Wilson v. State

1240 subsequent judicial process not overturn a render a a vio-

This Court will prohibition if for of evidence it deter lation of the Fifth Amendment lack conviction v. find United States against jeopardy. rational trier of fact could double mines that a Salazar, 72, charged (10th Cir.1974); crime elements of the 505 F.2d 75 the essential Spuehler Hedges, 188,190 doubt. United States v. beyond a reasonable 458 F.2d State, (Okla.Crim. 202, (10th Cir.1972); 203-04 Hutchinson v. United 709 would have us over States, App.1985). Appellant 930, Cir.1972). (10th 450 F.2d pathologist turn his conviction because light of caselaw both this Court and many could not determine how blows the courts, appellant’s assignment the federal suffered, angle or the from victim had of error is without merit. were delivered. He claims which blows Appellant improper last claims that com discrepancy, this combined with his jury ments inflamed the opposed eye one two witnesses as deprived appellant of a fair Nei trial. witness for the warrants a reversal. ther of the comments cites was jury’s province to assess It is within trial; therefore, objected to at the time of If weight to be to the evidence. he has waived them for consideration there is could which appeal in the absence of fundamental error. guilty, conclude that a defendant this (Okla. Myers v. 623 P.2d verdict, Court will not interfere with that Crim.App.1981). The two isolated com sharp even if conflicts in the evidence exist. appellant complains ments of which do not (Okla. Renfro rise to this level. Crim.App.1980). assignment error This Therefore, appellant’s AF- conviction is is therefore meritless. FIRMED. next claims that trial failing grant court erred a dismissal PARKS, JJ„ BUSSEY and concur. jeopardy grounds. on double Prison au appellant’s days thorities revoked placed discipli

earned credit and him in a nary days. unit for 15

Appellant acknowledges that this Court has held that administrative sanctions in judicial punishment

addition to does not jeopardy, constitute double at least for the WILSON, Jackson, Robert Robert a/k/a Nelson v. escape. crime of James, Rick Robert a/k/a a/k/a Ex Parte (Okla.Crim.App.1977); James, Appellant, Kirk, 96 Okl.Crim. 252 P.2d 1032 (1953). However, urges he us to reconsider position. reasoning our We find the to be Oklahoma, Appellee. The STATE of for escape.

valid murder as well as No. 519. offense, legisla- At the time of the Appeals Court of Criminal of Oklahoma. given prison ture had administrators power punish discipli- the violation of May See nary O.S.Supp.1983, rules. 510(8). This administrative action exists

separate power from the of a court impose criminal sanctions for murder. O.S.Supp.1982, 701.7, O.S.Supp. Circuit, 701.10. The Tenth very problem,

faced with repeated- has ly held that the forfeiture of earned credits

by penal pursuant authorities to statute is punishment

an administrative and does not Appellate Public De- Autry, Asst.

David fender, Norman, appellant. for Gen., Turpén, Atty. jewelry C. M. Caro- Michael cases. It was then that Don Emerson, Gen., Atty. coming Asst. Thomas park- line Oklahoma was seen across the ing appellee. lot to City, the store. When saw

