finding any error waived when neither party's attorney objected to the trial court allowing the jury to separate, and go unattended into the hall or downstairs to smoke, during a ten minute break ordered after the case had been submitted to the jury but before they retired to the jury room for deliberations
How later courts described this case
- finding any error waived when neither party's attorney objected to the trial court allowing the jury to separate, and go unattended into the hall or downstairs to smoke, during a ten minute break ordered after the case had been submitted to the jury but before they retired to the jury room for deliberations
- reasoning that robbery and murder can be contemporaneous and that evidence may be sufficient to support a finding that a murder was committed to avoid arrest or prosecution
- reaffirming principle that jury must, on request, be asked life-qualifying questions, Court held no error in trial court's failure to remove jurors who indicated they might automatically impose death penalty
- finding the phrase “the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” is clear and does not require further definition
Written by the judges who cited it.
The opinion
LUMPKIN,
Vice-Presiding Judge: Concur in Result.
11 I concur in the Court's decision to affirm the judgment and sentence in this case. However, I write to address what I believe should be the analysis in two of the propositions of error.
T2 In the Court's analysis of Proposition TII, it fails to point out Appellant is attempting to raise the issue of marital privilege for the first time on appeal. He failed to raise any objection at trial to what he now alleges were confidential marital communications. Failure to object waives the issue and Appellant has failed to show the admission of the testimony constitutes plain error. - See Simpson v. State, 876 P.2d 690 (Ok1.Cr.1994). In addition, the actions of Michelle Wackerly were - not - communications/conversations which would fall within the marital privilege. *20 She would have been able to testify as to what she observed regardless of whether the privilege had been claimed or not. See Coleman v. State, 668 P.2d 1126, 1134 (Okl.Cr.1983). See also 2 L. Whinery, Oklahoma Evidence: Commentary on the Law of Evidence, § 838.05 (1994). For these reasons, I agree Proposition III is without merit.
¶ 3 Appellant alleges ineffective assistance of counsel in Proposition XIV. This Court has consistently applied the two pronged test set out in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), in adjudicating whether counsel was ineffective. In explaining the prejudice prong of Strickland, this Court has previously relied on Lockhart v. Fretwell, 506 U.S. 364, 369-70 , 113 S.Ct. 838, 842-43 , 122 L.Ed.2d 180, 189 (1993) to the extent that an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. Our reliance upon Lockhart's analysis into the fundamental fairness of the trial to explain one prong of the Strickland test was based upon language from Strickland that "[the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," 466 U.S. at 686 , 104 S.Ct. at 2064 , and "[slecond, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 466 U.S. at 694 , 104 S.Ct. at 2064 . However, recently in Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000), the Supreme Court backed away from its emphasis on the fundamental fairness of the trial when analyzing prejudice. The Court stated that an analysis of the prejudice prong was to focus solely on whether there was a reasonable probability that but for counsel's unprofessional errors, the rest of the proceeding would have been different,. Id. at 120 S.Ct. 1495 . Therefore, pursuant to Williams, our analysis of an ineffective assistance of counsel claim is appropriately based solely upon the two prong test set forth in Strickland, and our prejudice determination is based upon whether the outcome of the trial would have been different but for counsel's unprofessional errors.
$4 The Court's discussion of Proposition VII is somewhat inherently inconsistent and fails to apply the proper standard of review. This record presents both direct and cireum-stantial evidence both as to the crime itself and the proof of the aggravating circumstances found by the jury. As to the erime itself, I have previously stated this Court should adopt a unified Spuehler-type approach to evaluating the sufficiency of the evidence in all cases, whether they contain both direct and cireumstantial evidence, or whether they contain entirely cireumstantial evidence. See White v. State, 900 P.2d 982, 993-94 (Okl.Cr.1995) (Lumpkin, J., specially concurring). However, "[when the sufficiency of the evidence of an aggravating cireum-stance is challenged on appeal, the proper test is whether there was any competent evidence to support the State's charge that the aggravating circumstance existed." Romano v. State, 847 P.2d 368, 387 (Okl.Cr.1998). "In making this determination, this Court should view the evidence in the light most favorable to the State." Id. Applying the proper test the evidence is sufficient to support the finding of the jury as to each of the aggravators.