Young v. State

LUMPKIN, Judge,

concurs in results.

¶ 1 I concur in the decision to affirm the judgment and sentence in this case but write separately to address the following issues.

*349 ¶2 In Proposition II, the opinion finds error in the trial court’s failure to remove Veniremen Hill and Wunck for cause. Reading Venireman Hill’s answers in context of his entire voir dire, it appears he was trying to resolve the presumption of innocence in his own mind. At no time did he say that he would not or could not follow the law, the instructions or his oath as a juror. The record in this case supports the trial judge’s impression that the prospective juror would be impartial. Spears v. State, 900 P.2d 431, 437 (Okl.Cr.1995).

¶ 3 Ms. Wunck’s only ambivalence to serving was that she had other things to do and if the trial lasted more than 5 days, it would be inconvenient. In response to defense counsel’s request for Wunck to be removed for cause, the trial judge said he would not remove her for cause because if he did he would have to excuse the entire panel for inconvenience. Wunek’s answers were not sufficient to warrant her removal for cause.

¶4 Further, Appellant failed to make a record of the specific jurors he would have excused if he had those 2 peremptoriness he had used on Hill and Wunck. For that reason, Appellant has failed to show any prejudice as a result of the trial court’s actions.

¶ 5 The opinion finds error in the State’s failure to give notice of the “especially heinous, atrocious or cruel” aggravator as it pertained to Count II. This is an issue raised sua sponte by this Court. In Proposition VII of his brief, Appellant argues that he was deprived of a jury finding as to the aggravating circumstances for the two separate victims. In support of his argument he mentions that the State’s notice in support of the aggravating circumstances indicated that the “especially heinous, atrocious or cruel” ag-gravator was alleged only as to Count I and not Count II. However, the crux of Appellant’s argument goes to faulty jury instructions for failing to instruct the jury that their determination of guilt as to the aggravators had to be separate and distinct for each count of murder. Addressing the allegation of error raised by Appellant, there is no error as there were no objections to the instructions or the verdict forms, and the instructions adequately informed the jury they must consider the existence of the aggravating circumstances as to each separate count of first degree murder. Further, evidence of the manner and method of the killing was sufficient to support the “especially heinous, atrocious or cruel” aggravator in Count II, and Appellant had notice of the supporting evidence as it was essentially the testimony of the medical examiner. Therefore, I find no error in Appellant’s Proposition VII.

¶ 6 In finding the evidence insufficient to support the “continuing threat” aggravator the opinion relies solely only the “pattern of criminal conduct” standard and fails to acknowledge that the murder for which the defendant was convicted can be considered as supporting evidence for the aggravator. Malone v. State, 876 P.2d 707, 718 (Okl.Cr.1994). Here there is evidence Appellant sought out his victims in a calculated plan to kill and then brutally beat them to death. This is sufficient evidence to uphold the aggravator.

¶ 7 In reviewing claims of ineffective assistance of counsel, the Strickland v. Washington standard has been further explained by Lockhart v. Fretwell, 506 U.S. 364 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993). Reviewing Appellant’s claim in that light, the record is void of any evidence the trial was rendered unfair or the verdict rendered suspect or unreliable.