Thomas, Bynum he shoved Ms. towards the Shortly storeroom. after she entered the OPINION storeroom, she and the others heard two BRETT, Presiding Judge: gun Bynum shots. Harris told Ms. to lie Appellant, Wilson, Robert a/k/a Robert taped on the up. floor and he her Wilson Wilson, Jackson, James a/k/a Robert then came forcibly pull back and tried to James, James, a/k/a Rick front; a/k/a Robert Bynum Ms. when she resist- ed, was convicted of Murder in the First De- Ms. Garrett volunteered. Ms. Garrett gree Court, in County Comanche District saw Thomas’ body lying up inert face cov- Case No. CRF-84-128. ered with blood near the back of the show- 701.7. found two room. “knowingly circumstances which were: he Appellant purses, rifled the womens’ af- great created a risk of death to more than filling ter pillowcase a with the contents of person”, probability one and the that in the jewelry cases. Wilson then instructed future he “would commit criminal acts of hostages stay put any and not make violence that continuing would constitute a noise for later, five minutes. A short time society.” threat young shoppers two women found Thomas’ 701.12(2), (7). He was sentenced to body and police. called the death, appeals. and he p.m. Around 4:00 Wilson and Harris p.m. 13,1984, At appellant 2:30 on March up again showed Garland’s; at Jeanette Floyd and Harris Catalog robbed Brittains they she said pillowcase had a with some- Showroom, which is shopping located a it; thing they straight through went center in Lawton. was armed house to the bedroom and closed the door. with a pistol semi-automatic .25 caliber later, A short time Ms. Boynes Garland and Harris had a knife. Wilson and Harris went into they the bedroom where saw a first came to the store mid-morning; at lot of jewelry new tags sales still after an browsing, they hour of left about spread attached out on the bed. Wilson 11:45 a.m. and went to the home of two gave and Harris the women some of the friends, women Jeanette Garland and Cel- jewelry and Boynes Wilson told Ms. he had Boynes este they where drank half-pint shot a man once the stomach and once in liquor planned robbery. it; the head. Harris confirmed and it was When Wilson and Harris returned to the then that Harris left in his car. store, they pretended to shopping, be since put personal Wilson some of belong- his there were other customers in the store. ings gun and the Boynes’ the trunk of Garrett, clerk, Sheila remembering the car and asked her to him drive to some morning, men from the called downtown to places in stops town. One of the aat manager, Thomas, the area Don and asked friend’s Phyllis house the name of Con- help that sent out. She wrote down erly where Wilson showed her some of the tag number; their they car driving were jewelry robbery. taken in the Conerly Ms. pink Lincoln Continental. After half an asked got Wilson where he it and he told hour, only one of the customers and her her he robbery had been in on a at Brit- year two daughter old were left in the gave tain’s. He her jewelry some of the store. It Wilson, was then that threaten- tags Later, with the still attached. in a ing pistol, with the keys demanded the story husband, he Conerly’s related to Ms. jewelry cases; quite he visibly part he described his robbery in the agitated and against tripping warned shooting part as actually Harris had alarms. played. picking up After Wilson at the Appellant took Bynum, Patti Garland, one of the Conerly’s, daugh- Ms. young her clerks, to the ter, front of the store to unlock Boynes and Ms. drove Wilson to Okla- Appellant emphasizes Police. In that even City the Lawton homa to evade though stopped at a T.G. & the Lawton Police had obtained an City, Wilson Oklahoma bought warrant, Boynes’ help they Ms. and with arrest knew Y. store dropped goods then weap of bullets. women had the stolen and the murder a box City. City him at a motel Northeast Oklahoma him motel in on on at the Oklahoma they get still did not a search warrant. At Lawton, the women returned to When glance appear it would the Lawton they police found several cars their get Police’s failure to a search warrant Boynes accompa- Ultimately, house. Ms. they they before left Lawton is evidence City police back to Oklahoma nied intended to conduct a warrantless search of staying. show them where Wilson was It facts, jurisdictional the motel. The how by this time. The was about 3:00 a.m. ever, are such that a lawful search war Police, an arrest Lawton armed with war- rant, if proved necessary, one could not rant, City Police for asked the Oklahoma County