible, however, To be it 1038, State, Okl.Cr., In Fred v. 531 P.2d must clearly appear that the exculpatory (1975), 1046 this Court stated: statements were made in the same con- or conversation sought to be in- fession “[Mjere delay arraignment pris- aof evidence, troduced in and not other oner will not render the statement or separate or (Foot- occasions. . . involuntary, inadmissi- confession nor omitted, *19 574 States, purview
However,
authority
of Bruton
391
holding
cites no
so
v. United
he
123,
1620,
principle
in
in this re- U.S.
proving
by the declar-
the facts asserted
States Constitution.
rule, however,
hearsay
ant. The
does
operate,
apart
excep-
even
from its
already
have
held that the
We
tions,
every
to render inadmissible
state-
trial
in excluding
court was correct
repeated
by
ment
a
as made
witness
tape
self-serving hearsay
video
as a
decla
person.
another
It does not exclude evi-
exception to
coming
ration not
within an
prove
dence
offered to
the fact that
However, assuming arguendo
that rule.
statement
made
was
or a conversation
that this statement was otherwise admissi
had,
was
rather than the truth of what
ble,
agree
we further
with the trial court
was
said. Where the mere fact that
the failure
defendant Williams .to
statement was
made or
conversation
timely request
precluded
a severance
independently relevant,
was had is
re-
thereof,
introduction
since defendant Jus-
gardless
falsity,
its truth
such evi-
thereby
tus would
been
have
denied
dence is admissible as a verbal act.
right of
on a
cross-examination
statement
(Footnotes
.”
omitted)
purely inculpatory as to him
The
alone.
clearly
The record
reveals that defense
tape
introduction of the
would have been
fully
opportunity
was
counsel
afforded the
particularly flagrant here since defendant
to cross-examine the
witnesses
to
State’s
indicated,
evi-
testifying
in
at the
Williams
surrounding
circumstances
confes-
above,
dentiary
he
hearing discussed
sion and the extent to
that defend-
which
regarding
had not
told the truth
therein
previously interrogated.
ant was
We are
any
in
of defendant
involvement
Justus
that,
opinion
independent
subject
reveals that
offense. The record
asserted,
truth value of the facts therein
defense counsel for defendant Williams
exculpatory
statements contained in the
tape
learned of
existence of this video
tape,
themselves,
video
no
and of
had
However, a
preliminary hearing.
at the
probative
bearing
material
value
filed
was never
Motion for Severance
confessing
his
voluntariness of
actions
court,
not in
and this matter was
the trial
totally
days
two
argument
later. Such
un
presented to the trial court
manner
contrary
authority
and rationale
evidentiary hearing and after
til the above
upon which the above stated rules
based.
are
defendant
empanelled. The
Okl.Cr.,
State,
cites
509 P.2d
Clark v.
present-
assignment
fourth
of error
proposition.
support of
ed
defendant
assumes the vid-
Williams
timely
However,
de
held that a
we there
tape
eo
immediately
discussed
be
above to
have
severance should
fense motion for
prejudice
admissible but for
to defendant
in
sought to
granted
been
since
Justus, and asserts that a
should
severance
violative
prejudicially
troduce a confession
granted
have been
his co-defendant
since
case,
present
defendant
Bruton.
objected to the introduction thereof. Since
introduce, in
own
sought
his
Williams
exculpated
defendant Williams
therein
defense,
his co-
prejudicial to
co-defendant,
a statement
inculpated
himself and
his
nor the court
Neither the State
video defendant.
the trial court refused to admit this
anticipate whether
required
should
tape upon
grounds
that to do
additional
evi
might
one
seek to introduce
defendant
fatally
so
defendant
would be
violative of
prejudicial to a co-defendant
dence so
right
under the
confrontation
Justus’
a severance would be
We
lish a
necessitated.
sufficient chain of custody and
are of
the clear
that in such cases
therefore failed
adequately
prove that
the correct
rule
stated
Jones
exhibit had not been altered. This ar
Okl.Cr.,
*20
gument
527 P.2d
as fol
(1974),
predicated
174
is
upon the fact that
lows :
Officer Coffia had maintained custodial
possession by storing
tape
the
in a closet at
.
.
It is this Court’s
that
his home when not withdrawn for investi
it must always be
rule that
the
severance
gative
prosecutorial
purposes. Assum
requested
must
by
be
defense counsel
ing that under Bruton the defendant has
apprising
with counsel
trial
the
court of
standing
issue,
to raise this
despite a limit
may develop
circumstances which
which
ing instruction that this
competent
was
evi
prejudice
might
other co-defendants.
against
dence as
only,
confessor
we
judge
Without such information a
can-
proposition
find this
wholly
to be
without
presumed
not
can it be
to know or
con-
Authenticity
merit.
was sufficiently estab
appear
prejudice
sidered to
that
will re-
lished through
Coffia,
specifi
Officer
who
joinder.
sult from the
.”
cally identified
tape
the video
and testified
In passing, we are constrained
at the above evidentiary hearing that as
to observe that under
facts
and circum
presented this exhibit was a true and cor
presented,
stances here
the trial of this
representation
rect
of the actual events de
case as conducted did not constitute a fa
picted therein, and
original tape
that the
tally prejudicial
of the Bruton
violation
had not been
tampered
altered or
Although
rule.
in his confession defendant
any
187-188,
(Tr.
manner.
and 201-
195
Williams
indicated
defendant Justus
202) See Annotation 60 ALR3rd 333.
encouraged
victim,
him to kill the
and de
This specific argument
was
like facts
Justus,
confession,
fendant
in his
asserted
rejected
State, Fla.,
in Paramore v.
229
supposed
there
was not
to be
So.2d 855 (1969), vacated on other
shooting, both confessions
otherwise
were
grounds,
935,
2857,
408 U.S.
92
L.
S.Ct.
33
perfectly compatible
antagonistic
and not
Also,
Ed.2d
upholding
751
(1972).
to one
defendant ever
another. Neither
admissibility
tape
of a video
confession in
objected to the introduction of the confes
Swenson,
503,
Hendricks v.
456 F.2d
506
sion of the other or moved for a severance
(8th
1972),
Cir.
that Court stated:
upon this
Each defendant subse
basis.
proper
“If a
foundation
laid for the
quently took
witness stand
tape by
admission
showing
of
video
subjected
to cross-examination
his co-
truly
it
correctly depicted
defendant, and the trial court instructed
persons shown,
events and
and that
it
that each confession could be considered as
accurately reproduced the defendant’s
competent
evidence
as to the confes
confession, we feel that it is an advance-
sor and
to the other defendant.
procedure
ment in
field
of criminal
See,
State, Okl.Cr.,
Davis v.
U.S.
93
L.Ed.2d
S.Ct.
427,
assignment
error,
Florida,
of
that reversible error
Schneble v.
405 U.S.
(1973);
1056,
photo-
resulted
from the admission of the
(1972),
92 S.Ct.
set forth in ninth Now, “Q. Knight, you saw the .doc- Mr. thereof, Syllabus as follows : tor, you didn’t ? Yes, “A. sir. receive in evi- “Although it is error to a homi- gruesome photographs dence “Q. you heart Did see him take her victim, primarily to arouse designed cide out? photo- passion jury, such Yes, sir, “A. I did. *21 admissible; graphs they are rel- when are “Q. you Did see him remove or- other and evant to the issues before court gans of-her-body? outweighed probative not their value is Yes, sir, “A. I did. by danger the de- prejudice “Q. many pieces, Cut-her he? .didn’t fendant.” Yes, “A. sir. see, State, Okl.Cr., Also Vavra v. 509 P.2d “Q. Was she dead? Okl.Cr., Hopkins and (1973) v. Yes, (Tr. “A. together 374-375) au sir.” (1973), P.2d 580 with case
thority collected therein.
proposition
This
is also with
however,
merit,
out
for the reason that no
blood,
Despite
presence
objection was
testimony,
made to this
photograph
black and
in the
white
involved
for the further reason that defense counsel
present
ghastly
gruesome,
case was not
nor
Williams, himself, equal
for the defendant
but did reflect the condition and location
ly
area, thereby
inquired
waiving
into this
body upon being
shortly
of the
discovered
by
error
introduced
State. Al
following the crime. This exhibit was cor
done,
though
imperfectly
needlessly and
roborative
of the confession
each de
purpose
apparent
the record
that the
reveals
fendant,
testimony
inves
and of
prosecutor
pursuing
line of
tigating
Al
pathologist.
officers and the
interrogation was to establish that the vic
body
though the defendant asserts that the
thereby an
tim was
element
dead
picture
had
moved when the
was tak
been
corpus
predicate
delicti
aas
for admissibil
en,
conjecture
supported
this is mere
ity
objection, re
of the confessions. No
by
police
Other
record.
officers ar
admonishment,
quest or Motion for
prior
rived at the scene
the crime
Mistrial, was'interposed at the time of this
Knight,
Detective
but that witness testified
examination, rather, immediately following
accurately portrayed
that the exhibit
that examination defense counsel for de
body as he first observed the
We
victim.
fendant Williams cross-examined this-wit
(cid:127)
agree with the
the smeared
ness as follows:
depicted
may
blood
therein
'have been
body
caused
the victim’s own
move
“Q.
