finding that letter from father of murder victim, which stated "Our Bible say's [sic] eye for eye" and requested that the jury "[p]lease just accomlish [sic] the right Godly justice," "exceeded the bounds of permissible victim impact evidence given the overamplified request for the death penalty and the biblical references"
How later courts described this case
- finding that letter from father of murder victim, which stated "Our Bible say's [sic] eye for eye" and requested that the jury "[p]lease just accomlish [sic] the right Godly justice," "exceeded the bounds of permissible victim impact evidence given the overamplified request for the death penalty and the biblical references"
- investigating officer's opinion of events at crime scene, based on physical evidence, barely supported State's theory of conscious suffering, but Court warned that evidence was not strong given lack of medical evidence and brief duration of crime
- indicating that the victim's proclamation that she no longer loved the defendant and that she wanted nothing to do with him was insufficient to constitute adequate provocation to justify a first degree heat of passion manslaughter instruction
- insisting that sentencing recommendations "should be concise statements of the recommendation without amplification and reference to a higher power" and warning that "Idleviating from these rules allows reversible error to creep in"
Written by the judges who cited it.
The opinion
LILE, J.:
concurs in part/dissents in part:
¶ 1 I concur that the judgment of guilt should be affirmed. I disagree with the modification of sentence. "When sufficiency of the evidence of an aggravating circumstance is challenged on appeal, we review the evidence in the light most favorable to the state to determine if any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. In this case, the jury was properly instructed that “heinous means extremely wicked or shockingly evil,” that “atrocious means outrageously wicked and vile,” that “cruel means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others,” and further that this aggravator “is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.” Torture may be physical or mental *983 or a combination thereof. There is evidence in the record from which the jury could properly have determined that the victim feared her ex-husband, (i.e. she left the marital home leaving many of her personal effects behind; she withheld from him her whereabouts during the divorce; she expressed fear of him to her supervisor at work; on the day of her death, she told a co-worker that she was afraid her ex-husband would come to her job and hurt her; when seeing her ex-husband in the parking lot, she told the coworker to call 911 while she ran and locked herself in the office; the defendant tried to coax her out of the office unsuccessfully and finally kicked in the door).
¶ 2 There is abundant evidence from which the jury could properly have concluded that the defendant physically and mentally tortured his ex-wife, (i.e. only one contact head wound was fatal, all other 7 wounds were in non fatal portions of her body, being both arms, both legs, abdomen, etc., all of which the jury may have concluded were inflicted prior to the fatal, execution style contact wound; it appeared a struggle occurred in the office; an earring had been torn from the victim’s ear lobe; the victim was found under a table in the office as though she was trying to get away from the defendant; the evidence indicates that the fatal shot was administered after she went under the table; the incident went on long enough for the defendant to eject one spent clip and insert a second). A review of the record discloses abundant competent evidence to support the jury’s findings with regard to this aggravator.
¶ 3 I have searched the record for evidence that trial counsel’s performance was deficient to the point that the results of the trial were probably changed and find none. Counsel is chastised for not objecting to the state’s victim impact evidence when by agreeing he has a letter from the deceased saying in effect that the defendant is a nice guy, and he also has a letter rather than a live appearance from the victim’s father. Counsel is chastised for not putting on witnesses in the second stage, although he has successfully established through the state’s own witnesses that his client has no criminal record, works for the post office, has been a law abiding citizen all his life, spent 12 years in the military, further that the victim was a prostitute until she married the defendant, etc. I have reviewed the Appellant’s application for an evidentiary hearing, which includes evidence which Appellant now says counsel should have used on his behalf at trial and find nothing that was not established at trial or that is likely to have changed the outcome of the trial. Counsel is chastised for not contesting shot by shot the state’s theory of what happened during the shooting. Having read the transcript of the trial and the affidavit of Lisa Cooper, Appellant’s police officer/technical investigator now OIDS investigator, it is clear to me that such a thorough and protracted examination into the exact choreography of the fatal assault might well have made for a very long and difficult day in court for the Appellant.
¶ 4 In my opinion Appellant received a fair trial and the conviction and sentence should be affirmed. Further, even if I were convinced that the punishment stage of this trial was deficient, I would remand for re-sentencing rather than put myself in the stead of a jury by modifying to life without parole.