holding that the "continuing threat" aggravating circumstance is specific and not vague
How later courts described this case
- holding that the "continuing threat" aggravating circumstance is specific and not vague
- Oklahoma Court of Criminal Appeals reversed rape and anal sodomy convictions due to insufficient evidence but affirmed the death sentence, concluding that the evidence was sufficient to support the aggravating circumstances in the absence of the rape and sodomy convictions
- “Cannon and the State agree that proof of criminal intent is an essential element for a murder conviction under an aiding and abetting theory."
- “A criminal defendant has a right to remove for cause any juror who would automatically vote for the death penalty on conviction regardless of mitigating evidence."
Written by the judges who cited it.
The opinion
LUMPKIN, Judge,
concurring in result.
I concur in the result reached in this case, and generally concur in the analysis presented. However, I am concerned with dicta and comments spread throughout which have no place in a published opinion. I shall address them in the order they are presented.
I agree we should address the subject of what Appellant perceives as an illegal arrest; however, I do not necessarily agree with statements presented in footnote 6. While I always admire the insightful analysis of my colleague, I do not agree with the tendency to insert in footnotes statements which should be in the body of the opinion. While there are exceptions, statements in footnotes are generally regarded as dicta, having no precedential value. See Wainwright v. Witt, 469 U.S. 412, 422 , 105 S.Ct. 844, 851 , 83 L.Ed.2d 841 (1985) (In determining statements in footnote to be dicta, Court notes it had on other occasions rejected language from a footnote as “not controlling.”); McDaniel v. Sanchez, 452 U.S. 130, 141-42 , 101 S.Ct. 2224, 2231-32 , 68 L.Ed.2d 724 (1981); Henderson v. Morgan, 426 U.S. 637, 651 , 96 S.Ct. 2253, 2260 , 49 L.Ed.2d 108 (1976) (White, J., with whom Stewart, Blackmun, and Powell, JJ., join, concurring); McCrary v. State, 533 P.2d 629, 633 (Okl.Cr.1974). Accordingly, I view the statements in footnote 6 as dicta.
Is the opinion overruling what is left of Schorr v. State, 499 P.2d 450 (Okl.Cr.1972) in footnote 13? I have no problem doing so in the body of the opinion; in fact, I would encourage it. The problem lies with the vague language surrounding the discussion of the ease. If we are going to overrule it, let’s explicitly do so.
The discussion dealing with consent to search is also less than clear. The issue is whether a consent to search is valid, not to whether a defendant had a right to a search warrant. I agree with the Court the consent to the search in this case was valid.
The opinion (at 98) ends the discussion of peremptory challenges with this enigmatic comment: “Had the trial court erred in refusing to excuse Hooks for cause, Cannon’s requested remedy would have been unavail *109 able.” Is the opinion trying to say even if there was error by the court the statute does not allow the granting of more than nine peremptory challenges? It is not clear and I cannot accede to the comment as a holding in the case.
Perhaps the most volatile language in the opinion lies in footnote 60, discussing the use of the facts of the particular murder sub judice as the sole basis to support the continuing threat aggravating circumstance. Is the opinion attempting to overrule cases which previously have set out this holding? If the reasoning is faulty, we should in the body of the opinion discuss the legal reason why it is faulty and explicitly overrule cases so holding; if it is not faulty, there is no need in stirring up settled waters. Stare decisis dictates the analysis of this issue and the validity of the aggravator to the facts of this case. The dicta in this footnote serves no useful purpose except to be cited countless times by future appellants.
I am uncertain why there is a discussion (opinion at 107) regarding improper closing argument where the prosecution told the jury it was there to do its duty in deciding this case (just like the officers, the lawyers, and everyone else had). Appellant claimed this was an attempt to minimize the jury’s responsibility. The opinion then states: “While it would be error if the State had counted up the amount of time each person spent doing his ‘duty,’ this Court has held-” This might be a correct statement, however, the prosecution did not do that in this case. Accordingly, the opinion is once again addressing an issue which is not before the Court. We have enough wood to saw which is in front of us; we need not look elsewhere for more. Appellate court opinions should adjudicate the issues before the court based on the facts in the case. It is through clear adjudication of the issues and analysis of the Court’s holding that provides appropriate guidance to trial judges and practitioners. They should not have to guess at what we have decided and why.
Otherwise, I agree with the excellent analysis presented in the opinion.