Har-
Now then. You stated to Mr.
ments
extraneous
sources not necessitat
ris that the doctor
her heart out?
took
ing the
body
conclusion that the
had been
Yes,
“A.
sir.
We, therefore,
pho
moved.
hold that the
bullet,
“Q. Did he find a
in.it ?
tograph was relevant to the issues before
No,
“A.
sir.
jury,
probative
that the
value
n “Q.
you
tell
that was the
Did he
the exhibit was not
the dan
outweighed
heart ?
ger
prejudice
to the defendant.
autop-
Sir,
seen numerous
“A.
I have
assignment
The seventh
of error of de-
sies.
prejudicial
fendant
asserts that
Williams
reversible error occurred in the direct
“Q.
you
you
Supreme
Then did
per
cut what
saw
Court rendered a
curiam
opinion stating
him take out ?
that:
personally
“A. Did I
do this ?
.
.
“.
The Court holds that
im-
position
carrying
out of the death
it
“Q.
your
Put
hand and examine
penalty in these cases constitutes cruel
it?
punishment
and unusual
in violation of
No,
“A.
(Tr.
sir.”
375-376)
Eighth
and Fourteenth Amend-
until
Not
further trial
the next
proceedings
ments.” (408
2727)
U.S.
92 S.Ct.
day did defendant Williams move for a
majority
A
of that
agree
court could not
claiming prejudice upon
mistrial
this basis.
specific
a more
statement of law for
general
rule in
regard
is set forth
application.
future
Each of the nine mem-
paragraph
Syllabus
three of the
Love
separate opinions,
bers of the court wrote
State, Okl.Cr.,
cert. to S.Ct. 701.3, in 963, 223, (No. providing 73- accordance with 42 177 95 L.Ed.2d S.Ct. § 29, part: 7031, and, 29, 1974); Act House Oct. 150, Legis Missouri Bill Vernon’s number “Every person convicted of murder approved Service, page 79
lative shall degree the first suffer death. 23, This subsequent 1975. thereto June trial, jury the jury the case a shall the death previously held that has Court determine whether the defendant punish and unusual penalty is not cruel guilty guilty or murder in the the fol se, re-affirms per now ment degree upon finding guilty first from Fesmire lowing language shall on their verdict and so indicate (1969), death Okl.Cr., 456 P.2d affirmatively in state their verdict Furman, pursuant modified sentence aIn defendant shall suffer death. 33 L.Ed.2d U.S. S.Ct. waived, case where trial is (1972): (1972), 502P.2d 1048 court, upon a case is to the tried “ comparative mer- Although . . . finding court, plea guilty have been capital punishment its of guilty the defendant is court that before presented arguments court degree, in the first of murder for its times, proponents many judgment shall enter a and sentence ” moral, legal, argued have its abolition . death. implications, neither and social Although many of other states re- Court of Court, yet Supreme as nor capital pun- sponding to Furman with new classify States, has seen fit the United ishment enactments have not deemed capital punishment imposition abolition sentencing total discretion therefore being and unusual and cruel necessary, statutory provi- the above of the Unit- of the Constitution violation clearly sentencing sions discre- eliminate ed States.” *23 Degree tion the crime Murder for of First 17, 1973, May the Oklahoma Effective representative within this State and are of capital punishment Legislature repealed necessary to the approach the extreme curb under provisions such as those Murder for sentencing unfettered discretion condemned held to be un- which death sentences were Comment, in that case. Discretion See Furman, 21 in and enacted constitutional Constitutionality the the New Death seq., in an effort O.S.Supp.1974, et 701.1 § Penalty Statutes, 1690 87 Harv.L.Rev. comply with the mandate of case. to are, however, pro- (1974). urged that We here convicted under The were defendants the within hibitive discretion remains 701.1, as provisions of which insofar the § capital punish- scheme for enforcement of pertinent provides: Specifically, argu- ment in this the State. “Homicide, perpetrated without au- when per- is made that unbridled discretion ment premeditated law and with a thority of prose- following respects: in the sists person the death of the design to effect may charge, any, if to decide what cutor killed, any being, is or of other human pursue in negotiate file and behalf degree in the in the follow- murder first plea for to a reduced guilty the a ing cases: offense; trying judge jury the the case or “2. [*] When [*] perpetrated by [*] [*] one commit- [*] [*] may find the defendant included offense; guilty may of a modify lesser imprisonment; rape, the death sentence to life attempting commit kid- ting or to and, extortion, may exercise executive purpose ar- Governor napping for the in clemency granting commutations degree, robbery armed or son in the first pardons. The contention also made following the sexual when death occurs guilty of may find the jury accused age under the molestation of a child affirm- Degree refuse to years;” First Murder but (16) sixteen
579 though that the de- . atively imposition in their verdict . . state upon suffer as called death sentence mandatory fendant shall death con- [is] 701.3, supra. How- O.S.Supp.1974, degree viction of rape, 21 first murder or § need ever, contention we death penalty to this latter as nevertheless discre- introductory tionary sentence that the observe and selective (a) the because So- penalty section death power to that makes licitor has the prosecute to for a conviction, at- mandatory upon and direct charge, lesser (b) jury power has the pro- O.S.1971, 927, which acquit tention to or to convict charge, § of a lesser vides : (c) power Governor has the commute the grant sentence or pardon; jury guilty, verdict of find
“Where punishment agree fail to * * * * * *. such inflicted, declare or do not Equal '“The Protection Clause of the verdict, court punishment their Fourteenth Amendment makes no dis- punishment and declare shall assess tinction between sentences to death and accordingly.” judgment and render sentences, imprisonment. The Due Com- filed curiae cite The briefs amicus Process pro- Clause of that amendment Juvenile, Mass., A 300 N.E. monwealth v. liberty tects as well as life. The discre- proposi- support of the (1973), 2d Solicitor, tion in the and in tion that Furman extends to discre- Governor, of which the amicus cur- penalty at tionary imposition the death complains, iae non-capital extends also to all In that case court held levels. If cases. the existence of discre- these prohibited imposition death Furman tionary powers imposition makes the juvenile statutory under penalty unconstitutional, the death it provisions whereby even conviction would also make unconstitutional all judge as an adult the trial could within his prison terms, long however or short. either discretion sentence the accused Quite obviously, this is not the kind of death, capital possibility or eliminate the Supreme discretion which the Court of punishment by adjudicating him a de- to be the United impermissible States held linquent despite prior judicial child deter- Furman Georgia v. . .” prosecuted mination he should be Also, Commonwealth, Jefferson Furman, Like deals adult. case Va. S.E.2d 260-261 sentencing judge discretion *24 that court to refused extend Furman be- conviction, jury upon and does not stand yond discretionary sentencing and held: juvenile a proposition for the cannot “While conceding only death is the prosecution be certified for as an adult on penalty may imposed upon which be con- punishment capital provi- valid otherwise killing prison viction of a guard construed, per- sions. As so case is . argues defendant that ‘the align fectly in with Furman. operation statute’s inevitably requires the Furman, argu- in this Since the decision exercise of range a broad of uncon- has, part, presented ment in been whole or by trolled selective discretion’ Common- states, highest to the of at least six court wealth’s attorneys judges and trial has the extent offered been consist- to Virginia of Governor ex- could Jarrette, Thus; ently in rejected. State v. clemency. tend executive . 741 and 202 S.E.2d N.C. argument “The substance is that fol- part in (1974), that court reasoned as imposing a statute is death lows : constitutionally infirm under Furman arguments any “The and of may defendant where discretion be exercised any time, the amicus . . may by curiae . be be- authority at either fore, summarized as . . Al- during follows: . or after trial. tion, by amicus complained of now Furman. The do not so construe
