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
JOHNSON, Presiding Judge,
concurring in part and dissenting in part.
I would concur in the findings of the Court affirming the First Degree Murder and Third Degree Arson. I would dissent, however, from the reversal to dismiss the First Degree Rape and Forcible Anal Sodomy. I find that there was sufficient evidence to corroborate the appellant’s statements as it relates to the two charges. I find that there was corroborating evidence of a green nightgown that was found where it was stated it would be found, that same was turned inside out as if it had been moved in a hurry. I would also find that there was corroborating evidence relative to the green nightgown, that appellant had stated she was wearing a green nightgown, and this should be enough to presume the pants were hers.
I also find that there was sufficient evidence of the anal sodomy. The forensic expert testified that no semen was found, but also this is common. You cannot presume that the person was not raped just due to the lack of semen. I agree the evidence was weak, but would uphold the jury’s verdict.
ORDER DENYING PETITION FOR REHEARING AND DIRECTING ISSUANCE OF MANDATE
Randall Eugene Cannon was tried by jury before the Honorable Thomas C. Smith in the District Court of OHahoma County, in Case No. CRF-85-3254. He was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1981, § 701.7, Third Degree Arson in violation of 21 O.S.1981, § 1403(A), First Degree Rape in violation of 21 O.S.1981, § 1114, and Forcible Anal Sodomy in violation of 21 O.S.Supp.1982, § 888. At the conclusion of the first stage of trial, the jury returned a verdict of guilty. During sentencing, the jury found 1) the murder was especially heinous, atrocious, or cruel; 2) there was a probability that Cannon would commit criminal acts of violence that would constitute a continuing threat to society; and 3) the murder was for the purpose of avoiding arrest or prosecution. Cannon was sentenced to death for the murder conviction, ten years incarceration for arson, forty years for rape, and twenty years for sodomy.
*110 By its September 8, 1995, published opinion, this Court affirmed Cannon’s convictions and sentences for murder and arson, and reversed the convictions for rape and sodomy with instructions to dismiss. 1 Cannon is now before the Court on a Petition for Rehearing, Rule 3.14, Rules of the Court of Criminal Appeals, 22 O.S.Supp.1995, Ch. 18, App. According to Rule 3.14, a Petition for Rehearing shall be filed for two reasons only:
(1) That some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or
2) That the decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.
Cannon raises one proposition in his Petition for Rehearing which fails to meet the criteria set forth in Rule 3.14. Accordingly, this proposition will not be addressed. 2
IT IS THEREFORE THE ORDER OF THE COURT that the Petition for Rehearing is DENIED. The Clerk of the Court is directed to issue the mandate forthwith.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 6th day of October, 1995.
/s/ Charles A. Johnson,
CHARLES A. JOHNSON Presiding Judge
/s/ Charles S. Chapel,
CHARLES S. CHAPEL Vice-Presiding Judge
/s/ Gary L. Lumpkin,
GARY L. LUMPKIN Judge
/s/ James F. Lane,
JAMES F. LANE Judge
/s/ Reta M. Strubhar,
RETA M. STRUBHAR Judge
. Cannon v. State, 66 O.B.J. 2779 (Okl.Cr. September 8, 1995).
. This Court determined beyond a reasonable doubt that Cannon’s erroneous convictions for rape and sodomy did not contribute to the remaining verdicts. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967); Satterwhite v. Texas, 486 U.S. 249 , 108 S.Ct. 1792 , 100 L.Ed.2d 284 (1988).