Mayes v. State

CHAPEL, Judge,

dissenting.

I find evidence of the settlement agreement reached in the Trammell civil suit— which determined the distribution of the proceeds from the victim’s insurance policy — to be irrelevant and prejudicial to the issues before the jury in the trial of William Mayes. Because of the admission of this evidence, I respectfully dissent from the majority’s affir-mance of Mayes’ conviction and sentence.

During the guilt and innocence portion of Mayes’ trial, the State introduced the testimony of Hank Anderson, the attorney who represented Margaret Trammell’s children in a federal stakeholder’s suit concerning the distribution of the proceeds from the victim’s life insurance policy. Anderson testified that, under the terms of the settlement reached in this civil suit, Margaret Trammell was to receive twenty percent of the proceeds from the policy and Trammell’s children were to receive eighty percent of the proceeds. Mayes was not a party to or a beneficiary of this settlement.

*1324 While the settlement agreement may be relevant as to Margaret Trammell’s criminal liability, under the facts of this case, the Trammell settlement agreement was totally irrelevant to Mayes’ guilt or innocence. 1 See generally Yoder v. State, 66 Okl.Cr. 178, 672 , 90 P.2d 669 (1989) (admission of evidence of settlement negotiations which were not authorized by defendant constituted prejudicial error). Mayes was not a party to the settlement nor did he receive any of the proceeds of the victim’s insurance policy as part of the settlement. Thus, the agreement revealed nothing about Mayes’ liability, either civil or criminal.

This evidence prejudiced Mayes. See Yoder v. State, supra. Margaret did not take the stand and Mayes could not question her about her motivations behind the settlement agreement. Using such evidence to convict Mayes was highly prejudicial and improper. Accordingly, I conclude that Mayes’ conviction and sentence must be reversed and the case remanded for a new trial.

Although I would reverse for the above-stated reason, I also feel compelled to address two other issues. In Duvall v. State, 825 P.2d 621, 630 (Okl.Cr.1991), cert. denied, - U.S. -, 113 S.Ct. 224 , 121 L.Ed.2d 161 (1992), the Court modified the language in OUJI-CR 104.9 Alternate 2, which is an instruction given to the jury during voir dire. The instruction reads:

“If selected as a juror, and you find that the law and evidence in this ease warrants the recommendation of the death penalty, could you vote to recommend that penalty?”

Id. (emphasis added). I do not feel the use of the terms “recommendation” or “recommend” accurately reflects our sentencing scheme.

Section 926 of Title 22 O.S.1991 provides:

In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.

Thus the jury verdict sentencing a defendant to death is more than simply a “recommendation”; it is in fact the sentence that will be imposed. See also Luker v. State, 552 P.2d 715, 719 (Okl.Cr.1976) (“where the jury declare the punishment in their verdict within the limitations fixed by law, the district courts of this State must render a judgment according to such verdict and are without authority to modify the punishment assessed by the jury in pronouncing judgment upon the conviction”); Brown v. State, 314 P.2d 362 (1957) (same); Bean v. State, 77 Okl.Cr. 73 , 138 P.2d 563 (1943) (same). Because the sentence set by the jury will be the sentence imposed on the defendant, I would use the terms “imposition” and “impose” in the instruction to the jury rather than the terms “recommendation” or “recommend.”

Secondly, I disagree with the majority’s conclusion that an instruction on life without the possibility of parole in the sentencing phase of the trial is not necessary even when requested by the defendant. In my opinion, this finding is inconsistent with the legislative intent underlying the life without parole sentencing option in capital murder cases.

This Court has long recognized that issues concerning pardon or parole decisions rest with the executive branch of the government and lie outside the province of the jury. Miller v. State, 522 P.2d 642 (Okl.Cr.1974). However, in capital cases, the Legislature has provided the jury with a sentencing option that specifically refers to parole. In capital cases the Legislature has made clear it intends for the jury to consider parole in determining which sentence should be imposed on the defendant. In accordance with this legislative intent, I think it appropriate, at the request of defense counsel, for the *1325 trial court to instruct the jury as to how the sentence of life without parole would be treated under Oklahoma law. See generally Simmons v. South Carolina, — U.S. -, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994).

Article VI, section 10 of the Oklahoma Constitution sets out the limitations and authority of the Pardon and Parole Board and the Governor in granting relief to a defendant who has been sentenced to life without parole. An instruction based on this provision would be useful. Article VI, section 10 provides, in pertinent part:

[T]he Pardon and Parole Board shall have no authority to make recommendations regarding parole for convicts sentenced to death or sentenced to life imprisonment without parole.

The Governor shall have the power to grant, after conviction and after favorable recommendation by a majority vote of the said Board, commutations, pardons and paroles for all offenses, except eases of impeachment, upon such conditions and with such limitations as he may deem proper, subject to such regulations as may be prescribed by law. Provided, the Governor shall not have the power to grant paroles if a convict has been sentenced to death or sentenced to life imprisonment without parole.

An instruction based on this constitutional provision would (1) provide the jury with a clearer understanding of the life without parole option under Oklahoma law and (2) implement the legislative intent underlying the life without parole option. Accord State v. Henderson, 109 N.M. 655, 658-59 , 789 P.2d 603, 606-607 (1990); Bruce v. State, 318 Md. 706 , 569 A.2d 1254 (1990); Doering v. State, 313 Md. 384 , 545 A.2d 1281, 1292-95 (1988).

For the reasons stated above, I believe that Mayes’ conviction should be reversed and the case remanded for a new trial. Accordingly I dissent.

ORDER DENYING REHEARING AND DIRECTING ISSUANCE OF MANDATE AND CORRECTION ORDER

Petitioner has filed a Petition requesting this Court grant rehearing and stay the mandate in Mayes v. State, 887 P.2d 1288 . In it, Appellant alleges three reasons why rehearing should be granted: the cumulative effect of harmless errors; reliance on a case used in determining the scope of review to be used when examining the sufficiency of the evidence; and reliance on inaccurate factual grounds to uphold his judgment and sentence.

We find Petitioner is not entitled to a rehearing. He failed to present a cumulative error argument to this Court in his brief-in-chief, and has thus waived it for consideration at this time. See Brown v. State, 871 P.2d 56, 68 (Okl.Cr.1994) (propositions of error submitted for the first time in supplemental briefs deemed waived for consideration on direct appeal). In any event, this Court determined each of the errors to be harmless, and the single error of constitutional magnitude to be harmless beyond a reasonable doubt. We see no basis in the petition to revisit those errors.

Appellant has appropriately brought to this Court’s attention two minor errors which, although they had no bearing on the Court’s determination of the case, require correction. We correct those segments of the opinion below.

Therefore, Appellant has failed to show that our opinion in this case conflicts with current case law or an express statute; and he has not presented this Court with some question decisive of the ease that has been submitted by the attorney of record and overlooked by this Court. Those are the sole grounds upon which rehearing can be based. See 22 O.S.1991, Ch. 18, App. Rules of the Court of Criminal Appeals, Rule 3.14(B)(1) & (2).

In addition, we hereby make the following corrections in this Court’s opinion:

[Editor’s Note: Changes ordered have been incorporated into the opinion.]

IT IS SO ORDERED.

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Presiding Judge

*1326 /s/ Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge

/s/ James F. Lane JAMES F. LANE, Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge

. The majority's discussion of 12 O.S.1981, § 2408 is unnecessary because the evidence of the settlement agreement is inadmissible on the grounds of relevancy.