been have issued Comanche manager gave po- backup. The motel since Comanche and Oklahoma counties are pass they room and key lice a to Wilson’s in judicial not the same district. See Cun key to enter the room unan- used the State, 337, (Okl. ningham 600 P.2d 339 nounced, they appellant found where Cr.1979). County Magis The Comanche asleep on the bed. The arrest was une- jurisdiction trate did not have to issue a jewelry ventful. Some of the stolen was in search warrant to be served Oklahoma tagged lying plain still and was about in County. nothing per We find sinister se in view, bag. although the bulk of it was in a get prior the failure to search warrant gun was also found in the room in the Likewise, serving the arrest warrant. we pocket pants, lying of Wilson’s which were attorney’s find no error in the trial failure on the floor next to the bed. object at trial to the introduction of the Although repeatedly of his advised items seized in the warrantless search. rights, appellant made numerous incrimina- question in The seizure of the items was ting on statements the drive to Lawton. regular by virtue of the criteria of the Shortly after arrival at the Lawton Police “plain exception in view” search warrant Station, signed rights Wilson a formal requirements. Smith v. 698 P.2d waiver; gave he then a formal written 482, (Okl.Cr.1985). regarding robbery statement and mur- addition, der. In Wilson claimed he com- Appellant claims that the of box mitted 15 or more armed in the robberies found on him he ammunition was January Lawton area between 25 and apprehended should not have been admit 9, March 1984. prove ted because it was not relevant to any of the elements of the crime. The The trial consisted of the State introduc- purchased bullets were several hours after ing the evidence nineteen of witnesses Appellant of the commission the offense. experts, present which consisted of victims expose prejudicial claims it was error to robbery policemen at the in involved jury to this evidence. See Appellant’s attorney the arrest. did not 2104, Although appellant 2402. is cor opening §§ put make an statement or rect that this evidence in was irrelevant stage. evidence in the first It took the trial, guilt stage of it was harmless eighteen only minutes to return their ver- light strong in of error guilty. dict of guilt. Raymond See In addition to a claim of ineffective as- (Okl.Cr.1986). counsel, appellant only sistance of claims regard testimony five errors in to the fairness of the claims the guilt phase objects of the trial. He Boynes that Celeste Garland and Jeanette evidence, admitted, cautionary certain which was should have instruction had a unlawfully They appar seized and that certain other because informers. they were advantage ently gained police evidence which was admitted was not mate- from the an prejudicial. cooperation testimony. rial and was their objections In final to the first Appellant concedes such an OUJI-CR he of the trial takes issue with cer- requested; not but instruction was by give tain of the remarks made duty to it sua court had a claims the closing argument. Since none of the State, 485 P.2d sponte. Smith objection comments were met with we have in- that an (Okl.Cr.1971). He also claims trial, reviewed them for fundamental error struction, although requested at not affected, find the verdict and do not establishing have been should overwhelming particularly light accomplices and Boynes as and Garland appellant’s guilt. evidence of Banks v. testimony had to be specifying that their (Okl.Cr.1985). corroborated. Finally, appellant as- claims ineffective give cautionary instruc- The failure to do not find coun- sistance of counsel. We discretionary than it is tion is more often representation sel’s was defective as mea- case, circum- In this fundamental. sured the test set out Strickland v. testimony question were stances and the Washington, 466 U.S. S.Ct. give a not so extreme that the failure to (1984). jury’s 80 L.Ed.2d 674 verdict instruction, cautionary resulted an abuse guilty is affirmed. judicial discretion as it was the case by appellant. cited Id. at 773. Gee v. Appellant’s objection (Okl.Cr.1975), of the trial is a claim that the mandatory refused to make it Court provisions failed to follow the notice State cautionary accompany instruction an that provides “[o]nly of the statute which testimony. We find no funda- informant’s aggravation such evidence in as the state from the failure of mental error occurred prior made to has known defendant attorney request to such an instruction O.S.1981, 21 his trial shall be admissible.” give nor from the failure of the court to given appellant 701.10. The notice § one, sponte. testimony The of these sua was a Bill of Particulars that recited verba cumulative; merely was it two witnesses statutory language ag tim the of the two given superfluous would to have have been gravating pur circumstances that would be such an instruction. sued and a bare list of names and address es of witnesses. 