not using abuse-of-discretion language
How later courts described this case
- not using abuse-of-discretion language
Written by the judges who cited it.
The opinion
PARKS, Presiding Judge,
concurring in part, dissenting in part:
I concur in the affirmance of appellant’s conviction; however, where, as here, the defendant has offered evidence of mitigating circumstances, it is unnecessary and confusing to the jury to give the so-called “anti-sympathy” instruction during the second stage as evidenced by the recent split of authority between the Tenth Circuit in Parks v. Brown, 860 F.2d 1545, 1552-59 (10th Cir.1988), and the Fifth Circuit in Byrne v. Butler, 847 F.2d 1135, 1139-40 (5th Cir.1988). While I agree it is improper to focus on the use of the words “any” or “mere” I find that the use of an “anti-sympathy” instruction in the second stage, where mitigating evidence has been introduced, improperly undermines the jury’s consideration of mitigating evidence in violation of the Eighth Amendment. See Parks, 860 F.2d at 1553 . I also continue to adhere to the views expressed in my special concurrence in Foster v. State, 779 P.2d 591 (Okla.Crim.App.1989), regarding the validity of the heinous, atrocious or cruel aggravating circumstance; however, I yield to the majority view as a matter of stare decisis.
Therefore, because I find the “anti-sympathy” instruction improper in the second stage, I would vacate the death sentence and remand for resentencing under the majority view enunciated in Cartwright v. State, 778 P.2d 479 (Okla.Crim.App.1989).