“We curiae, prosecuting in has been vested infirmity found there was constitutional country. throughout the officers With- it a or punishment, in be fixing it, greatest injustices nec- application is out would thus judge. a Furman’s per- essarily permit be inflicted innocent such limited to statutes which (202 S.E.2d sons accused crime.” to exercised.” discretion be 741-742) prosecutorial particular regard to With Jarrette, supra, stat- discretion, in the court recently Additionally, this has rec- part ed in as follows: ognized legislative of cir- curtailment “ . of the Solicitor decision can, in the trial court cumstances which seek he will as the offense for which to plea accept plea pursuant bargaining, a to jury and grand from the an indictment re- a guilty to lesser included offense accept, with to whether to his decision as Degree in from First Murder duced court, a plea a to permission of the Warren, Okl.Cr., Young ex 536 P.2d rel. the of- charge, included within lesser in 971-972 wherein we stated re- specified in the indictment fense part: turned, an evaluation are the results of required, the trial court is “Since before evidence, including its of the available giving ... an instruction on credibility. decision The Solicitor’s offense, in at lesser a trial for Murder crime, pun- charge with a a defendant Degree, the First the record cause convicted, ais he is ishable death if he reflect the evidence which bases when, one, properly reached solemn offense, his instruction for the lesser judgment, evidence in the Solicitor’s 701.3, O.S.Supp.1974, it [See infra] § is convincing. This guilt is clear and necessarily may follows that he not con- There often a human evaluation. stitutionally plea allow bargaining be- concern- difference room for defendant, tween the State and the or say, as the brief ing it. To does defendants, following unless the condi- curiae, the Solicitor that because amicus tions are met: many should cases that he determines offense, his of a lesser seek conviction capital preliminary “In all where cases capital to seek convictions on decisions examination has been conducted on the ais charges in other cases are ‘freakish’ charge Degree, of Murder in the First patent absurdity . case, testimony in instant and the preliminary taken at said examination power of purpose vesting the “The defendant, sufficient to hold the de or him is to enable judgment an official fendants, trial, defendant, and the in different different decisions make defendants, plea thereafter enters a light he determines of what cases court, guilty arraignment, at the trial materially situations. different factual permitting before a reduction of are based on governmental All actions charge Degree First from Murder responsibility. The delegation *25 offense, any require to lesser MUST to the Constitu- Fourteenth Amendment State, by es competent the to evidence re- does not States tion United to tablish that sufficient evidence exists its quire state, a in the enforcement of defendant, establish that the or defend laws, hedge prosecuting its criminal so to ants, guilty the lesser included was of he attorney ‘guidelines’ that about with offense, in De and not Murder the First automaton, acting on the a mere becomes g reiterate that to do otherwise We all computer treating a impulse of and ree. the clear intent of 21 O.S. would violate ex- persons conduct accused of criminal 701.3, Supp.1974, and unconsti render § the actly alike. From foundation O.S.Supp. provisions the of 21 tutional date, present the discre- country to the
581
the
1974, 701.1,
capital punishment
the
of
acted statute making
under
decisions
§
Supreme
mandatory
murder,
in Furman
degree
United
for first
States
assum-
ing
application,
uniform
and further re-
“
part
stated in
following
dictum from
opinion shall
Nothing in this
.
.
.
Dickerson,
State
Del.Supr.,
v.
298 A.2d
precluding the State
construed
(1972),
769-770
as follows:
any
in
defendants
granting
from
“ ‘* * *
immunity
case,
otherwise,
capital or
the result reached here does
long
necessarily
immuni-
prosecution,
problems
from
so
as the
solve
cre-
any
ated
ty granted conforms to the Constitution
Furman decision for
wishing
state
punish-
the State of
to
capital
and statutes of
Oklahoma
retain
History
of
ment.
mandatory
and statutes
shows that the
and the Constitution
death
degree
sentence for first
murder is
United States.
open
caprice
also
and discrimination
procedure de-
emphasize that
“We
imposition
in the
penalty.
death
above,
applicable only to
tailed
is
jury’s
The
route for the exercise of such
defendant,
defend-
cases wherein the
or
caprice
discrimination,
and
historically,
ants,
Mur-
charged
originally
return a
for a
verdict
lesser-in-
Degree in
der in the First
violation
carrying
cluded offense
penalty.
lesser
O.S.Supp.1974,
21
701.1.
§
“Nothing in
should be con-
“ ‘Obviously, any
appli-
lack
uniform
from
prohibiting the trial court
strued as
caprice
discrimination or
in
cation—
by 21
provided
manner
instructing in the
imposition
death
sentence via
701.3,
O.S.Supp.1974,
if the evidence
§
the lesser-included offense route—will
an
on a
on trial warrants
instruction
expose the mandatory death penalty pro-
lesser offense.”
Statute,
hereby up-
vision
the Murder
in-
regard
instructions on lesser
With
held, to the same condemnation as was
701.3,
offenses, O.S.Supp.1974,
21
cluded
§
accorded the Mercy
Statute
the Fur-
provides:
(331
144-145)
man case.’”
A.2d
“
jury trial
.
.
.
In
for murder
However,
Hill, La.,
in both
297
State v.
nothing in
section
degree,
the first
La.,
(1974)
Selman,
So.2d
v.
State
in-
preclude
judge
shall
the trial
from
(1974),
rejected
So.2d 467
that court
structing
jury regarding
lesser
the contention that lesser included or re-
degrees
included
lesser
offenses
sponsive
provided
verdicts
for
statute
such
homicide if the evidence warrants
permitted
jury
to exercise uncontrolled
instructions;
every
instance
but
prohibited
discretion
by Furman.
In State
jury
where
authorizes the
instruction
Dixon, Fla.,
v.
So.2d
to consider
lesser
included offenses
upheld
court
a capital punishment enact-
homicide,
judge
degrees
and lesser
responsive
Furman,
ment
which unlike
shall state into
record his
reasons
requires
our
judge
jury
statute
giving
upon the ev-
the instruction based
weigh aggravating
mitigating
cir-
idence
at trial.”
adduced
pen-
cumstances before assessing the death
alty.
reasoned,
part,
That court
as fol-
juris-
State of Delaware
lows:
seemingly
view
adopt
diction noted to
“
urged upon
prohibitive
discre-
.
presence
now
us
.
.
The mere
of discre
judge
procedure
remains
tion in the sentencing
tion
where
cannot
may
guilty
trying
procedure
the case
find the accused
render the
Fur
violative of
; was,
v.