21 701.12. Boynes To as ac label Garland statutory require In addition to the notice tenuous; however, complices is will we as ments, appellant filed a motion a month sume, arguendo, they that were accom asking before trial the court to order plices though there is no even State disclose the names of witnesses Boynes present either or Garland were designate in that would be called and to plans when the were made or when the stage they testify. which asked to would be crimes executed. were See State v. Trues Although granted, this motion was dell, (Okl.Cr.1980). pri 620 P.2d 427 The only partially complied. State mary testimony value of their was to trace argues prosecutor’s Wilson’s activities after the crime. The The dissent that the robbery testimony provided ample victim’s notice of witnesses to be called “... as a repetitive and somewhat in the cases in chief or in the evidence Wil witness guilt. Considering son’s of the trial” was sufficient corroboration unquestiona heading clearly that was at trial and the the wit- indicate when guilt appellant testify. ble it fail list contained was not error to nesses would The give twenty-six clearly an instruction on for the first corroboration. witnesses State, trial, v. 261 cited the “Second See Plummer but (Okl.Cr.1973). testimony Stage The of an acces of Trial” listed three witnesses. sory specifically does not have to be corroborated and The trial stated court’s order Boynes “separately is a closer state characterization that the list should Spees Garland’s role. See 735 whether these witnesses will be called (Okl.Cr.1987); during pun- P.2d Edmondson v. the State’s case chief or (Okl.Cr.1975). added). phase.” (emphasis The no- ishment would have to evidence a defendant did not able provided tice against. defend Appel- order. the trial court’s comply with list should have been objection to the lant’s required to defend appellant sustained. penalty with an incom- against the death pre- and without a plete list of witnesses Police de- Lawton The State called two present- would be cis of the evidence that had listed them stages but both tectives through who would be the witnesses ed implying stage list that only on the first called. stage. in the second they used would not be appel- evidence of provided These the first time this Court has officers This is not dangerousness. with this issue. Walker for future potential lant’s dealt cert. de appellant (Okl.Cr.1986), with officers had been P.2d One — U.S.-, nied, City 93 L.Ed. Lawton. 107 S.Ct. in the ride from Oklahoma 600, (1986), Wilson made we stated: to the threats 2d He testified going to do he was regarding what purpose prior of notice to trial is him in. The other offi- person who turned present the defendant time to allow to the statement alleged cer testified explanation or an defense interrogated in gave when he was criminal misconduct. Johnson Lawton. mitted in excess of 15 armed robberies admitted he had com- To enforce ^[815] policy, [ (Okl.Cr.1982) Legislature ]. crime list the officer was the unsolved ‘[o]nly that such evidence has mandated working area. The evidence in the Lawton aggravation has made as the State important these two officers prior to his trial to the defendant known case; merely cumula- it was not sentencing. State’s admissible’ at shall be offered; there- to the other evidence tive We have held 701.10. Const, fore, prejudicial error for the court statute, it was together with Okla. ‘[t]his appellant’s objection. The oth- to overrule II, defend- contemplates that a art. stage list were on the second er witnesses capital provided murder case be ant in a unadjudicated criminal of- the victims of summary intend- of the evidence by appellant. allegedly fenses committed alleged ed to testimony unquestionably bol- circumstances, Their the and a list of witnesses testimony that by stered the detective’s Green might call.’ 713 State committing those (Okl.Cr.1985) had admitted 1032, (emphasis Wilson 1038 P.2d added). crimes. rejected has heretofore these testi- The court The dissent states that one officer Green, grounds. In the hearing, claims on other extensively preliminary at the

