# McCarty v. State

> Court of Criminal Appeals of Oklahoma · November 6, 1998 · 69 O.B.A.J. 3886

URL: https://www.frixlaw.com/law-library/cases/9552516

## Case

- **Full name:** Curtis Edward McCARTY, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** November 6, 1998
- **Citations:** 69 O.B.A.J. 3886; 977 P.2d 1116; 1999 OK CR 18; 1998 OK CR 61; 1998 Okla. Crim. App. LEXIS 56; 1998 WL 812947
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumpkin
- **Judges:** Vice-Presiding, Johnson, Chapel, Strubhar, Lane, Lumpkin, Lile
- **Cited by:** 17 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/9552516

## How later opinions describe it (automated extraction)

- finding death was not instantaneous

## Opinion text

LUMPKIN, Vice-Presiding Judge:
Specially Concurring.
¶ 1 I would like to commend Matthew D. Haire, Appellant’s appellate counsel, for his excellent legal work in Mr. McCarty’s resen-tencing appeal and petition for rehearing. Instead of presenting the standard arguments we see in most appeals, counsel has professionally presented us with thought-provoking issues, a well-reasoned analysis, and insightful arguments which have challenged us, both legally and intellectually. This is the quality of appellate advocacy which advances, clarifies, and helps to improve our understanding of the law.
¶ 2 Counsel’s comments regarding my prior writings regarding dicta and the need for an accurate and consistent application of precedent are well-taken. Our jury instructions needed to be modified, and counsel’s efforts clarified this issue for the Court. Furthermore, counsel correctly notes that statements in footnotes are generally regarded as dicta and that I have previously written to that issue, urging the Court to confine its decisions to the body of the opinion. See e.g. *1142 Cannon v. State, 1995 OK CR 45, ¶¶ 1-8 , 904 P.2d 89, 108 . However, other members of the Court have not adopted that position.
¶3 While I did not author the Grasso opinion, I did vote to concur in the Court’s decision. Upon re-examining the issue presented in Grasso, it is clear that the Court did not base its affirmance of the prior violent felony aggravator entirely on language found in footnote four. However, it is also clear that footnote four was not entirely inconsequential to the decision. While I would certainly have preferred a more detailed analysis in the body of the Grasso opinion, I found, and continue to find, the legal position for which it stood to be correct.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9552516. Public record. Not legal advice.