Georgia,
a lesser
offense.
man
included
.
it
rath
*26
(1975)
er,
Del.Supr.,
gravating before the death circumstances presence sentencing discretion in the of holding, penalty be assessed. In so could process procedure not render that does part in as follows: court reasoned is rather violative of It Furman. “ Supreme mul- . . . The U.S. Court’s quality of discretion and manner in tiple-opinion decision Furman it applied which that must be con- ajar, seems leave the door Jackson trolled. all To eliminate discretion on extent, new some . . . least to at part would be to risk permitting by legislation the States elimination that valuable element discretion controlled exercise some permits which individualization based on objective through the standards use extenuating consideration all circum- sentencing authority may be which stances would eliminate the element death. imposing the guided in mercy, the fundamental tradi- one of conclude, free, are we must The States system jurispru- criminal tions of our system of manda- provide a new short If assessment dence. discretion tory application, . punishment can under a statute be shown “ question is not The essential . controlled, be reasonable rather permits new death statute whether our capricious discriminatory, than discretion, ad- because the use of some (at page test will be met.” of Furman does, but, rather, mittedly it whether omitted) footnote to be exercised controlled discretion that 21 indicated This objective standards so as clear and 701.3, strictly should be O.S.Supp.1974, non-discriminatory application. § produce included instruc permit lesser construed is inherent all, discretion some After clearly appropriate tions where final from arrest to justice, any system of *27 Okl.Cr., position, class P.2d 739 or sex the defendant or Murray v. of arbitrary fact; that an instruction other and Court (1974), wherein we held the Degree improper specifically shall upon Murder was determine whether Second dispro- Degree prosecution substantially al is First Murder sentence death portionate perpetrated pursuant penalty imposed an armed to the sim- legedly therewith, cases, in robbery. In ilar crime considering accordance both the upon a lesser offense included and the defendant. struction appropriate present given in the was or “Should the Court determine that However, opinion are of the that we case. discriminatory of death is or sentence approach construed introduced as so substantially disproportionate pen- to the through only satisfactory is the statute cases, alty considering imposed similar lawful manner in which both the inter and defendant, crime both the and the impartial in a fair est defendant and modify sentence of death Court shall by jury right State to trial and the in the penitentiary life at hard labor.” may fully prosecute be maintained. To Opinion herein, Interim re- our we upon appropriate extent instructions jected O.S.Supp. the contention that 21 submitted, included offenses are not lesser 701.6, per- and introduce 701.5 or §§ jury opportunity would not have the petuate in an discretionary another level might only consider whether the defendant already discretionary system. Pur- riddled crime, guilty and he be less serious evidentiary con- hearing suant thereto deprived thereby effectively would templated assigned was heard therein right complete his to a full and trial purpose determining for the whether Also, jury. jeopardy attach to since would sentence of death was the dis- result of prosecution upon any further nec offense substantially or disproportion- crimination essarily charged, in included within that cases, penalty imposed ate to the in similar charges, the the selection or election of thereby principles violative of due prosecutor speculate required would be process equal protection of the law. upon might what evidence the ulti No evidence offered either the de- mately believe. hearing. fendants or the State appellate review, O.S.Supp.1974, As Rather, shortly prior thereto each defend- 701.6, provide: 701.5 and respectively, §§ ant motion requesting filed a Appeals “The Court of Criminal when guidelines Court establish for the review reviewing judgment and sentence of statutory of death sentences under those shall, instance, deter- death the first provisions, and party candidly each hereto occurring mine whether at errors of law indicated that guidelines without such these modification, require trial reversal but or vague statutes were so uncertain if that there the Court shall determine they were unaware proceed. as to how to are not errors re- of law in the record modification, quiring reversal We are now of the purpose shall Court then convene for O.S.Supp.1974, 701.6, that 21 701.5 §§ reviewing the sentence of death. are provisions unconstitutional. The re shall set a for an evi- date certain garding hearing contemplated therein dentiary hearing, purpose of which are vague, so indefinite and uncertain that will be to sentence of determine if the they incapable are interpreta rational comports principles of death with the implementation tion and without additional process protection equal Also, due legislation. duplici hearing such a Upon hearing Court shall law. procedure tous previously to that estab determine death whether the sentence of presentation lished for the of evidence be awas result of based on issue, discrimination fore the trial court any legal race, creed, condition, economic social including prin issues such as adherence to *28 584 however, O.S.Supp.1974, of tutionality, process equal protection
ciples of due re 701.6, render the do not fulfilling 701.5 and law, then with this Court §§ of the unconstitu Act provisions of that maining a appellate rather than review the of role enacted provisions were by since tional those do not impression. first We court of attached, see, severability clause however, any with a in man herein, our decision Session Bill Oklahoma House No. right a defend preclude of or limit the ner pages 240-242. Chapter present Laws appeal to this ant before Court newly Trial based a for New Motion VI, 10, of the Oklahoma Article § provided evidence as otherwise discovered authority grants the Governor Constitution also, O.S.1971, Rule 953. for in 22 See § of pardon to those convicted commute or 18, App. 2.12, O.S.Supp.1974, Ch. 22. capital upon a favorable recom offenses preclude the in this shall Nothing opinion by majority the Pardon mendation a of asserting of con violation from defendants agree that We Parole Board. cannot stitutionally guaranteed rights not dealt must, as system such a executive review of opinion post in a within this conviction such, discrimination. introduce invidious provisions proceeding under the of O. regard join in Jar- In this we the court Further, S.1971, seq. 1080 et under the § rette, supra, in reasoning that: mandatory punishment capital scheme of adopted by the are Legislature, we of the . quite that . . the Consti- is “It true proper remedy, the where oth the gives to tution of North Carolina deprivation any appropriate, authority erwise for of to of this State the Governor right process equal imposed upon accused’s to due a death sentence commute protection the a defendant, of law is reversal for new grant such de- to to imprison trial rather modification to life pardon, fendant absolute ment. The of modification im- exercise such such sentence disturb refuse powers by this Court for an posed upon offense which defendant. a different Legislature the otherwise has mandated of the . Unit- Constitution [T]he capital punishment power would be violative of the a like ed States confers Furman, power Court mod as have been able President. far we So ify imposed by determine, a power sentence the or the a like vested trial must Governor, court be within the limits the or some other official provisions statutory governing partic Department, each of the Executive See, ular charged. crime power Brown v. has existed and states. This our Okl.Cr., 314 P.2d (1957). repeatedly by Since been exercised has Legislature provided has but one sen now every state and Governors of tence Degree offense of First from President of the United States Murder, appropriate inquiry is wheth country. If its existence birth of our Degree er First conviction for Murder imposi- frequent exercise makes is consistent the law wheth and not unconstitutional tion of death substantially er a sentence death per se, Supreme the nine Justices penalty imposed disproportionate to the wasted Court of United States in similar Those cases under the cases. great paper thought deal of and much mercy preceded 21 statutes which O.S. . Georgia, . . None Furman Supp.1974, are ir seq., suggested 701.1 et now in that them so case. § pun relevant insofar as assessment of exercises his The Governor course, any dis ishment is concerned. Of investigation of the rec- judgment after capi criminatory application of the current circumstances, ord of the trial other provisions present punishment tal could be subsequently evi- including discovered right to rulings violation of a defendant’s ed dence. This reviews re- judge. trial The Governor unconsti equal protection the law. The jury, deny equal protection would proc- which we views decision of and due ess may one of the law in not do. The exercise Gover- violation the Four- teenth judgment, resulting nor in the Amendment United States Among man Constitution. other cases commutation of the sentence of one cited *29 support Oklahoma, thereof rape convicted of or and the re- is Skinner v. murder 535, 1110, 316 U.S. 62 fusal S.Ct. 86 to commute the sentence of another L.Ed. 1655 (1942), wherein crime, Supreme convicted of called the United States such cannot be Court held provid- that a ‘arbitrary’ statutory scheme merely ‘freakish’ or because ing for the sterilization might, theoretically, another of habitual crimi- Governor nals was Equal violative of the Protection opposite have reached conclusions.” Clause, as provided the Act (202 for the sterili- 742-743) S.E.2d zation of those of convicted such offenses by We in regard are further fortified larceny as fraud, by exempted theft or but employed by language the the United those convicted of such embez- offenses as Supreme post-Furman in States Court zlement, crimes may which be distin- 256, Reed, case of 95 Schick v. 419 U.S. guished upon only so subtle a basis as 379, 42 (1974), S.Ct. 430 as fol- L.Ed.2d when the felonious intent arose. In so lows : holding, part the court there reasoned in as “. . . [Tjhis long Court has read the follows: authorizing Constitution as the President “. . . lays unequal When the law by deal with granting individual cases hand on those in- who have committed pardons. conditional very essence trinsically the quality same of offense of pardoning power is to treat each it . has a dis- made as invidious individually. case partic- crimination as it a if had selected oppressive ular or nationality race for clemency “. . . in- Individual acts of . .” 62 (316 treatment. . U.S. herently discriminating call for choices ” 1113) S.Ct. . because no two cases are the . same. Plowever, further that we observe As recognized there the United States recognized court there that: Supreme Court, this was state sys- . “. . Under our constitutional previous at law the of their time decision determining reach tem the in States Furman, yet in in there was no indication scope particular legislation need power Furman that the of executive clem- symmetry.’ provide ‘abstract not ency had resulted the invidious discrimi- They may apart set . mark and nation therein criticized. types problems accord- the classes and We therefore hold that the scheme sug- or ing to needs and as dictated capital punishment enforcement of experience must gested by . . .We within this provisions State under machinery govern- that the remember O.S.Supp.1974, seq., 701.1 et as con § it not al- would not if were ment work strued, does not constitute cruel and unusu Only play joints.’ a little its lowed punishment al and is not violative of the that the recently the view we reaffirmed Eighth and Fourteenth Amendments to the prevent protection does equal clause not United States interpreted Constitution as ‘degrees recognizing legislature from by the United Supreme States Court in does ‘the of evil’ . . . Constitution Furman. are different require things which We consider next in law as argument be treated fact or statutory capital they classification of the same.’ though offenses were under Thus, which question a defendants if were convicted we had here crimes, so arbitrary, such discriminatory, vague to a classification State’s larceny, enforcement substan- no penalty the death as embezzlement guard unconstitutional because raised. question would be