fied object failure to was announced “that is also true that defense rule which is true. It notice, pretrial of either at a hear officer in his to lack counsel did interview one challenged ing the evidence office, provide that or at the time the statute does not but offered, in waiver of this requirements will result to meet the that is sufficient cert, denied, 1038; Id. right”. stage statutory of listing for each the witnesses — 241, U.S.-, 165 107 S.Ct. 93 L.Ed.2d already had authori- Defense counsel trial. (1986). Walker, we also held that the that had ty to interview the officers and communicated, specifically pertinent information was provision the to little to do with although verbally, sufficient and that was This issue is not what list the witnesses. needs. See satisfy process due of the avail- notice is available but which evidence 905, 1166, 234, Collegiate Dictionary, expressed Judge 478 Contrary in Bus- New to the views 1. (1977), pre dissent, provides following definitions: sey’s extension this statement is not an summary points, previously of essential interpretation cis: a concise statements, this Court has of the facts; O.S.1981, 701.10, summary: covering the given or 21 but an en § Title points succinctly; required concise: free all state is not main forcement of it. The detail; general: superfluous re description give of the evidence that elaboration a detailed to, by, statutory lating with determined or concerned to meet the will be offered in order limited details. required main elements rather than in section 701.10. Webster’s notice pellant objection We reasserted this 701 P.2d at 426. after also Banks require formal refused to previously first witness from the list testified. This have aggravating hearing the addition of overruled; objection was also the Court preliminary added after circumstances granted appellant continuing objection. State, hearing. Nuckols v. appellant’s objections find should have We denied, (Okl.Cr.1984), cert. 471 U.S. They timely been sustained. were both (1985). 85 L.Ed.2d 323 105 S.Ct. sufficiently specific preserve this case, however, in this is a lack The issue O.S.1981, error for review. § notice, sufficiency of and there notice not negligent in grossly his was no waiver. comply failure follow the law and problem This has arisen due to a lack of the court’s order. His error was com- as to specificity the statutes pounded by the trial court’s failure to sus- how a defendant should be advised of appellant’s objection tain and enforce its support evidence that will be offered orders. own aggravating alleged. circumstances stage This leaves the first evidence Ever mindful that we are a Court and not a the State’s case that there were legislative body, necessity we have to fill aggravating circumstances which when in the vacuum left in the statutes weighed against any mitigating circum area one case at a time as the issues are justify imposition stances would presented. See Stout penalty. death O.S.1981, provides Title 21 701.10 (Okl.Cr.1984), cert. denied part: 472 U.S. 105 S.Ct. 87 L.Ed.2d sentencing proceeding, ... In the evi- (1985). Since none of the evidence may presented any dence as to miti- stage prove offered at the gating circumstances or as to circumstances can be con aggravating circumstances enumerated assessing penalty, sidered the death it is Only ag- such evidence in in this act. surprising not there was insufficient gravation as the state has made known “beyond admissible evidence to find a rea prior to his trial shall defendant sonable doubt” that should be added). be admissible ... (emphasis aggra sentenced to death on either of the The failure to include the names of the vating circumstances. stage two on the list detectives of second 701.11. also claims that give witnesses is a total failure to notice. properly did not State offer the first Furthermore, 701.10. evidence for consideration the second failure to describe the evidence to be therefore, stage, there is no evidence of persons named on the second any aggravating circumstances. Consider list was error. See Johnson v. ing insufficiency of that (Okl.Cr.1982). P.2d These two er- circumstances, prove any aggravating it is rors are of State and Federal Constitution- properly moot the formalities were not proportions “legal al and are not so called observed. technicalities.” Accordingly, we find no error in the first trial, day On June the third of the the stage trial; appellant’s clearly it was guilty having verdict been read at the close proven appellant degree committed first 26th, day appellant on the filed a felony Appellant’s murder. conviction is asking motion with brief the Court to However, therefore affirmed. due to the aggravation strike all evidence of give required by failure notice as State’s to objecting, offered He State. 