# Fowler v. State

> Court of Criminal Appeals of Oklahoma · August 30, 1989 · 779 P.2d 580

URL: https://www.frixlaw.com/law-library/cases/9545623

## Case

- **Full name:** Mark Andrew FOWLER, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** August 30, 1989
- **Citations:** 779 P.2d 580; 1989 OK CR 52; 1989 Okla. Crim. App. LEXIS 52; 1989 WL 101027
- **Precedential status:** Published
- **Opinion:** Concurring in part by Parks
- **Judges:** Bussey, Parks, Lane, Brett, Lumpkin
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9545623

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9545623. Public record. Not legal advice.