tial federal persons applica whom classification not constrained . For Also, California, 222 Finley U.S. ig- ble. power to police in the of its exercise L.Ed. 75 marks class S.Ct. which experience nore Supreme upheld a United States offenses for family of offenders or a mandating the death state statute prevented is it special Nor treatment. serving a in a state for those life sentence from con- protection clause equal prison fe committed a malicious and who classes of fining to those ‘its restrictions another, rejected lonious assault is deemed to cases the need where an enactment de- the contention such all law does . clearest.’ ‘[T]he discriminatory as be- laws and was all that it it does when is needed protection of equal nied accused can, it all applies policy, indicates *30 serving less tween and lines, bring him those convicts to with- and seeks within the Furman, simple er Prior to armed far similarly so terms. in the all situated lines attempt robbery, as commit (316 as well the to allow.’” and its means so fast as same, punishable by the death or im 1112, was 539-540, citations 62 U.S. S.Ct. prisonment the at discretion omitted) O.S.1971, 801, irrespective of under 21 § of the various classifications Of in the commis whether homicide resulted O.S.Supp. capital set forth in 21 offenses kid This also true of sion was thereof. 1974, 701.1, the defendants were convict § purpose and napping the of extortion for “felony-murder” cate ed under one O.S.1971, rape 21 745 degree first under §§ by the to be of gories Legislature deemed respectively. and 1115 These are felonies they such a be nature that should classified traditionally recognized which have been Degree Degree as First rather than Second that the ultimate being as of such nature 1974, Murder O.S.Supp. 21 701.2. under § penalty death should be authorized. Although urged that each the we are classify Clearly, Legislative purpose in the paragraphs ten within the enumerated “felony-murders” de ing as first certain statute are this basis aforementioned gree degree than murder rather second unconstitutional, previously as observed deter, penalty, to death those the provisions these were enacted with a sever- particularly heinous and brutal crimes of a ability attached, House Bill No. clause see necessarily as felonies nature as well those 1101, supra, we the and are therefore of involving great or serious risk of death opinion standing have that the defendants course, bodily to to injury the victim. Of to raise issue the extent that underly penalty the death for the mandate premeditated perpetration the unlawful felony, irrespective homi ing of whether committing attempt of homicide while resulted, might operate cide well to encour ing robbery may to commit armed consti victim, age the murder of the since tute such a classification. in perpetrator could now of such felonies may thereby greater penalty cur no are of that this We pre better his This aspect conceal crime. seriously of the statute be cannot viously upheld imposition of the death argued vague, con to be indefinite or under simple robbery trary armed contention such a classifi State, Ellis v. 54 Okl. arbitrary above statute in discriminatory cation we 295, in Ro (1933); Cr. P.2d 972 legitimate find the 19 same constitute 166, State, 259 bards 37 P. police power by Okl.Cr. reasonable exercise recognized that previously See, (1927), we Legislature. Jefferson, supra, where intrinsically offense to be distin rejected that a court the contention guishable quality rejecting conten mandating capital punishment upon statute provided punishment tion then prison killing a conviction of a inmate for therefor constituted cruel and unusual Motion was that defendant Williams as- punishment as sumed responsibility crime, follows: sole for the contrary to his sworn testimony at in cam- firearms, “. [RJobbery where era proceedings before the trial court and person sought resistance of the to be itself, the trial as well as his unsworn may expected robbed be to result prior confession and a statement wherein bodily injury
death or at serious inculpated he defendant alone. crime, engaged hands of the one such Justus is of so serious a nature and conse- As set forth in paragraph two quence say, a matter that we cannot Syllabus Williams v. law, punishment fixed Okl.Cr. 220 P.2d this Court unusual, statute it within makes cruel or has repeatedly held: meaning the Constitution.
“A new trial should not granted upon ground newly discovered evidence 2.12, B, 22 Pursuant to Rule subd. O.S. where the same is merely It cumulative. Supp.1974, subsequent App., and Ch. appear that, must if newly discov- perfecting appeal defendant Justus ered evidence had been introduced in the filed New with this Court Motion for trial, there is a probability reasonable Trial based newly discovered evidence. that a different result would have been predicated upon That Motion was an affi- *31 reached.” purportedly by davit executed his co-de- Williams, In fendant, Bobby State, 461, the Wells v. wherein 16 Okl.Cr. 184 P. Joe guilt subject latter admits offense 465 of the and (1919) State, Whitworth v. 80 perpetrated 239, but 364, further states that he the Okl.Cr. 158 P.2d reversed on oth- grounds crime er Assuming alone. that his co-defend- rehearing on 80 Okl.Cr. retrial, testify upon ant 159 would so a we are P.2d (1945), pre- this Court was viously presented testimony that such is cumu- with question under probabili- lative and there is similar no reasonable circumstances. In Wells we stated ty that a different that: result would follow
upon a new trial. “The defendant filed a motion for a new trial ground, among the other trial, joint At their introduced State grounds, evidence; newly discovered the confession of each of the above de- newly being discovered evidence con- fendants, and both confessions were in all in tained by affidavit made said A. respects mutually compatible essential and J. jail conviction, Seimen in while after his antagonistic not in- regard to the in fully which he refuted the evidence volvement of the other defendant. Both given case, by him on the trial of this the defendants took witness stand in alone, and asserted that he without the defense, their own and that the testified knowledge or assistance of the defend- confessions were under made duress ant, larceny charged committed the while were not their own statements. Defendant dance, at the and completely exonerated alibi, introduced the defense of Justus any complicity the defendant from there- testimony supported was therein manner, in any in and that he (affiant) any his wife. Defendant Williams denied had in not communicated the stated facts participation any in crime and knowl- defendant, said affidavit to the toor edge and, in thereof cross-examination one, until after the trial in this case had Justus, counsel for defendant fur- defense been The that it court announced had. previously impli- ther testified that he had did not said believe the averments of the cated his co-defendant under duress affidavit, for a overruled the motion knowledge he had no that defendant trial, excepted. new and the defendant had been involved in the offense. Justus presented by new matter thus n : n n n n >Jc Williams, of defendant having the case The confession trial of
“Seiman on the inculpated of, defendant knowledge or wherein he also no testified that had he Jus- tus, competent evidence as to the was not commission connection with the latter, instructed. certainly evidential and the was so charged, larceny no However, otherwise, de- newly even assuming said weight to the given could be evidence, would nevertheless not the averments of fendant discovered Justus to a trial as a matter of law he committed entitled new his affidavit ‘that alone clearly suf- without since there was other evidence charged, did so crime support knowledge Ryal the de- ficient to the verdict. or assistance of State, fendant,’ we not err 16 Okl.Cr. P. 253 and the court did held that: overruling the motion for a new trial.” 466-467) (184 P. An affidavit of a material “. . . Further, Syllabus in the and decision perjured he witness for the state that Whitworth, that: we stated defendant, trial of the himself right made “A for new trial was not a matter motion [does] evidence, trial; newly new but grounds discovered entitle a defendant of defend- same matter of dis- supported by granting affidavit is a court, court, and was a co-defendant of the trial (who ant’s brother cretion record, serving should and was under such state of the and had been convicted court, in penitentiary), grant new trial unless sentence discretion, de- another committed exercise of its sound affiant and was not wit- defendant termines the recantation of the crime and that ” thereof, . present knowledge probably true. had no ness at the having previously testified affiant see, 87 Okl.Cr. Also Tobler v. part he trial defendant that had no (1948). 194P.2d crime; Held: commission entitle the showing does not such *32 the verdict of the view of matter of to a trial as a defendant new presented, per and we the evidence are right, sound calls into exercise the but of suaded that defendant Williams’ version court, such motion discretion of the and full first gamut. has run a He matter trial unless the court should be overruled gave implicating a statement defendant probably that recantation is believes such alone, gave a he next confession Justus true, might that trial result and another compatible mutually with that of defendant acquittal in the of the defendant. Justus, deny trial he then testified at the new trials practice granting “The offense, ing any subject knowledge of the upon persons who have affidavits finally, and that he was he now asserts change then their been and convicted responsible are solely for the crime. We testimony, they that had admitting com- present opinion affidavit of that the upon with perjury, mitted is not looked essentially cumula defendant Williams by favor the courts. testimony pre exculpatory tive he to the ****** viously defendant extended to Justus latter, proof by the alibi offered setting danger- a “. .It would be . testimony con of defendant Williams permit precedent ous a defendant present would be with his affidavit sistent commit go upon the witness stand and impeachable prior inconsist innocence, so far with his perjury by testifying to his of the evidence ent statements that view codefendant, then and that of his previously presented is no reasonable there admit- when make an affidavit convicted result probability a different would (158 ting perjury, . . .” P.2d his Accordingly, Au- follow retrial. 368) 364 and 1, 1975, THE gust unanimous deci- I get this Court COURT: will to that in a overruling the afore- sion an order . issued moment. for New Trial.
