# Wallace v. State

> Court of Criminal Appeals of Oklahoma · March 27, 1995 · 66 O.B.A.J. 1150

URL: https://www.frixlaw.com/law-library/cases/9617434

## Case

- **Full name:** George Kent WALLACE, Appellant, v. the STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** March 27, 1995
- **Citations:** 66 O.B.A.J. 1150; 893 P.2d 504; 1995 OK CR 19; 1995 Okla. Crim. App. LEXIS 24; 1995 WL 131336
- **Precedential status:** Published
- **Opinion:** Concurrence by Strubhar
- **Judges:** Lumpkin, Johnson, Lane, Chapel, Strubhar
- **Cited by:** 53 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9617434

## How later opinions describe it (automated extraction)

- holding that a defendant who sought to receive the death penalty had the right to refuse to present mitigation evidence

## Opinion text

STRUBHAR, Judge,
concurring in result.
I agree with the majority that the judgment and sentence in this case should be affirmed. However, I write separately to address the Majority’s erroneous conclusion that a sentencer may impose the death penalty without considering mitigating evidence and not run afoul of the Eighth Amendment’s bar against arbitrary and unreliable impositions of the death penalty. See, Majority, op. at 510-12.
I agree with the Majority that a competent defendant may waive his personal right to present mitigating evidence. See, 21 O.S. 1991 , § 701.10(C) 1 . I further agree that Appellant’s wishes not to present mitigating evidence in the instant case did not deprive the State of Oklahoma of its interests that Appellant’s sentence be imposed in a constitutionally sound manner because mitigating evidence was considered by the sentencer. See, Majority, op. at 512.
However, I cannot agree that a sentencer may impose the death penalty without considering mitigating evidence present in a ease simply because the defendant elects not to present any evidence in mitigation. Under our statutory scheme, a sentencer may impose the death penalty only if the aggravating circumstances proven beyond a reasonable doubt outweigh the mitigating circumstances beyond a reasonable doubt. See, 21 O.S.1991, § 701.11 If the sentencer does not hear the mitigating evidence, it cannot discharge its statutory duty. A reliable capital sentencing trial requires an individualized determination on the basis of the character of the individual and the circumstances of the crime. Therefore, the sentencer should hear and consider all relevant testimony and evidence in mitigation of punishment. Such a procedure not only protects the interests of the accused, but also protects the interests of the State of Oklahoma to enact and enforce a constitutional death penalty scheme.
As Judge Knight recognized in this case, his responsibilities were much broader than Appellant’s wishes, and the imposition of the death penalty would be authorized only if, as here, the court satisfied itself 1) that the existence of at least one statutory aggravating circumstance was proven beyond a reasonable doubt, and 2) considering all the facts and circumstances presented to the court, the death sentence was the appropriate punishment. 21 O.S.1991, § 701.11.
In view of the concern for reliability inherent in our death penalty procedures, including the mandatory sentence review by this Court, see 21 O.S.1991, § 701.13(C), the trial court in a case like this has an obligation to conduct an independent investigation into the possible existence of evidence in mitigation. Oftentimes, mitigating evidence such as youth, bouts of mental illness and substance abuse will be apparent from the record without a defendant supplying such information. The trial court here undertook to inform itself about Wallace’s background and evidence of mitigation by ordering a pre-sen-tence investigation report prior to sentencing. 2 Even though Judge Knight was under no obligation to order a pre-sentence investigation report, he wisely did so. The report contained mitigating evidence for the judge to consider. The record reflects Judge Knight considered the mitigating evidence and found that the aggravating eircum- *521 stances outweighed the mitigating circumstances found beyond a reasonable doubt. Thus, no error occurred in this case when the death penalty was imposed.
. Title 21 O.S.1991, § 701.10(C) provides in pertinent part:
In the sentencing proceeding, evidence may be presented as to any mitigating circumstances
. Clearly, under the language of 22 O.S.1991, § 982, the trial court was under no statutory obligation to order such an investigative report.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9617434. Public record. Not legal advice.