holding prosecutor’s action of "dry-firing” gun while pointing it down may have been overly graphic but was still within the wide latitude permitted during closing argument
How later courts described this case
- holding prosecutor’s action of "dry-firing” gun while pointing it down may have been overly graphic but was still within the wide latitude permitted during closing argument
- concluding that, under 12 Okla. Stat. § 2403 (1981), the evidence properly was excluded because its probative value was substantially outweighed by the danger of confusing the jury
- concluding that, under 12 OMa. Stat. § 2403 (1981), the evidence properly was excluded because its probative value was substantially outweighed by the danger of confusing the jury
- holding whether to instruct the jury that if a unanimous verdict could not be reached, the jury would be discharged and a sentence of life imprisonment (or life imprisonment without the possibility of parole
Written by the judges who cited it.
The opinion
*1308 LUMPKIN, Presiding Judge,
specially concurs:
I concur in the Court’s opinion; however I write separately to emphasize two points.
First, the opinion reluctantly addresses Proposition XXIII, which was added in a supplemental brief filed on June 1, 1992, barely two months before this Court’s opinion of his direct appeal was handed down. The record does not show the request to file a supplemental opinion was ever granted. Therefore, it is not properly before this Court. In any event, a supplemental brief is “intended to be limited to supplementation of recent authority bearing on the issues raised in the brief in chief, or on issues specifically directed to be briefed as ordered by this Court.” Castro v. State, 745 P.2d 394, 404 (Okl.Cr.1987), cert. denied, 485 U.S. 971 , 108 S.Ct. 1248 , 99 L.Ed.2d 446 (1988) (quoting Rule 3.4(F), Rules of the Court of Criminal Appeals, 22 O.S.1991, Ch. 18, App.). See also Rule 9.3(D) (supplemental brief “shall only supplement authorities cited in the previous briefs”). Consequently, the proposition is not properly before the Court, and this Court should not address it.
Second, while this Court has- specifically listed the mitigating evidence presented by Appellant at trial, I write separately to list more specifically the evidence in aggravation against Appellant. This Court struck down the aggravating circumstance that the murders were heinous, atrocious or cruel; but let stand two remaining aggravating circumstances: Appellant knowingly created a great risk of death to more than one person; and the existence of a probability Appellant could commit criminal acts of violence that could constitute a continuing threat to society.
Appellant left a blood bath in his wake, killing one victim at one location while killing two more at another location. At the first location, he killed Teresa Thomas; then shot Tameca Thomas, critically injuring her. Before that, he forced one man, Robert Dumas, into the trunk of a car; he then later opened the trunk, said “I see you don’t want to live,” and shot Dumas twice because Dumas was attempting to call for help. At the second scene, where Appellant worked, he shot and killed Carl Lake and James Rider. He also encountered Gordon Moore, whom he shot in the face after ordering Moore to kneel down on the ground. As Appellant left, he fired at a group of men who ran out into the parking lot; stopped to reload; then fired again before driving away. During that exchange he shot Ancil Davis. This evidence strongly supports the jury’s finding Appellant knowingly created a great risk of death to more than one person.
In addition to the above evidence, Appellant’s own statement to police and other evidence shows he first shot Teresa Thomas inside the house and continued to shoot her as she crawled outside, begging for her life. Evidence also showed Appellant acted calmly and coolly during each murder, and did not kill every one he intended to kill. After he left his place of employment, he called back and asked them how they enjoyed “that trick or treat I just gave you.” Appellant had previously threatened to “take some metal to some heads”; had struck fellow employees without any apparent provocation; and had physically assaulted his fiancee and a former girlfriend when problems arose in those relationships. This amply supports the jury’s finding Appellant would probably commit future acts of violence making him a continuing threat to society.
All this evidence, when taken together, more than outweighs the mitigating circumstances the jury considered.
Accordingly, I concur.