said Motion I a you ago, As told moment ladies and Court, gentlemen, this type in this Pursuant Rule 1.11 of case there is only punishment App., this case one O.S.Supp.1974, Ch. under the laws of the arg previously for State assigned and heard oral of Oklahoma for murder in the first carefully degree, reviewed We have now is that the Defendant or De- ument. Court, and fendants before this shall suffer entire record death. And would it argument your be duty, you if thoroughly considered found them guilty be- yond authority presented law, determined a and have reasonable doubt under the law the punishment record is free of error of case to assess any in the case, requiring judgment being punishment. and sen reversal. there one af accordingly, tence each defendant is
Ch. firmed. Pursuant 18, App., to Rule the defendant 1.18, O.S.Supp.1974, is advised that derstand the nature of the case that is on THE [******] COURT: Mrs. Angel, do you un- herein Rehearing Petition for must Jury today trial before ? filed with the of this Court within Clerk MRS. ANGEL: Yes. days which (15) fifteen the date you THE COURT: Do understand what is filed therein. I you punishment have told about the for degree first murder is of this laws
BRETT, BLISS, J., J., P. concur. state ? MRS. ANGEL: Yes. APPENDIX THE Angel, COURT: in a case Mrs. Dire Examination Selected Voir warrants, where the law and the evidence case, proper you doing a could “THE COURT: . This is without conscience, case, penalty your violence to degree agree first murder and the ver- imposing dict degree - the death ? first murder under laws any person Oklahoma is that No, MRS. ANGEL: sir. who, if first convicted of murder THE COURT: You couldn’t? degree, shall suffer death. MRS. No. ANGEL: try you may There are crimes that challenge MR. HARRIS: We the Juror up reign here where is a there Juror *33 for cause. punishment, but in de- murder in the first THE has COURT: been chal- gree, the laws of this state that it the is is Juror lenged says for cause. What Leather- Mr. penalty. death . . burden of . [T]he man first? proof the State of Oklahoma to prove guilty beyond a Defendant a reason- MR. I think LEATHERMAN: don’t able proves your doubt. If the to State cause, that is Your Honor. beyond satisfaction a that reasonable doubt THE I’ll ask the one COURT: Juror the guilty Defendants are of murder in the question. you other it Angel, I take Mrs. degree, your duty first it would be to find penalty? about the death have reservation the guilty Defendants of murder the MRS. Yes. ANGEL: first degree. you Would each that do THE COURT: Personal reservations? your duty as sworn ? Jurors anyone not, up
If please who would hold MRS. Personal reservations ANGEL: your ? only. hand very
MRS. ANGEL: That apply would THE Please listen to me COURT: capital punishment, closely, wouldn’t it ? the your are about reservations is,
type and it is a case where of case it are murder in charged the Defendants with regardless of penalty such that death ? degree first facts, law, and the circumstances Yes. HALL: MR. penal- death case, you could not inflict Hall, doubt ty beyond a reasonable Mr. let me ask you found THE if COURT: of them were (cid:127)you question; either I take it that the Defendants or that further degree? Do first guilty you personal of murder in the reservations other have you you asking ? I am penalty understand what about the death ? go have to Yes, I would
MRS. ANGEL: MR. HALL: sir. law, regardless of but along with your Are right. All THE COURT: law, say you ? did penalty such reservations about death understand, Well, you facts, law, THE COURT: and the regardless that prove the fails if the Angel, case, circumstances, Mrs. you could not a reasonable guilty beyond Defendants penalty you found be- inflict death if along doubt, your duty with the it would be yond the Defend- a reasonable doubt that the Defendant find other guilty of mur- ant or of them were either Jurors guilty. degree. der the first Right. ANGEL: MRS. MR. HALL: I could not. proved if the State COURT: But THE right. All THE COURT: the other members your satisfaction and him challenge MR. for HARRIS: We that beyond reasonable doubt Jury cause, Your Honor. or either or Defendants the Defendant THE COURT: Mr. Leatherman? de- the first guilty murder them are Object. MR. LEATHERMAN: provides only state gree, law the. Object. MRS. ASKINS: And so punishment, is death. one Object, MR. Your Honor. is, irrespective of asking you I am what JORDAN: law, and circumstances Hall, are facts you right, All THE Mr. COURT: case, your your about reservations cause, may you step will be for excused penalty the death such feelings about down, Exceptions will be allowed both sir. case, are facts of irrespective of the ruling of the Court.” Defendants you
you not vote saying could [Tr. 26] ? of death say- I No, think am I ANGEL: MRS. Angel, . Mrs. HARRIS: “MR. difficult, go I but would ing it would you just penalty, don’t believe in the death doubt. beyond if a reasonable ahead you? do impose you could THE Then COURT: just I find it hard to MRS. ANGEL: You be such? you it if found the facts penalty. sorry. believe in the death I am could that ? do opinion, opin- personal You it is an know Yes, my if conscience MRS. ANGEL: duty, comply ion. I I would Jury.
would have to if served on this I for stand the nature THE COURT: THE cause at this time. # COURT: Mr. [*] [*] *34 I won’t excuse this case [Tr. Hall, [*] 15-22] ? do [*] you under- Juror [*] that a death charged an Court MR. HARRIS: armed has robbery. told penalty you, murder Oklahoma Statutes In other offense.” these Defendants while words, as the committing make were MR. HALL: Ido. THE explanation COURT: I have made about what And do you understand case, MR. HARRIS: [*] you could [*] put [*] aside all Now, that [*] your [*] being the personal [*] guilty
ants are first of murder de- death, gree, punishment for it you death if beliefs about you understand that? beyond two found a reasonable doubt these MRS. Yes. ANGEL: engaged in committed murder men while robbery, you find them you an armed could THE And if found them COURT: murder, assess guilty degree of first guilty you, as Mr. Harris has asked would penalty, you not? you the death death could you pen- vote could for the death alty ? revert going I am to to MRS. ANGEL: sure,
my say first answer I am not very I find it MRS. ANGEL: would capable hard, No, and I don’t I be think would I will be I don’t believe honest. fair, serving Jury. I on the I want to be I could.
