holding that evidence was insufficient to support this aggravator where sleeping victim received three shots, one of which would have resulted in instantaneous death, and medical examiner could not determine the order in which killer inflicted these wounds
How later courts described this case
- holding that evidence was insufficient to support this aggravator where sleeping victim received three shots, one of which would have resulted in instantaneous death, and medical examiner could not determine the order in which killer inflicted these wounds
- noting that the victim "was shot approximately three times while asleep," "[t]he injuries caused by two of the shots could have been fatal," and one of those shots "would have caused death nearly instantaneously."
- holding witness's prior consistent statement could not be admitted to bolster credibility of witness when witness had not been impeached
- witness statements were made spontaneously upon waking the morning after crime and there was no time for reflection
Written by the judges who cited it.
The opinion
LUMPKIN, Judge:
concurring in results.
I concur in the results reached by the Court in its decision to reverse and remand this case for a new trial. However, I am concerned about generalized statements and misapplication of case authority to the facts of this case.
In the first proposition of error, the Court mistakenly seeks to apply the provisions of Hunter v. State, 829 P.2d 64 (Okl.Cr.1992), to the facts of this case. The issue of notice of Bill of Particulars arose in April, 1988. The Court adopted the provisions of Hunter in 1992 and adopted those provisions as to future cases. Therefore, Hunter had no retroactive application to the facts of this case.
The Court seeks to inflict some type of subjective analysis of when notification of Bill of Particulars should be made, based on when a District Attorney “knew” he was *988 going to ask for the death penalty. I do not believe the Court truly intends to adopt such subjective methodology to determine when a Bill of Particulars should be filed as indicated by the verbiage used in the opinion. The analysis, which should be applied to the facts of this ease, is whether at the time the decision was made not to grant the request for continuance, the notice of seeking the death penalty by the filing of the Bill of Particulars was “reasonable” and whether the Court abused its discretion in failing to give the defendant in this case adequate time to prepare against the seeking of the death penalty. This Court’s past analysis has centered on sufficient notice to afford an opportunity to prepare a defense.
In Hunter , this Court sought to establish a finite time in which a Bill of Particulars must be filed in order to ensure adequate preparation prior to trial. It was deemed as to all future cases the Bill of Particulars must be filed on or before the date of formal arraignment, unless ordered otherwise by the trial court. The establishment of that finite time to allow for objective determination of whether the Bill of Particulars was filed in a timely manner in no way determined how soon the trial could be held after formal arraignment.
The facts in this case reveal the law enforcement officers emphasized the benefits of cooperation by the defendant could result in the District Attorney not filing a Bill of Particulars. These facts go to the determination of whether or not it was reasonable to deny the motion for continuance in order to prepare for the trial of a capital case within the time frame afforded. I agree that under the facts of this case, the eighteen-day period was not reasonable to allow for proper preparation.
I agree with the Court the issue relating to Appellant’s statement to law enforcement officers must be analyzed based on a determination of violation of the Sixth Amendment to the United States Constitution, rather than the Fifth Amendment. Conducting my own analysis, I find the admission of these statements had an impact on the jury’s verdict, and were therefore not harmless beyond a reasonable doubt. Accordingly, I concur in result.