701.10, we find the death time, albeit for the first to the fail- State’s sentence for cannot stand and provide ure describing notice the evi- compelled modify this Court is his sen- prove aggravat- dence to be offered to ing apparently imprisonment. The tence to life circumstances. Court 701.13(E)(2). Ap- ap- overruled the off motion the record. We therefore AFFIRM during punishment in chief or to life case as MODIFIED conviction pellant’s trial, [appellant’s] if neces- phase of imprisonment. However, the record also dis- sary_” complied in fact closes that the BUSSEY, J., part, in concurs by filing a notice of wit- that order part. in dissents language The of that nesses to be called. PARKS, J., specially concurs. notice is as follows: BUSSEY, Judge, concurring in Oklahoma, now the State of Comes part/dissenting part: in herein, provides the follow- Plaintiff the State ing list of all witnesses which ap- as to agree I that the determination calling possi- or anticipates as a witness However, guilt must affirmed. pellant’s be using bly as a witness the cases is sentence of death I also believe that the stage the trial. chief or record, and would supported by the well any possible are rebutal Not included affirm. witnesses.” require- of the notification purpose added). (Emphasis O.S.1981, 701.10 is to elimi- in 21 ment proceeds list several The notice then surprise when the nate element witnesses, including the two officers whose v. Johnson sought. penalty death callenged. At the end of testimony is here (Okl.Cr.1982). long as So 665 P.2d persons would the notice is a list of who be prepare his de- is able to the defendant exclusively stage called as second witness- fense, assignment that notice was insuf- his es. v. ficient is without merit. Banks (Okl.Cr.1985). My 426-427 not direct that The trial court’s order did collegues stage this Court have chosen for the first should a list of witnesses modify the sentence in this case because prepared, and that a list of witnesses be ]complete provide prepared separately. the State failed the second be “[ Rather, precis required of the evi- that all list of witnesses it witnesses [or] through prosecutor state in presented would be endorsed and that the dence that called,” due to would be called. who would be or which each witness witnesses comply. provide a “concise There was no failure the State’s failure relied summary of the ‘evidence’ to be given, testimony As to the content agree that upon.” simply I cannot used question is not how the evidence witnesses, a failure to list the record shows defendant, wheth- but was disclosed presentation and cannot find that surprise. resulted in unfair er its admission in unfair by the State resulted Banks, Johnson, supra. supra; join Nor can I surprise to the defense. reflects, is nowhere controvert- record “precis language that there must be ed, counsel interviewed one that defense summary.” or a “concise of the evidence” office. The other testi- officer in his own have, general past in the Our cases preliminary hearing, dis- extensively at fied provide required that the State language, closing everything he testified to which intended to summary of the evidence “a testimony sentencing proceeding. The circum- alleged aggravating hearing by ques- elicited preliminary State, stances.” See Green counsel, prose- not the tions from defense (Okl.Cr.1985); Walker In the case of Walker cutor. (Okl.Cr.1986). I would (Okl.Cr.1986), al- we held that P.2d 273 require any requirement the to not extend though notice of evidence to be no written summary. general more than a aggravation was submitted as offered statute, by a conversation contemplated the does indeed con- The record this case prosecu- and the directing defense counsel judge between order of the trial tain an challenged informa- relayed the of Wit- tor which prosecutor to “Endorse Names the assignment meritless. the tion rendered separately state whether nesses and to So, too, in this assignment fail must the called in the State’s witnesses will be these Cr.1984). contained at clearly aware The instruction Defense counsel case. ought every could not have been to be modified OUJI-CR this evidence of capital sentencing proceeding. surprised. sufficiency of the Next, of question the Testimony amply supported at trial the aggravating cir- support the to evidence (1) there aggravating circumstances that creating great knowingly a cumstance probability that the defendant would was a person one must more than risk of death to criminal acts of violence that would commit correctly points addressed. continuing society, a threat constitute formally of- prosecutor never that the out (2) great appellant knowingly created a stage from the fered evidence person. The risk of death to more than one stage. Instruction in the second admission imposed of death was not under sentence language quoted the Which number passion, prejudice, influence of or the jury “you that informed the OUJI-CR Accordingly, arbitrary factor. the other only the evi- authorized to consider are ought I death sentence to be affirmed. presented open here in court dence received hold, respect- so and must therefore would during the and the defendant by the State fully dissent. proceeding.” sentencing phase of this However, necessary I to take feel it PARKS, Judge, specially concurring: my concern that opportunity express First, accurately not reflect I on the 442 does wish to comment OUJI-CR prosecutor’s comply the law in this State. with 21 O.S. failure 1981, 701.10, pertinent provides which Restricting jury’s of ev- consideration part: “Only aggravation such evidence that is received after the idence to which as the state has made known to the defend imposes require- guilty verdict is reached a prior ant to his trial shall be admissible.” or cases ment not contained the statutes together Section 701.10 is read When worthy It is of note that six in this State. II, Article Section 20 of Oklahoma Con eight aggravating circumstances list- of the stitution, that the has an it is clear State may require ed in 21 701.12 duty prior provide to trial to an affirmative circumstances of the murder itself be that (1) capital accused in case with a concise sentencing proceeding re- considered.1 The summary of the “evidence” to be relied separate quired by statute is not a new and upon support circum trial; rather, single it is but one of a (2) alleged, and a list of the wit stances sentencing jury If were not to be trial. nesses to be called at trial. See Walker v. presented during of the aware (Okla.Crim.App.1986), guilt stage, certainly then 701.10 Section — denied, U.S.