really my get I do. don’t want to out of you THE You don’t believe COURT: duty, but I I don’t believe could. could. you MR. You don’t think HARRIS: No, I MRS. ANGEL: I don’t believe Jury, on could serve this don’t want to you being completely could. I am honest. case, on Jury feeling type serve this You have answered me THE COURT: you? do [sic] two and Mr. Harris three different sorry. I am MRS. ANGEL: ways. MR. : be ex- HARRIS We ask the Juror know, trying I I am to MRS. ANGEL: cause, cused for Your Honor. myself. assess object
MR. LEATHERMAN: I to it. you THE I to think COURT: want express your object you about want to true on the it. I MRS. We ASKINS: matter. question, form and honest convictions about this on form Your proper question. Honor. voir dire my- trying I ask MRS. ANGEL: am to Attorney attempts The District his to draw such, I self whether will be able to do - - - own to, I am not sure be so I I would able do, think I thing I fair to Angel, THE COURT: if under- for me Mrs. Harris, perhaps able your won’t be to all you stand answer to Mr. don’t conscience penalty. vote for the death believe, proved your if the satis- beyond faction reasonable doubt Irrespective THE COURT: engaged while an armed Defendants rob- lady cause, facts? I’ll excuse the for degree, bery, committed murder in the first Defendants, Defendants, given both will be you penalty; could not vote the death exception ruling. is that correct? ASKIN: Defendant Williams MRS. I MRS. ANGEL: would vote the death objects. penalty, it upset but would me. You said your I have my conscience, would it THE COURT: noted do violence to I would, exception objection, you an given think it trying I am fair. ruling.” [Tr. 37-40] you THE COURT: But if found particular facts to be such in this case? OPINION ON REHEARING
MRS. I ANGEL: would. I would feel my duty, to, it I would have if I were on BUSSEY, Judge: Jury, yes, I would. Upon appel- petition rehearing, THE COURT: You part understand if erred you lants contend that find, up should you Juror, previously as a I in the decision rendered herein am not you find, suggesting September 17, what but regarding con- *35 you should find stitutionality O.S.Supp.1974, as these Defend- 701.5 21 §§ Juror 592 by understandably quandary in a to to fail- as Appellants assert how
and 701.6.1 comply the in- at to with Furman. Rather than ing- give and effect to ascertain tempting clearly guide to ex- establish or Legislature standards tention of the imposition penal lines for the interpretation of the death pressed in our those statutes ty very under the requirements uncertain Legislative the intent and was defeated Furman, Legislature adopted statu- in rules of accord with fundamental approach holding diligent in a tory Conceiving effort to assure our construction. compliance being with that stat upon statutes decision. Our to have turned those upon appellate purport utes to vague regarding the review con fatally and uncertain modify fer authority this Court the to evidentiary hearing contem- conduct of the imprisonment a death sentence to plated argue that life when therein, appellants is hearing discriminatory dispro sentence or procedural implementation of that portionate. in readily accomplished decision Furman could within upon discriminatory turned dispropor making authority rule This and Court. imposition tionate penalty of the death un interpretation basis for misconstrues the mercy der statutes constitutionality then existence. our Our regarding decision upon appellate statutes review were there justifiably of those demon- statutes but directly fore aimed at the crux of that de strates the for clarification need retaining aspect cision. Even prior opinion. of our other states proce some discretion in sentencing many Unlike other states which dure, quite provisions upon appel similar sought to discretion in the sen retain some adopted late review have been in an effort process,2 tencing Legislature the Oklahoma comply See, Coley, with Furman. necessary pursued approach the extreme Rice, People ex rel. infra. are there We curb the unbridled condemned in discretion persuaded Legisla fore that the Oklahoma and eliminated that discretion Furman,3 adopted appellate ture these statutes degree for the of first murder crime an effort of the death sentence in review mandatory upon making penalty the death protect to insulate or an otherwise manda Legisla conviction for that offense. The against capital punishment tory scheme of employ capital ture desired to a scheme of sys any might deficiencies that enter punishment First in the enforcement of tem constitutional and result further Degree undoubtedly Murder but was substantially disproportionate 701.6, O.S.Supp.1974, of death is 21 1. Title 701.5 §§ cases, imposed penalty in similar con- respectively, are as follows: sidering Appeals the crime and the defendant.” both when re- Court of Criminal “The viewing the sen- judgment determine that the Court “Should of death and sentence discriminatory shall, or sub- instance, tence death in the first determine wheth- stantially disproportionate require occurring to the law at er errors of trial cases, considering imposed both modification, in similar but if the Court reversal defendant, the Court and the the crime are determine that there no errors of shall modify life requiring of death to sentence shall reversal or law modification, the record penitentiary hard labor.” at in the convene the Court shall then purpose reviewing sentence for the Comment, Con Discretion 2. See: a date cer- of death. The Court shall set Penalty stitutionality Stat purpose Death evidentiary hearing, the New tain for (1974) ; utes, v. Harv.L.Rev. 1690 87 if the sen- of which will be determine (1973) ; Fla., Dixon, Jurek v. comports 1 principles So.2d tence of death ; (Tex.Cr.App.1975) process equal protection S.W.2d of due Rice, People and, Coley, infra; infra. ex rel. Upon hearing shall the Court law. of death whether the sentence determine Georgia, See, Furman v. cases of 3. consolidated based on discrimination was race, result of Texas, Georgia, v. posi- Branch condition, Jackson creed, social economic L.Ed.2d 346 92 S.Ct. tion, 408 U.S. defendant or sex of the class or reference cited arbitrary fact; hereinafter shall and the Court other case. specifically lead sentence determine whether *36 this cases wherein only to those these Reference intend that challenge, and did murder con- previously affirmed the provi Court mercy operate as statutes should to the death sentence viction but modified had Legislature of the the intent sions. If imprisonment the same ef- they life would have that otherwise, persuaded we are been authority fect since we there exercised specific conditions prescribed would have disposition light in of other cases states which just as other to be considered prosecuted mercy under statute. We dis retain controlled have endeavored to comparison cas- certainly could no to make cretion, general these adopting rather than subsequent prior but es to Furman the ultimate in terms of provisions couched present life statute since enactment of our How which Furman was directed. evil at punish- imprisonment only then the was in ever, further we are of the enactment of ment for murder. With the misconceived Legislature this endeavor the penalty is legislation, our current the death appellate necessity of propriety and mandatory selected cate- now otherwise for upon under a such criteria modification as cases gories of homicide. Insofar aris- punishment. capital mandatory scheme of comparable ing a of enforce- under scheme Legislature resolved to As the ment, “similar we are therefore without for punishment mandate but one otherwise upon compari- cases” which to base a valid murder, appellate modification degree first provisions Although quite son. similar upon vague and indefinite criteria upon appellate upheld in review were Col- ... is substan “the sentence of death State, ey v. Ga. S.E.2d im tially penalty disproportionate to the People seemingly valid in held posed cases, both the considering in similar Rice, infra, dis- ex rel. these cases are defendant,” tanta would crime and the legislation tinguishable since the involved exercising unguided mount to this Court in the sen- therein such discretion retained previously discretion extended sentencing process arguably tencing that there would mercy court under the to the or trial a be similar cases which to formulate See, Peo in statutes condemned Furman. comparison. Rice, by Any attempt ple ex rel. infra. Moreover, any attempt this Legislative intent Court to delineate guidelines standards or to delineate criteria would be from this uncertain be in foregoing criteria would under the legislation and equivalent to substantive have been we deem to with what consistent authority. making Un not within our rule in Legislature en purpose actual hopelessly left in der criteria we are we have provisions. acting these Since meaning doubt as to of “similar cases.” adopted were that these statutes illustrate, concluded speculate To we are first left to for an insulating protective measures as phrase encompasses whether capital mandatory scheme of otherwise only murder convictions or extends so far oper not intended punishment and were as to include which all homicide cases disproportionate provisions, convictions, mercy ate might have resulted murder by discrimination sentencing not caused language and whether this embraces was when the evidence appealed only occur would cases to this Court or all cases As the verdict. sustain prosecuted in the trial insufficient courts below. Fur de first ther, for now but one comparison we there is could not draw a appropriate gree murder in this preceding prior cases Furman under our is whether convic mercy inquiry for this Court punishment statute since the with the cases consistent imposed those cases tion such under the same insufficient the evidence discretionary sentencing law. statute held un Where degree mur first compar constitutional sustain a conviction Furman. Such sup to otherwise simply clearly ison sufficient perpetuate very would der but dis of- included upon a lesser port crimination found to exist that decision. conviction *37 594 against lawfully to the Furman others judgment demned
fense,
the
of
modification
cap-
degree
in
of first
the
convicted
murder since
punishment for
statutory range of
punishment
mandatory
ital
is otherwise
for
appropriate
be
would
an
offense
cluded
any par-
au
that offense in this State.
