Humphreys v. State

LUMPKIN, Judge,

concurs in result:

I agree the sentence in this case should be affirmed. But because the opinion reviews material which it should not, I can only concur in result.

Procedurally, here’s what has happened: Appellant appealed both the judgment of guilt and sentence of death to this Court. This Court affirmed the judgment of guilt, but vacated the sentence and remanded for *579 resentencing in an opinion handed down September 27, 1993 (as corrected October 4, 1993). Humphrey v. State, 864 P.2d 343 (Okl.Cr.1993). On October 26, 1993, Appellant filed an Application for Rehearing. That application was denied on December 3, 1993. On December 21, 1993, Appellee, the State, filed a motion to recall the mandate. Mandate was issued January 5, 1994. On March 15, 1994, Appellee filed a Petition for Writ of Certiorari with the United States Supreme Court. That Petition was denied on May 2, 1994. Oklahoma v. Humphreys, 511 U.S. 1077 , 114 S.Ct. 1663 , 128 L.Ed.2d 379 (1994).

I set out this procedural history to make a point: Appellant had the opportunity to seek Supreme Court review of the guilt proceedings after the judgment of this Court affirming his guilt was handed down in 1993. He did not do so. Now, by performing a review of evidence in the first stage in this appeal dealing with the punishment phase, the Court is allowing a collateral review of guilt-stage evidence through the back door; a procedure that does not contribute to finality. 27 Such a procedure is unfair to the opposing party, who in fact did seek certiorari review in a timely manner.

Issues pertaining to the guilt stage were decided in 1993. As a result, they should either be res judicata or waived. This Court would not hesitate to hold these very same issues waived had this come up on post-conviction. 22 O.S.Supp.1995, § 1089(C). The same application of the rule of law should apply on review of a resentencing trial. In effect, that is the ultimate result of the Court’s analysis and decision in this case as it relates to some of the evidence “properly admitted” in the first trial as admissible in the resentencing trial, i.e. no objection at first trial to custodial statements, waived issue, then properly admitted. Rather than confusing the issue by language which seems to review evidence from a stage of trial that is no longer at issue and creating questions in the minds of trial judges as to how they should properly handle objections to evidence on resentencing proceedings, we should adopt and apply res judicata and waiver in a clear and concise manner.

Accordingly, I can only concur in result.

. A person desiring to appeal a criminal judgment "is timely” when it is filed within 90 days after the state court enters judgment. Sup.Ct. R. 13(1). Furthermore, the Clerk of the Supreme court will not file a petition "that is jurisdiction-ally out of time.” Sup.Ct. R. 13(2). The Supreme Court promulgates rules for applications for writs of certiorari from state courts pursuant to 28 U.S.C. 2101(d). Although the rule states the Clerk shall not file a petition which is "juris-dictionally” out of time, the Court has apparently held that the 90-day requirement is not jurisdictional, and that the "procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion when the ends of justice so require.” Schacht v. United States, 398 U.S. 58, 64 , 90 S.Ct. 1555, 1559 , 26 L.Ed.2d 44 (1970). See also Taglianetti v. United States, 394 U.S. 316 , 89 S.Ct. 1099 , 22 L.Ed.2d 302 (1969). Despite this pronouncement, there are far more cases where the Supreme Court refuses review based on an untimely filing than there are cases where they accept. See Shapiro v. Doe, 396 U.S. 488 , 90 S.Ct. 641 , 24 L.Ed.2d 677 (1970); see also Cheley v. Parham, 404 U.S. 878 , 92 S.Ct. 219 , 30 L.Ed.2d 159 (1971); Beaufort Transfer Co. v. United States, 404 U.S. 806 , 92 S.Ct. 66 , 30 L.Ed.2d 39 (1971); Stein v. Luken, 396 U.S. 555 , 90 S.Ct. 756 , 24 L.Ed.2d 747 (1970); United States v. Cotton, 397 U.S. 45 , 90 S.Ct. 816 25 L.Ed.2d 43 (1970); Pittsburgh Towing Co. v. Mississippi Val. Barge Line Co., 385 U.S. 32 , 87 S.Ct. 195 , 17 L.Ed.2d 31 (1966).