# Powell v. State > Court of Criminal Appeals of Oklahoma · February 2, 2000 · 995 P.2d 510 URL: https://www.frixlaw.com/law-library/cases/9853887 ## Case - **Full name:** Paris Lapriest POWELL, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** February 2, 2000 - **Citations:** 995 P.2d 510; 2000 OK CR 5; 2000 Okla. Crim. App. LEXIS 5; 2000 WL 122170 - **Precedential status:** Published - **Opinion:** Dissent by Chapel - **Judges:** Lumpkin, Vice-Presiding, Johnson, Lile, Strubhar, Chapel - **Cited by:** 39 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/9853887 ## How later opinions describe it (automated extraction) - finding no error where prosecutor made legal arguments as to why mitigating cireum- *244 stances listed in the jury instructions should not be considered as reducing blame because jury was not precluded from considering as mitigating factor, any aspect of defendant's character… - finding no error where prosecutor made legal arguments as to why mitigating circumstances listed in the jury instructions should not be considered as reducing blame because jury was not precluded from considering, as a mitigating factor, any aspect of defendant's character or … ## Opinion text CHAPEL, Judge, Dissenting: ¶ 1 I would affirm neither the conviction nor the death sentence in this case. Four separate problems in first and second stages require reversal. First, Powell should have received an instruction on second degree felony murder. We recently determined that the jury should be instructed on all lesser forms of homicide supported by the evidence. 1 Powell drove a car used in a drive-by shooting. Although the majority dismisses this proposition by claiming Powell, Douglas and a third person shot at the victims, the record does not clearly show Powell did anything more than drive, and he was tried on an aiding and abetting theory. Some evidence supports Powell’s claim that he neither shot anyone nor intended to kill. Under these circumstances, the jury should have been instructed on second degree felony murder. For this reason, I would not affirm Powell’s conviction for first degree murder. ¶ 2 In second stage, I cannot overlook the prosecutor’s attempts to inflame the jury and diminish the jury’s sense of responsibility in imposing the death sentence. As the majority notes, this same prosecutor was previously admonished not to argue that the victim was dead while the defendant slept on clean sheets and ate daily meals; this Court re *543 fused to condone this argument. 2 The majority admits the prosecutor apparently chose to ignore this Court’s explicit warning not to repeat the mistake, but once again fails to attach any consequence to the prosecutor’s decision. I believe we should no longer let this error pass. In addition, the prosecutor told the jury it didn’t decide to execute the judgment, only whether Powell deserved death. I agree with the majority that this comes “dangerously close” to violating Caldwell v. Mississippi. 3 In fact, it does violate that case’s prohibition against telling the jury that they are not responsible for determining the appropriateness of a death sentence. I see no significant difference between telling a jury an appellate court will make the final decision and telling them someone else will decide to actually kill the defendant once the jury so recommends. ¶3 Once again the majority chooses to disregard the issues raised by the jury’s explicit question regarding the meaning of life without the possibility of parole. I have consistently stated that the jury should be informed of the meaning of life without parole. 4 Our error in failing to require this instruction has, in my judgment, resulted in death sentences for many who would otherwise have received the life without parole sentence. ¶ 4 Finally, I am disturbed by the implications of Powell’s death sentence. Powell was tried as an aider and abettor, and the State did not explicitly argue that he personally shot or killed either victim. Before Powell can be eligible for the death penalty, I believe there must be some finding either that he had the specific intent to kill or exhibited reckless disregard or indifference to the value of human life. 5 The majority’s facile discussion of this issue focuses on the fact that this was a prosecution for malice murder without mentioning that, as an aider and abettor, Powell himself was not required to share the “malice,” or specific intent to kill, that might otherwise remove the need for a finding of personal culpability. The jury was only asked to find Powell aided and abetted someone who shot the victim with malice aforethought, not that Powell himself intended to kill. Under these circumstances I believe the jury should have been instructed to determine Powell’s level of personal culpability before it could find him eligible to receive the death penalty. . Shrum v. State, 1999 OK CR 41 , 991 P.2d 1032 . . Duckett v. State, 1995 OK CR 61 , 919 P.2d 7, 19 , cert. denied, 519 U.S. 1131 , 117 S.Ct. 991 , 136 L.Ed.2d 872 (1997). . 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985). . See, e.g., Ochoa v. State, 1998 OK CR 41 , 963 P.2d 583 , 605 n. 100. cert. denied, 526 U.S. 1023 , 119 S.Ct. 1263 , 143 L.Ed.2d 358 (1999); Mollett v. State, 1997 OK CR 28 , 939 P.2d 1, 15 , cert. denied, 522 U.S. 1079 , 118 S.Ct. 859 , 139 L.Ed.2d 758 (1998) (Chapel, J., concurring in result); Johnson v. State, 1996 OK CR 36 , 928 P.2d 309, 321 (Chapel, J., specially concurring); Smallwood v. State, 1995 OK CR 60 , 907 P.2d 217, 239 , cert. denied, 519 U.S. 980 , 117 S.Ct. 431 , 136 L.Ed.2d 330 (1996) (Chapel, J., specially concurring); McGregor v. State, 1994 OK CR 71 , 885 P.2d 1366 , 1383 n. 59, cert. denied, 516 U.S. 827 , 116 S.Ct. 95 , 133 L.Ed.2d 50 (1995) (concurring by reason of stare decisis'). .Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987). These cases set forth the minimum findings of intent or personal culpability necessary before capital punishment may be imposed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9853887. Public record. Not legal advice.