If in
general
the more
under
consideration
discriminatorily
case an
is
by the
ticular
accused
thority
upon
Court
conferred
murder,
charged
degree
with first
a differ-
O.S.1971,
In such
1066.
provisions of 22
§
presented
re-
ent situation
be
since
is
would
necessity
the
for modification
case
a
prosecution
that
versal
for
further
than
as
of
rather
presented
a matter
law
operate
remedy,
charge would
as a
by
discretionary determination
a mere
as
however,
life
might
neither
to
observed, this
modification
previously
this Court. As
imprisonment
depending
cure the error
authority to
is
without
Court
otherwise
upon the
the
pun
nature of
discrimination.
modify
the minimum
a sentence below
re-
such a case would
to be
statutory provi
Since
have
by the
ishment established
upon
particular
in
solved
basis of the
particular crime
the
governing the
sions
opinion
See,
presented,
facts
are of
that
State, Okl.Cr., 516
we
the
volved.
v.
Griffith
State,
further
be de-
discussion thereof should
and
v.
(1973),
1348
Meeks
P.2d
Also,
appropriate
ferred to an
Okl.Cr.,
modi
case.
(1972).
ing
unless
are
one
dependent
have enacted
so connected
Legislature would not
pro-
another
to warrant the belief
provisions with the invalid
the valid
(cid:127)
passed
removed,
pro-
legislature
have
the re-
the invalid
would not
visions
if with
maining portions
indepen-
of the statute
removed the rest of the Act
visions
Consequently,
dent of
plain
fully operative as
these.
invalid
law.
*38
may
sections
not be severed.
provision
a
in an Act of
effect of
“The
imposition
The
penalty
of the death
un-
invalidity
any
Legislature
the
of
the
improper,
der this statute is
...”
sentence,
provision in the Act
clause or
portions,
readily
We are of the
that case is
remaining
shall not affect the
distinguishable, however,
that,
since
intent
presumption
omitting
the
is to create a
Legislature
obviously
of the
could
portions,
not be
the
the remain-
unconstitutional
implemented
provisions
with the invalid
re-
portions
ing
would have been enacted
response
Furman,
In
moved.
the Illi-
Legislature.”
the
Legislature clearly
nois
endeavored to re-
Waterfield,
see,
Also
State ex
Roth
rel.
v.
tain
sentencing process
discretion
the
and Ster-
“In
provi-
we hold
oper
invalid the
forcement and were not intended to
sion
pertain-
of the death
mercy provisions.
ate as
statute
would there
We
ing to the
three-judge
of a
fore
impaneling
Legislature
frustrate the intent of the
court,
provision
relating
by holding
aspects
to the exer-
the invalid
of these in
cise
‘compelling
mercy’
sulating provisions
reasons
inseparable
from
which
imposition
would obviate
remaining provisions. Additionally,
the death penalty
provision
and the
appellants
give
es-
contention of the
fails
tablishing
appellate
procedure
appropriate significance
review
to the intention
for one
provi-
sentenced to death.
Legislature
in the accom-
embodied
inflicts
punishment, and
changes the
pre-
clause,
severability
panying
law an-
punishment, than
Legis-
greater
sumption
therefrom
arising
crime, when committed.
nexed to the
provi-
the valid
have enacted
lature would
legal
that alters the
aspects
Every law
4th.
omitting the unconstitutional
sions
less,
evidence,
and receives
is
rules of
provisions. The conclusion
of the other
re-
different,
law
testimony, than the
would
Legislature
not evident
quired
commission
at the time of the
provisions
valid
enact the
have refused to
offense,
the of-
to convict
aspects
order
the unconstitutional
.”
removed,
fender.
and the Act
provisions
other
there-
are
fully operative. We
otherwise
law has been
post facto
Generally, an ex
proposition
opinion that this
fore of the
com-
passed
after
defined as
law
without merit.
offense,
in relation
which
mission of
our
Appellants further contend
consequences, alters
or its
the offense
appellate review
respect to
holding with
disadvantage.
*39
to his
situation of an accused
un-
death sentence
221,
of the
Missouri,
and modification
2
107
Kring v.
U.S.
See:
701.6,
O.S.Supp.1974,
21
701.5
der
443,
(1883);
re Med-
§§
In
the crime was
their
disadvantage
relation to the of
alone,
she
night while
was
the victim
consequences.
fense or
The cases cited
its
despite her
brutally
and killed
shot
by appellants
clearly
are
this basis
robbery.
In view
of resistance to
lack
distinguishable.
therefore conclude
We
jury,
we
therefore
verdict of the
are
provi
that our decision herein
persuaded
from our examination
*40
appellate
sions for
of the death sen
review
was killed incident
record that the victim
operate
post
tence did not
as an ex
facto
previously
plan to eliminate
to a
conceived
against
appellants
deny
law
nor
them
robbery.
her as a
The value
witness to
process
law,
due
proposi
and
this
hold
appellants placed upon
the life of Ms.
tion to be without merit.
Kennedy
by
is
reference to the
illustrated
appellant
regard
In this
robbery grossed
them about
fact
Justus
argues
ap
also
that our decision
cigarettes and
and
two cartons
$32.00
pellate
deprived
provisions
him of
review
disposal
gun costing
necessitated the
of a
opportunity
that the death
to establish
Appellant
prior
admitted
Williams
$30.00.
discriminatory
dispropor
sentence was
or
felony
and a
convictions for embezzlement
Subsequent
tionate.
to the issuance of our
violation,
appellant
federal auto theft
and
opinion herein,
evidentiary
interim
felony
prior
admitted
convictions
Justice
hearing contemplated by
these statutes
degree
attempted
for second
forgery
hearing
nearly
set for
Further,
with notice of
one
larceny.
auto
in Justus v.
prior
day
month. Not until the
to that
Okl.Cr.,
this
upon newly evidence discovered appro- seeking any appellants
clude from are relief. We
priate post conviction conten- that this
therefore of the propositions
tion is Other untenable. first appellant were by raised Justus fully
presented original brief and in his previous decision.
considered in our reasons, foregoing
For above and herein previously rendered decision reaf- staying ex-
firmed, the order of this pending appeal is set
ecution of sentence
aside, there- of this Court is Clerk
fore mandate forthwith. directed to issue ex- originally appointed date passed having appellants
ecution of the ordered, appeal,
pending this it is further
adjudged judgment that each decreed appealed out sentence from carried appellants, Bob- the electrocution Clayburn Allen Williams and Joe Jus- tus, by the the State Peniten- Warden of McAlester, Oklahoma, Monday,
tiary at
February 1976.
BRETT, BLISS, J., J.,P. concur. *41 JUSTUS, Clayburn Appellant,
Allen Appellee. Oklahoma, STATE
No. F-74-713. Appeals of
Court of Criminal Oklahoma.
Sept. 17, 1975.
Rehearing
Nov.
Denied
1975.
notes
emphasis added)
ble,
it is
shown
if
otherwise
volun-
See,
1017,
Annotation 2
supplemented
ALR
coercion,
tary
given
without
fear
at
principle