recognizing that it is critical for the State to prove the victim's conscious physical suffering before death
How later courts described this case
- recognizing that it is critical for the State to prove the victim's conscious physical suffering before death
- holding admission of victim photographs during penalty phase “came very close” to reversible error for just this reason
- finding no abuse of discretion when support is found in record for trial court’s decision
- setting forth identical reasoning
Written by the judges who cited it.
The opinion
ORDER GRANTING REHEARING TO CORRECT OMISSION AND DIRECTING ISSUANCE OF MANDATE
Petitioner filed a Petition for Rehearing in the above styled case after his conviction for Murder in the first degree (21 O.S.Supp. 1989, § 701.7) and sentence of death was affirmed by this Court on July 14, 1995. A petition for rehearing may only be filed if 1) some question decisive of the ease and duly submitted by the attorney of record has been overlooked by the Court, or 2) the decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument. Rule 3.14(B), Rules of the Court of Criminal Appeals, 22 O.S.Supp. 1994, Ch. 18, App. We grant rehearing to correct an omission in this Court’s opinion.
In his Petition for Rehearing, Petitioner correctly claims this Court made no specific finding that the admission of co-defendant Spears’ hearsay statement was harmless in second stage. 1 After reviewing the record, it is clear the erroneous admission of Spears’ hearsay statement did not contribute to the verdict rendered or the sentence imposed. Therefore, we find the admission of Spears’ statement was harmless beyond a reasonable doubt in both the first and second stages of trial.
Petitioner also asserts that this Court employed an erroneous standard of review when it reviewed the sufficiency of the evidence supporting the aggravating circumstances found in this matter. 2 Petitioner asserts the correct standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. Lewis v. Jeffers, 497 U.S. 764 , 110 S.Ct. 3092 , 111 L.Ed.2d 606 (1990). We have reviewed the opinion and find this standard was employed by this Court. 3 We find the Petition for Rehearing should be and is hereby GRANTED, but no relief is warranted.
IT IS THEREFORE THE ORDER OF THIS COURT that this Petition for Rehearing is GRANTED with no relief required and the court clerk should issue the mandate.
IT IS SO ORDERED.
/s/ Charles A. Johnson CHARLES A JOHNSON Presiding Judge
/s/ Charles S. Chapel CHARLES S. CHAPEL Vice Presiding Judge
*785 /s/ Gary L. Lumpkin GARY L. LUMPKIN Judge
/s/ James F. Lane JAMES F. LANE Judge
/s/ Reta M. Strubhar RETA M. STRUBHAR Judge
.In our opinion we found "[gliven Powell’s confession and the testimony of the other witnesses, it is inconceivable the admission of Spears’ statement contributed to the verdict.” Powell v. State, 906 P.2d 765, 773 (Okl.Cr.1995).
.The jury found: [1] the murder was especially heinous, atrocious, or cruel; and [2] the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. 21 O.S.1981, § 701.12(4) and (5).
.Powell v. State, 906 P.2d at 784 .