# Stouffer v. State

> Court of Criminal Appeals of Oklahoma · September 27, 1991 · 62 O.B.A.J. 3014

URL: https://www.frixlaw.com/law-library/cases/9560177

## Case

- **Full name:** Bigler Jobe STOUFFER, II, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** September 27, 1991
- **Citations:** 62 O.B.A.J. 3014; 817 P.2d 1275; 1991 OK CR 106; 1991 Okla. Crim. App. LEXIS 113
- **Precedential status:** Published
- **Opinion:** Concurring in part by Parks
- **Judges:** Johnson, Lane, Lumpkin, Brett, Parks
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9560177

## Opinion text

PARKS, Judge,
concurring in part/dissenting in part:
The majority refuses to address certain assignments for appellant’s failure to raise them on the direct appeal. I consider it profitable to consider these issues.
First, Stouffer contends that one aggravating circumstance found to exist by the jury, that is, that the “defendant knowingly created a great risk of death to more than one person,” is unconstitutional. His claim is that the circumstance is overbroad. This Court has previously addressed this issue as has the Tenth Circuit of Appeals, which court specifically held this circumstance constitutional as applied. Cartwright v. State, 695 P.2d 548 (Okl.Cr.1985) and Cartwright v. Maynard, 802 F.2d 1203 (10th Cir.1986), on rehearing, 822 F.2d 1477 (1987), affirmed, 486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988).
Appellant also argues that the jury should have been instructed during the sentencing stage that there exists a presumption that a life sentence is appropriate. This instruction was not requested of the trial court. None was presented as to the trial judge to review for accuracy, nor has any precedent been established for such an instruction. I cannot find error in not giving one, but do note that the jury was properly instructed that they must find beyond a reasonable doubt the existence of an aggravating circumstance before the death penalty could be considered.
I have further reviewed the closing arguments of the prosecution at trial which appellant urges to be vouching for the credibility of the detective and calling attention to his experience in prosecuting, thus tending to dilute the juror’s sense of responsibility for a verdict of death. The statements are:
Lets talk a little bit about your roll [sic] in this case. We are asking you to return a verdict that will place Bud Stouf-fer on Death Row, and that’s the only place he ought to be. Before you could do that, the District Attorney in this county had to make the decision to make the death penalty. And Pat Morgan and I had to come into this courtroom, and lay the evidence out in front of you that would warrant a death penalty. And we did that.
But before we could do that, Bob Horn, and those other detectives you’ve seen, had to go out and gather the evidence, *1279 and make the case, and bring that evidence to us that would allow us to come before you and ask for that death penalty-
Upon reading further, the prosecutor explains that only the appellant entered the case voluntarily, not the prosecutors, the police, nor the jury. Read in context, it does not appear to have misled the jury to believe that responsibility for the sentence of death rested elsewhere. Parks v. Brown, 860 F.2d 1545 (10th Cir.1988), reversed on other grounds, sub nom., Saffle v. Parks, 494 U.S. 484 , 110 S.Ct. 1257 , 108 L.Ed.2d 415 (1990). Therefore, I find no error.
I continue to view “anti-sympathy” instructions during the sentencing stage confusing to a jury when mitigating evidence is offered by the defendant. For the reasons I expressed in Fox v. State, 779 P.2d 562, 579 (Okl.Cr.1989), I continue to disapprove of such an instruction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9560177. Public record. Not legal advice.