Ellis v. State

LUMPKIN, Vice-Presiding Judge:

specially concurs.

I concur in the Court’s decision to affirm each of the judgments and sentences in this case. However, the Court summarily disregards the scope of its authority on appellate review in determining that the especially heinous, atrocious or cruel aggravating circumstance must fail. While the instruction limiting the application of this aggravator to murders involving torture or serious physical abuse was not given, neither the federal or state constitutions nor the statutory grant of authority to this Court for appellate review preclude the review of the evidence to determine if the aggravating circumstance is supported by the record.

This Court is not precluded from considering whether the evidence presented at trial supports this circumstance under a narrowed *1304 construction. Although the Supreme Court found that the circumstance was not adequately narrowed in Maynard v. Cartwright, 486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988), aff'g Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987); nothing indicates that an appellate court cannot narrow the circumstance on review. Rather, the Supreme Court has indicated just the opposite. See Maynard v. Cartwright, 486 U.S. at 363 , 108 S.Ct. at 1859 , 100 L.Ed.2d at 374 . The Tenth Circuit considered adopting a permissible construction to apply for the purposes of federal habeas corpus review. Cartwright v. Maynard, 822 F.2d at 1491 . It declined to do so because “[t]hat determination must be made by the state in the first instance as it construes its own laws in light of constitutional requirements.” Id. at 1492 .

This view is also supported by Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976). There, the Supreme Court found that the Florida Supreme Court’s narrowing construction of this circumstance provided adequate guidance “to those charged "with the duty of recommending or imposing sentence in capital cases.” 428 U.S. at 256 , 96 S.Ct. 2960 . In footnote 12 of that opinion, the Court went further to indicate that if the facts of the crime could accurately be characterized as falling within the permissible construction, then the finding of the Circumstance may be upheld even though the narrowing language was not specifically used. Id. at 255, n. 12 , 96 S.Ct. at 2968 n. 12. As the uncontroverted evidence shows, it is clear that appellant’s acts may be characterized accurately as especially heinous, atrocious, or cruel under the narrowing construction adopted in Stouffer v. State, 742 P.2d 562 (Okl.Cr.1987). In substance, there is no distinction between reweighing evidence regarding remaining aggravators after striking an invalid aggravating circumstance and reweighing the evidence pursuant to the narrowed construction. I would therefore affirm the heinous, atrocious, or cruel aggravating circumstance because torture or serious physical abuse was clearly proven by the evidence.

BRETT, Judge,

specially concurring:

I concur with the majority opinion. However, I wish to address the issue of whether the prosecutor exercised his peremptory challenges to remove minorities in an unconstitutionally discriminatory manner. The United States Supreme Court has recently revisited this issue in Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991). Now, “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” Powers , 499 U.S. at -, 111 S.Ct. at 1366 , 113 L.Ed.2d at 419 . “Although a defendant has no right to a ‘petit jury composed in whole or in part of persons of [the defendant’s own race,’ [citation omitted] he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria.” Id., 499 U.S. at -, 111 S.Ct. at 1367 , 113 L.Ed.2d at 421 .

Although a defendant need not demonstrate membership in a cognizable racial group, the two-prong test of Batson is still applicable. In order to establish a prima facie case of discrimination under Batson, a defendant must 1) demonstrate that the State exercised a peremptory challenge to remove a venireperson from a cognizable racial group, and 2) demonstrate that the State removed that venireperson solely on the basis of their race.

PARKS, Judge,

specially concurring:

I concur with the majority that the jury’s finding of the “especially heinous, atrocious or cruel”.aggravating circumstance is invalid due to incomplete instructions. 1 I also agree with the analysis concerning the reweighing of the remaining valid aggravating circum *1305 stances against the mitigating circumstances and the resulting affirmance of appellant’s death sentences. However, I write separately to address the following.

Initially, I wish to reiterate my disagreement with the holding in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Rather, I endorse Chief Justice Burger’s dissenting opinion wherein he opined that counsel should not be forced to explain peremptory challenges. Id. 476 U.S. at 117-126 , 106 S.Ct. at 1734-39 . See Manuel v. State, 751 P.2d 764, 765-6 (Okl.Cr.1988) (Parks, J., specially concurring). However, as I am bound to apply the Batson rule, I concur with the majority’s disposition of this issue.

Furthermore, for the reasons stated in my separate opinion in Fox v. State, 779 P.2d 562, 579 (Okl.Cr.1989), I continue to view the so-called “anti-sympathy” instruction in the second stage unnecessary and confusing to the jury where mitigating evidence has been introduced. And, while this writer is “not presently prepared to abandon my opinion regarding the validity of the ‘continuing threat’ circumstance, I agree with appellant that more definitive guidance is needed.” Boltz v. State, 806 P.2d 1117, 1126 (Okl.Cr.1991) (Parks, P.J., specially concurring). As a matter of stare decisis, however, I must yield to the majority view regarding these issues.

. Notwithstanding, it continues to be the opinion of this writer that said circumstance is unconstitutionally vague both on its face and as applied. See Foster v. State, 779 P.2d 591, 594 (Okl.Cr.1989) (Parks, P.J., specially concurring). However, as a matter of stare decisis, I yield to the "torture or serious physical abuse” standard adopted in Stouffer .