Phillips v. State

CHAPEL, Judge,

concurs in part/dissents in part.

¶ 1 I concur in affirming the conviction in this case. However, I dissent to the decision to affirm the death sentence.

¶ 2 The aggravating circumstance of “especially heinous, atrocious, or cruel” is only applicable to those cases in which the murder was preceded by torture or serious physical abuse. Cudjo v. State, 925 P.2d 895, 901 (Okl.Cr.1996), cert. denied, 519 U.S. 1126 , 117 S.Ct. 981 , 136 L.Ed.2d 863 (1997). Here, while the victim was aware of his injury and survived, consciously, for a brief period of time before dying, there is no evidence the murder was preceded by torture or serious physical abuse or that the victim experienced conscious physical or mental suffering prior to his death. “While [the victim’s] murder was senseless and tragic, the manner of [the] killing did not involve any acts of injury or cruelty beyond the scope of the act of killing itself.” Id. at 901-02 .

¶ 3 The other aggravator found in this case was that of “continuing threat.” “To support the aggravator of continuing threat, the State must present evidence showing the defendant’s behavior demonstrated a threat to society and a probability that threat would continue to exist in the future.” Hain v. State, 919 P.2d 1130, 1147 (Okl.Cr.1996), cert. denied, 519 U.S. 1031 , 117 S.Ct. 588 , 136 L.Ed.2d 517 (1996). A defendant’s criminal history, the callousness of the crime, threats against others, lack of remorse, and attempts to prevent calls to the police are all factors this Court has previously considered when addressing this issue. Cudjo, 925 P.2d at 902 .

¶4 Appellant’s criminal history does not support this aggravator. Although prior convictions for second degree burglary, possession of stolen vehicle and escape from a penal institution were admitted in support of the aggravator, this evidence is not probative of the aggravator. “[E]vidence of prior criminal acts must ‘focus on only those crimes which indicate the likelihood of future violence.’ ” Torres v. State, 962 P.2d 3, 23 , cert. denied, — U.S. -, 119 S.Ct. 826 , 142 L.Ed.2d 683 (1999). See also Cudjo, 925 P.2d at 902 (wherein this Court found evidence of non-violent offenses was not probative of the “continuing threat” aggravator). Evidence that while in jail Appellant filled a spray bottle with urine and sprayed it on guards who were serving his food is the only act by Appellant that could be characterized as a violent act. However, in the absence of any evidence of prior criminal acts of violence or evidence of violent criminal activity occurring after the crime, the State failed to establish a pattern of criminal conduct by Appellant that will likely continue in the future based on the specific facts in this record.

¶5 Further, while the facts of this case illustrate a senseless murder and the absence of any remorse by Appellant, the murder itself was not committed in a particularly brutal or calloused manner. See Cudjo, 925 P.2d at 902 ; Snow v. State, 876 P.2d 291, 298 (Okl.Cr.1994), cert. denied, 513 U.S. 1179 , 115 S.Ct. 1165 , 130 L.Ed.2d 1120 (1995). There is no evidence Appellant sought out his victim or engaged in any calculated planning to kill McFail in order to support a finding that the murder was committed in a particularly brutal or calloused manner. Malone v. State, 876 P.2d 707, 718 (Okl.Cr.1994). Accordingly, the evidence is insufficient to support the finding that appellant constitutes a continuing threat to society, and this aggra-vator fails. As only two aggravators were found by the jury and neither is supported by sufficient evidence, the death penalty in this case should be vacated.

¶ 6 Since both aggravators fail for insufficient evidence, I would modify the sentence to life without parole. Moreover, the majority opinion glosses over serious issues raised concerning ineffectiveness of counsel claims. In my judgment, even if the aggravators could be upheld, this case should be reversed and remanded for a new sentencing hearing.