Boltz v. State

PARKS, Presiding Judge,

specially concurring:

Initially, I feel compelled to address appellant’s sixteenth assignment wherein he contends that the “continuing threat” aggravating circumstance is vague and that Oklahoma has provided no definitive guidance on what must be proved to establish the same. Specifically, I am concerned with the definition of “society” as it relates to this aggravating circumstance and whether the “sheer callousness” in which a murder was committed can support a jury’s finding that a defendant constitutes a continuing threat.

The majority herein correctly states that this Court has previously upheld the “continuing threat” aggravating circumstance as being specific, not vague, and readily understandable, and has determined that the calloused manner in which the crime *1127 was committed, without more, may support this aggravating circumstance. Indeed, this writer has authored several opinions, and concurred in a number of others, which have reached these conclusions. And while I am not presently prepared to abandon my opinion regarding the validity of the “continuing threat” circumstance, I agree with appellant that more definitive guidance is needed.

Title 21 O.S.1981, § 701.12(7), defines the aggravating circumstance at issue as follows: “The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” (emphasis added). What is meant by “society,” I am unsure. Barring escape, a convicted murderer sentenced to life imprisonment will never again pose a threat to free society. 1 The term “society” must therefore be interpreted to encompass prison society if § 701.12(7) is to be evaluated in a non-arbitrary manner. However, this Court has yet to announce such an interpretation.

I am also concerned about this Court’s rulings that the callous nature of a murder, standing alone, may support the “continuing threat” aggravating circumstance. The word “callous” is defined as “emotionally hardened.” Webster’s II New Riverside University Dictionary 220 (1988). This definition is strikingly similar to the following:

[T]he term “heinous” means extremely wicked or shockingly evil; “atrocious” means outrageously wicked and vile; “cruel” means pitiless, or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.

Oklahoma Uniform Jury Instructions— Criminal (OUJI-CR) 436. While some “callous” murders may alone support the “continuing threat” circumstance, it would appear, based upon the foregoing, that many such murders would best be classified as being “heinous, atrocious or cruel.” See 21 O.S.1981, § 701.12(4). However, this Court has failed to specifically define which types of murders will alone support the finding of a “continuing threat.”

In his tenth assignment of error, appellant contends that the trial court erred in admitting evidence of a burglary at the victim’s home the morning after his murder. I agree. It is my opinion that the circumstantial evidence concerning the burglary did not exclude every reasonable hypothesis except that of appellant’s guilt. See Dickson v. State, 761 P.2d 860, 862 (Okl.Cr.1988); Rudd v. State, 649 P.2d 791 (Okl.Cr.1982). However, on the basis of stare decisis, I must apply the standard announced by the majority to determine whether the sheer callousness of the offense supports the jury’s determination that appellant constitutes a continuing threat. Having carefully considered the brutal nature of the murder at issue, I find that the introduction of the burglary evidence did not effect the outcome of appellant’s trial.

I also continue to adhere to the views expressed in my special concurrence in Foster v. State, 779 P.2d 591, 594 (Okl.Cr.1989), regarding the validity of the heinous, atrocious or cruel aggravating circumstance, and reiterate my opinion that failure to conduct a post-examination competency hearing prior to trial mandates reversal. Anderson v. State, 765 P.2d 1232, 1234 (Okl.Cr.1988) (Parks, J., dissenting). *1128 However, I yield to the majority view as a matter of stare decisis.

Finally, I must disagree with the majority that a proportionality review is no longer required under Oklahoma’s present statutory scheme. I believe that the application of 21 O.S.Supp.1985, § 701.13(C), to cases pending on appeal at the time the statute was passed, as was the present case, renders the enactment an ex post facto law. See Green v. State, 713 P.2d 1032 , 1041 n. 4 (Okl.Cr.1985). See also Foster v. State, 714 P.2d 1031, 1042 (Okl.Cr.1986) (Parks, P.J., specially concurring). However, I have independently applied 21 O.S.1981, § 701.13(C), to the facts of this case and find that the sentence imposed is proper.

On the basis of the foregoing, I concur that the Judgment and Sentence of death should be affirmed.

. I make this assertion fully cognizant of the fact that a defendant sentenced to a term of “life” imprisonment will, in reality, become eligible for parole consideration after serving a portion of his sentence, thereby giving rise to the possibility that he may again threaten free society. However, it is well settled that jurors may not consider the parole policies of the executive branch of this State when arriving at a sentence. See Nguyen v. State, 769 P.2d 167, 173 (Okl.Cr.1988), ce rt. denied — U.S.-, 109 S.Ct. 3264 , 106 L.Ed.2d 609 . ("[I]t is improper for a trial court to instruct on the eligibility of a defendant for parole.”) We must therefore presume that a jury, in following the law given to it by the trial court, will consider a "life” sentence to mean a term of imprisonment for the remainder of a defendant’s life. Arguably, such a presumption may not be said to exist under the present statutory scheme, whereby a defendant may be sentenced to a term of "life without parole.” See 21 O.S.Supp.1987, § 701.9(A). However, no such provision existed at the time of appellant's trial.