# Cheney v. State

> Court of Criminal Appeals of Oklahoma · December 8, 1995 · 66 O.B.A.J. 3916

URL: https://www.frixlaw.com/law-library/cases/9583441

## Case

- **Full name:** Garry Michael CHENEY, Appellant, v. the STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** December 8, 1995
- **Citations:** 66 O.B.A.J. 3916; 909 P.2d 74; 1995 OK CR 72; 1995 Okla. Crim. App. LEXIS 80; 1995 WL 737451
- **Precedential status:** Published
- **Opinion:** Concurring in part by Johnson
- **Judges:** Chapel
- **Cited by:** 68 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/9583441

## How later opinions describe it (automated extraction)

- holding that execution of individuals who were under 18 years of age at time of their capital crimes is unconstitutional
- finding insufficient evidence to support the aggravating circumstance found and modifying to life imprisonment without parole

## Opinion text

*92 JOHNSON, Presiding Judge:
concurs in part/dissents in part.
I concur with the majority herein as it relates to the finding of guilt. I would also affirm the jury’s verdict as it relates to the death sentence. I would not modify the sentence to life imprisonment without the possibility of parole.
If I were a juror, I might not impose the death sentence in this case. You must give deference to the jury and their verdict based upon our prior case law. Our Court has held that when there is a sufficiency of the evidence question, the State is entitled to have the evidence reviewed in the light most favorable to it. Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985). That is clearly the case herein. There is adequate evidence to find the aggravating factor.
The question presented is was there serious physical abuse and/or torture. I believe both are here. The deceased was separated from her husband, had a victim’s protective order and armed herself with mace. In other words, she had done everything she could to protect herself and yet her life was taken. She was shot six or seven times, although rapid fire, from a .45 caliber weapon. There is no question as to the defendant’s premeditated crime. The evidence from the jury’s standpoint could clearly allow them to find that the victim was shot once in the back, fell on her back, and was looking up at the defendant when he came and emptied the gun into her. This clearly shows physical abuse and torture. There was conscious physical suffering and our Court has never put a time limit to this. Nuckols v. State, 805 P.2d 672 (Okl.Cr.1991).
Again, without outlining all of the eviden-tiary points, the jury could have found torture herein. The deceased had obtained a VPO, it is clear that she was scared to death and, in fact, her death did occur. There was a struggle at the car, witnesses heard a woman in fear, she sprayed her estranged husband’s face with mace, and there was past evidence of a history of physical abuse. The jury could have clearly found that the deceased was in great fear for her safety.
It is not for the Court to substitute its judgment for that of the jury. Therefore, I would find that the jury made a proper verdict and would affirm both the judgment as it relates to guilt and the jury sentence of death.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9583441. Public record. Not legal advice.