holding that alleged errors of prosecutorial misconduct should not, on an individual basis, serve as cause for reversal, but instead require reversal only if cumulative effect was such that they deprived defendant of fair trial
How later courts described this case
- holding that alleged errors of prosecutorial misconduct should not, on an individual basis, serve as cause for reversal, but instead require reversal only if cumulative effect was such that they deprived defendant of fair trial
- holding second degree murder instruction appropriate only "where there is no premeditated design to kill any particular person."
- “It is sufficient that the jury is instructed to weigh the mitigating and aggravating evidence, and only when the aggravating circumstances clearly outweigh the mitigating may the death penalty be imposed.”
- fact that defendant "shot three (3) people at close range inside a small frame house and pursued both Linda Neal and Edward Peters in an attempt to further harm them” was sufficient to satisfy requirements for this aggravator
Written by the judges who cited it.
The opinion
LANE, Judge:
concurring in result.
I concur in the results reached by the majority. However, I disagree with the majority when it sustains the aggravating circumstance of the existence of a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. I do so because of the evidence of the death of Appellant’s former wife and the treatment of the incident by the prosecutor.
During the second stage, evidence was introduced that Appellant’s former wife, Gloria, died as the result of a gun shot wound in 1979. Charges of murder were filed against the appellant and later dismissed. The couple’s three year old daughter, Pam, was in the house when the incident occurred. However, she claimed that she had blocked the trauma from her mind, and therefore, she could not testify as to how her mother was killed. To overcome this difficulty, the State sponsored the testimony of an aunt, Laverne Smith, that some hours after the death of Gloria she picked the child up and took her to the aunt’s house. Pam was very upset and when asked what was bothering her she replied that her daddy had shot her mother. This was the only evidence that Appellant caused the death of Gloria.
*1332 I believe we must distinguish Newbury v. State, 696 P.2d 531 (Okl.Cr.1985) from this case on a factual basis. In Newbury , a baby sitter was taken from the child’s home during the night time by a television repair man. When the child’s father returned the baby sitter was gone and the child was in bed asleep. Immediately after the child awoke the next morning the mother asked what happened to the baby sitter, and the child replied that she went with the television man. We found that the child was still under the influence of the event of the baby sitter leaving the child alone to take care of himself and to put himself to bed. We also found that the statement carried an indicia of reliability in that he was not influenced by outside factors.
In the present case, Pam remained at the scene of her mother’s death for some time, including at least a part of the time that the investigation of the death was being conducted. She was exposed to the presence of and the conversations of many adults including the police. Pam was then picked up by Zuemae Dunlap, Appellant’s sister and taken to her home where she remained with Dunlap’s daughter until she was picked up by Smith. It is significant that there is a void in testimony as to the emotional state of Pam until she was picked up by Smith. In Stanberry v. State, 637 P.2d 892 (Okl.Cr.1981) at page 895, we said:
The trustworthiness of a statement should be analyzed by evaluating the facts corroborating the veracity of the statement, the circumstances in which the de-clarant made the statement, and the incentive he or she had to speak truthfully or falsely; and careful consideration should be given to factors bearing on the reliability of the reporting of the hearsay by the witness. (Citation omitted.)
When I apply this standard to the current facts I believe that the child’s exposure to outside influences between the death of her mother and the making of the statement deprive the statement of the degree of trustworthiness necessary for it to qualify under the excited utterance rule.
I am also troubled by comments concerning the death of the former wife made by the prosecutor in closing arguments. The appellant attempted to introduce a copy of the motion to dismiss the former case filed by the State and the order of the court allowing the dismissal. The State gave as its reason for dismissal: “TO BEST MEET THE ENDS OF JUSTICE ... DEFENDANT CLEARED BY POLYGRAPH TEST”. This offer was rejected by the trial judge because he decided that the reference to the polygraph test made the instrument inadmissible. During closing argument the prosecutor stated:
Andy Coats didn’t dismiss that case. The Assistant District Attorney did named Robert Mildfelt dismissed it. We have no way of knowing whether Mr. Coats even knew about it or not. And there could be a lot of reasons as to why it wasn’t — one of them may have been the fact that Pam Paxton wouldn’t talk about it and she was the only eyewitness that witnessed it and who knows. We don’t know why it was dismissed. (Transcript p. 1392.)
With this statement the prosecutor introduced unsubstantiated speculation that was contra to the record of the other case and hinted that because the jury did not know why the case was dismissed the appellant was guilty of murder for his former wife’s death. I find this unacceptable.
Since I find that this aggravating circumstance should not be sustained I feel that I must follow the standards set forth in Castro v. State, 814 P.2d 158 (Okl.Cr.1991) and reweigh the remaining aggravators to determine if the jury would have sustained the sentence of death. To accomplish this task I adopt the analysis of Judge Lumpkin as to the mandatory sentence review contained in the majority opinion except for that relating to the aggravating circumstance that I find faulty and conclude that the sentence of death should be affirmed.