finding one instance of opinion bordering on impropriety and other instances that the defense attacked as to credibility on cross-examination and were thus within the jury’s province
How later courts described this case
- finding one instance of opinion bordering on impropriety and other instances that the defense attacked as to credibility on cross-examination and were thus within the jury’s province
- jury deliberated seven and a half hours before receiving Allen charge
Written by the judges who cited it.
The opinion
LUMPKIN, Judge,
concurring in part/dissenting in part.
While I concur in the affirmance of the conviction for Murder, First Degree, I differ with the majority’s analysis of Appellant’s proposition regarding the sufficiency of the evidence presented against him and disagree with the assumption expressed in Footnote 5 regarding a pretextual arrest, together with the additional unsupported assumption the arrest was illegal. An officer cannot disre *130 gard warrants for the arrest of an individual just because that individual is a suspect in another crime. I must also dissent to the Court’s decision to reverse and remand for resentencing.
The Court examines Appellant’s insufficiency of the evidence claims using the standard of review requiring the evidence to exclude every reasonable hypothesis except that of guilt. The Court mistakenly states that the evidence presented at trial was entirely circumstantial. This is not the case. Appellant’s own testimony at trial, together with his statement to Cindy Parks and others, constituted direct evidence, allowing use of the Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985) standard of review. Mayes v. State, 887 P.2d 1288, 1302 (Okl.Cr.1994). As stated in my special concurrence to White v. State, 900 P.2d 982, 995 (Okl.Cr.1995), I urge the Court to adopt a “unified Spuehler-type” approach recognizing the equivalent reliability of direct and circumstantial evidence when analyzing sufficiency claims.
I dissent to the Court’s decision to reverse Appellant’s death sentence for resentencing because of the trial court’s failure to give an instruction on the punishment option of life without possibility of parole. I reiterate the analysis and conclusions in my separate opinions in Hain v. State, 852 P.2d 744, 753 (Okl.Cr.1993), cert. denied, — U.S. -, 114 S.Ct. 1402 , 128 L.Ed.2d 75 (Okl.Cr.1994) and Salazar v. State, 852 P.2d 729, 741 (Okl.Cr.1993) that the proper criminal penalty is the penalty in effect at the time the defendant commits the crime. Consequently, Appellant was not entitled to an instruction on life without possibility of parole.