Hanson v. State

LUMPKIN, Judge:

concurs in results.

1 I agree with Judge Lile's separate vote and join in his writing. In addition, I do not find the record factually supports the state *56 ments the Opinion makes about Juror D. MceNeil,

T2 Furthermore, the Opinion's statement that "Hanson need only show that the juror was unacceptable because he was undesirable to his position," supposedly supported by Thompson v. State, 1974 OK CR 15 , 519 P.2d 538 , is a misstatement of the law. Thompson cites to Fennell v. State, 1964 OK Cr 107, 396 P.2d 889 as an example of a case where the defendant did not exhaust all of his peremptory challenges "... and was thereby precluded from removing a prospective juror from the panel, whom he considered to be undesirable to his position." - Thompson, 519 P.2d at 541 . (emphasis added.) This statement is mere dicta, is not part of Thompson's holding, and is therefore not the law. The actual rule of law regarding error on the challenge of a juror for cause was stated by this Court in Patton v. State, 1998 OK CR 66 , 973 P.2d 270 , 288:

The decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion. Allen v. State, 862 P.2d 487, 491 (Ok1.Cr.1998), cert. denied, 511 U.S. 1075 , 114 S.Ct. 1657 , 128 L.Ed.2d 375 (1994). The trial court's decision will not be overturned unless an abuse of discretion is shown. Id.

Here, the trial court did not abuse its discretion. Even if the challenge for cause should have been granted, Appellant has failed to demonstrate he was forced, over objection, to keep an unacceptable juror. Warner v. State, 2001 OK CR 11 , 29 P.8d 569, 574. However, I agree the failure to allow the defense counsel's questions, designed to determine if prospective jurors would automatically impose the death penalty, deprives this Court with the record it needs to ensure, in fact, there was not an unacceptable juror remaining on the panel. The term table" means a juror who cannot be fair and impartial.

T 3 I also disagree with some of the syntax in the discussion of proposition one. The Opinion states, "This Court does not have a sufficient record before us to determine whether Hanson correctly claims this evidence was admissible." From there, the Opinion goes on to discuss the test for admissibility of scientific evidence without pointing out it is the Appellant's duty to provide a sufficient record for this Court to review. If the trial court denies testimony of a witness or admission of an exhibit, it is the responsibility of the party offering the testimony or evidence to ensure a sufficient record is made to allow this Court to review the issue on appeal. This can be accomplished by requesting and conducting an in camera hearing to present the evidence for the ree-ord or through an offer of proof of sufficient specificity to provide this Court with what it needs in order to review the claim of error.

1 4 Furthermore, such evidence or testimony must be specifically applicable to the defendant on trial, not general statistics applicable to some larger, amorphous group of people who are not on trial. Here, the ree-ord is void of how the proposed evidence relates directly to Appellant or is applicable to his individualized sentence. Seq, eg., Fitzgerald v. State, 2002 OK CR 31 , 61 P.3d 901, 904-05 (expert correctly prohibited from testifying because risk assessment was not performed on defendant); Hooker v. State, 1994 OK CR 75 , 887 P.2d 1851 , 1867 (defense expert properly prohibited from testifying to opinions not individualized to the defendant or his crime). I cannot agree error exists in the failure to hold a Daubert/Kumho hearing, where Appellant failed to establish the relevancy of his proffered witness's testimony to the Court.

15 Additionally, I disagree with the Opinion's statement in Proposition XI, concerning the failure of the Court to specifically list proposed mitigating factors, that "consequently, the jury was not instructed on all the mitigating cireumstances supported by the evidence." It is not automatic error when a judge fails to specifically list every possible mitigating factor, even those supported by the evidence. That is why we have OUJI-CR (2d) 4-79. 1 Jurors are not limited in their consideration of mitigation factors to *57 only those specifically listed. As triers of fact, they determine what is and what is not mitigating, regardless of whether or not it is listed. Defense counsel is free to argue any and all of the evidence presented as mitigating, but the jury is ultimately free to decide the issue. Here, any error in the trial judge's list of mitigating factors was not an abuse of discretion and was, in my opinion, harmless.

. This point is made clear in the notes on use to OUJI-CR (2d) 4-79, which says the trial judge "should" instruct in the jury on any other mitigating circumstances for which evidence has been introduced. Obviously, this decision will be discretionary, as different trial judge's would *57 surely have differences of opinion regarding what is or what is not mitigating. Furthermore, several mitigating ideas may be combined into one broad statement or separated into very specific statements. The point is that the judge's decision on mitigating evidence is discretionary and should be reviewed only for an abuse of discretion.