finding insufficient evidence to support the two aggravating circumstances found and modifying to life imprisonment without parole
How later courts described this case
- finding insufficient evidence to support the two aggravating circumstances found and modifying to life imprisonment without parole
- "To support a finding that a defendant committed murder in an especially heinous, atrocious or cruel manner, the State must show the murder was preceded by torture or physical abuse, which may include the infliction of either great physical anguish or extreme mental cruelty.”
- in prosecution under especially heinous, atrocious or cruel aggravating circumstance, “[i]t is . . . critical that the State prove that the victim consciously suffered before death”
Written by the judges who cited it.
Distinguished
Distinguished by Thornburg v. State, 70 O.B.A.J. 2392 (1999)
¶ 14 Appellant acknowledges this Court’s holdings in Perry and Hooker and suggests that his case is distinguishable because his testimony did not render every defense unavailable except alibi.
The opinion
JOHNSON, Presiding Judge,
concurs in part/dissents in part:
I concur with the Court in affirming the judgment and the jury verdict in this case as to guilt. I would dissent from the Court’s finding to modify to life without parole and, further, I would affirm the death sentence herein and affirm both aggravators.
The facts in this ease are fairly clear. I would find circumstantial evidence to find the sufficiency of both aggravators. It would appear from the evidence that an abduction occurred between 9:45 and 10:00 p.m. on March 27, 1990. From other physical evidence, again, circumstances would warrant a jury finding that there was sufficient evidence to warrant heinous, atrocious and cruel as an aggravator. Appellant did not raise this issue, the issue that was raised had to do with the aggravator being inconsistently applied. Regardless, I would find that there was sufficient evidence to substantiate the aggravator.
This Court has consistently held in the past that evidence of the killing for which the defendant has been convicted can be enough to justify the continuing threat aggravator. The callous nature with which the deceased was killed, the way the body was dumped into the creek, the evidence of how appellant admitted the killing, are a basis for finding the aggravator. Therefore, based upon the past rulings of this Court and the evidence in this case, I would uphold the aggravator and the death sentence. Workman v. State, 824 P.2d 378, 383-84 (Okl.Cr.1991), cert. denied, — U.S. -, 113 S.Ct. 258 , 121 L.Ed.2d 189 (1992).