-, 107 S.Ct. rt. jury not mandate that the same would ce (1986). Here, the Bill 93 L.Ed.2d stages. must be used in both To instruct by filed recited of Particulars State may it not consider first specific aggravating circumstanc again evidence unless once received after exist; alleged summary es no guilt stage completed defies common ag such appears “evidence” be used sense and flies in the face of what gravating given as re legislative circumstances was to be clear intent. It is also See, quired The concise sum contrary by Section 701.10. to decisions of this Court. (Okl. simply bymet mary requirement 627-628 cannot be Stout 1.21 circumstances which the facts of 4. The murder was risk of death to more than one 3. muneration 2. The defendant cious, ^[******] or person cruel; * * *; case in chief: 701.12 committed the murder for re- knowingly require especially provides a consideration of created a heinous, person; following great atro- officer. conviction of while or 8. The victim 6. The murder pose prosecution; The murder was committed serving ^[******] avoiding a sentence felony; was committed or preventing murder was a imprisonment a lawful arrest for the person peace pur- materiality challenge, accuracy or of aggravating circum- of which giving notice Id. See second evidence. during the sen- the State’s upon relied will be stances Const, XIV; Gardner, also U.S. giv- amend. Accordingly, the notice tencing stage. Const, II, supra; Okla. inadequate art. woefully in this case en appel- to vacate requires this Court and not tolerate cannot and will This Court of death. lant’s sentence games- of principles capital trials based page 8 tactics. manship by states at “trial ambush” opinion and majority traditionally due to rest- problem justice “has arisen has system notice of that the Our statutes as de- that adversarial specificity of on the foundation a lack ed should be ad component how a defendant of the truth- is an essential bate will be offered evidence that an ac- seeking process. of what It follows vised aggravating circumstances given attorney must be suffi- and his cused necessity” “of that this Court alleged” used of the evidence to be cient notice left in the statutes “fill in the vacuum death, must a State to obtain sentence is It case at a time....” area one in this and mean- the accused a reasonable allow any not state 701.10 does true that Section explain the deny or ingful opportunity its complying with period for specific time determinations against him. Such evidence except require that provisions, notice case-by- by this Court on a must be made “prior to .. .trial-” such notice be basis. case recog so, previously has the Court Even admissibility Second, regard to the constitutional purpose of our nized that support the death stage evidence to of first in the con provisions statutory notice majority’s position, contrary to the penalty, a defend capital case is “to afford text of a should be I believe or present a defense opportunity ‘to ant first formally introduce required to alleged criminal con explanation for the an during the sec- consideration for ” Walker, supra, at 285 (Quoting duct.’ State, Stout v. stage. ond (Okla. Johnson J., (Parks, (Okla.Crim.App.1984) 617, 629 Crim.App.1982)). Following discus- Concurring). Specially spe- opinion does not set a majority argument, during oral this issue sion of requirement, time limit on the notice cific in a hand- appellee conceded counsel prov- it is within the nor do I believe that “record does not response that the written We must ince of this Court to do so. incorporate a formal motion [first reflect however, require- recognize, that the notice announcement or an stage evidence] constitutional 701.10 has ment Section In by the trial court.” jury such to plurality implications insofar as Instruc- event, giving judge’s the trial Supreme Court has held that United States stage specifi- during tion No. process capital defendant is denied due considering cally precluded imposed, at the death sentence was “when assessing punish- stage evidence part, on the basis of information least ment: opportunity deny had no or which he DETERMI- AT YOUR IN ARRIVING Florida, 430 U.S. explain.” Gardner v. IS SENTENCE AS TO WHAT NATION 1197, 1207, 349, 363, 51 L.Ed.2d 97 S.Ct. LAW, THE UNDER APPROPRIATE executed, (1977). person “If a TO CONSID- AUTHORIZED YOU ARE of a decision based be as a result it should RE- THE EVIDENCE ER ONLY evidence —not as on reason and reliable COURT HERE IN OPEN CEIVED Estelle, result of ambush.” Gholson AND BY THE STATE PRESENTED (5th Cir.1982). my 675 F.2d THE DEFENDANT DURING THE bar, reliability of view, in the case at THIS PRO- PHASE OF SENTENCING impermissibly re- the death sentence CEEDING. pro- standards of due below minimal duced stage evi (O.R. 173) Accordingly, the first meaningful cess, of a of the denial because aggra support the used to cannot be or his coun- dence opportunity for the defendant no vating Because valid circumstances. argue, any way deny, explain, or sel to remain, it is not circumstances reweigh ag independently appropriate to mitigating circumstances.

gravating and (Okla. See Castro v. State, 742 Crim.App.1987); Stouffer (opinion (Okla.Crim.App.1987) P.2d 562 I concur rehearing). Accordingly, appellant’s sentence modification of the GRANTING ALTERNATIVE ORDER imprisonment. life death to PROHIBITION OR WRIT OF

MANDAMUS 10, 1988, Attorney May the District

On Oklahoma, County, appli- filed an for Tulsa seeking petition in this Court cation prohibi- issuance of the alternative writ of seeking is tion or mandamus. Petitioner prohibit Respondent Honorable interfering preliminary in the examination MOSS, Attorney, District Tulsa David No. Case CRF-88-1486. Petitioner, Oklahoma, County, Respondent acting The Honorable on defense counsel’s Motion to Conduct a Line-up Persons to Sit or Allow Additional The DISTRICT COURT OF TULSA Table, entered with Defendant Counsel COUNTY, Oklahoma, State of and the granting the motion and ordered a an order Jennings, Judge, District Honorable Joe entered an line-up be held. This Court Respondents. why Order to Show Cause the writ should No. F-88-360. 23, 1988, May granted. not On pre response copy filed with a Appeals of Court of Criminal Oklahoma. showing liminary examination until it was May continued. THEREFORE, considering NOW after application petition filed herein transcript response with the examination, preliminary this Court finds judge jurisdic- that the district did not have act; tion to until an accused is bound over pre- to stand trial at conclusion hearing, liminary jurisdiction remains magistrate. with the (Okl. In Hunt v. Cr.1988), this Court stated: Appellant acknowledges that there is no lineup. right pretrial to a formal judicial decision is one of discretion. Campbell (Okl.Cr.1982).

Therefore, hold, under the cir we case, clearly cumstances of this it is within magistrate concerning the discretion of the verify the matter in which he will the iden defendant. In the event he tification of the lineup required, it should be concludes a

Case Details

Case Name: Wilson v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: May 27, 1988

Citation: 756 P.2d 1240

Docket Number: 519

Court Abbreviation: Okla. Crim. App.