# Harjo v. State

> Court of Criminal Appeals of Oklahoma · December 9, 1994 · 882 P.2d 1067

URL: https://www.frixlaw.com/law-library/cases/9855134

## Case

- **Full name:** Jerald Wayne HARJO, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** December 9, 1994
- **Citations:** 882 P.2d 1067; 1994 WL 376120
- **Precedential status:** Published
- **Opinion:** Dissent by Lane
- **Judges:** Lumpkin, Johnson, Strubhar, Lane, Chapel
- **Cited by:** 43 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/9855134

## Opinion text

LANE, Judge,
dissenting.
When the State seeks the death penalty it bears the burden to prove each asserted aggravating factor beyond a reasonable doubt. 22 O.S.1981, § 701.11. I must dissent to that part of the majority opinion which finds sufficient evidence to support the aggravating circumstance, “especially heinous atrocious or cruel” and which affirms the sentence of death. I believe the evidence is not sufficient to support this aggravating circumstance, and I would reverse the sentence and remand for resentencing.
I begin with the clear understanding that not all murders warrant the death penalty. The Eighth Amendment requires this ultimate penalty to be applied only to that class of murders which is most egregious. Maynard v. Cartright, 486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980); Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972).
When I search for a principled application of the law in this most difficult area, I recognize certain unchanging factors. All murder is accomplished by physical abuse of some kind. Almost all persons in apprehension of death, whether natural, accidental or homicidal, struggle in some way as death overtakes them. From a societal point of view I recognize the communities of this state are confronted all too often with senseless murders, particularly of our older citizens. These murders offend the framework of our social order in a most fundamental way and most seriously test our resolve to apply the law of capital murder in a principled and constitutional manner.
The “especially heinous, atrocious and cruel” aggravating factor has been considered thoroughly by three appellate courts: the court of last resort for criminal matters in this state: the Oklahoma Court of Criminal Appeals, the Tenth Circuit Court of Appeals, and the ultimate court of last resort: the United States Supreme Court. See, Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987); Maynard v. Cartwright, 486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988); Stouffer v. State, 742 P.2d 562 (Okl.Cr.1987); Foster v. State, 779 P.2d 591 (Okl.Cr.1989); Battenfield v. State, 816 P.2d 555 (Okl.Cr.1991). Each court recognizes there exists within this aggravating factor a great potential for abuse. This is so for every murder is at some level heinous, atrocious or cruel. The potential for abuse of this factor is so *1084 great that its own integral limitation to those murders which are especially heinous, atrocious or cruel is not sufficient to channel the jury’s discretion within constitutional bounds. Cartwright, 486 U.S. at 363-364 ; 108 S.Ct. at 1869 .
Limitation sufficient to satisfy the rigors of the Eighth Amendment was articulated by this Court in Stouffer v. State, 742 P.2d 562 (Okl.Cr.1987). This factor may be considered by the jury only if the jury first finds the murder was accomplished through torture or serious physical abuse. Stouffer, 742 P.2d at 563 (Opinion on Rehearing), cert. denied 484 U.S. 1036 , 108 S.Ct. 763 , 98 L.Ed.2d 779 (1988); see also Foster v. State, 779 P.2d 591, 593 (Okl.Cr.1989) cert. denied 497 U.S. 1032 , 110 S.Ct. 3293 , 111 L.Ed.2d 801 (1990); Battenfield v. State, 816 P.2d 555, 565 (Okl.Cr.1991).
The carefully chosen terms, “torture or serious physical abuse”, will effectively channel jury discretion only if this Court holds the levee against the ever present flood of human emotion. All channeling effectiveness of the term “serious physical abuse” will be lost if it’s application is liberalized to include any physical abuse. Well defined constraint is thus the keystone to constitutionality.
As we have been called upon to examine the condition of “serious physical abuse”, we have found it to be supported by facts revealing the manner of killing, the killer’s attitude, and the suffering of the victim. See Nuckols v. State, 690 P.2d 463 (Okl.Cr.1984); Williamson v. State, 812 P.2d 384 (Okl.Cr.1991). Of central importance to the constitutionality of the death penalty in Oklahoma, is the fact that in no case has this Court approved the finding of serious physical abuse in the absence of gratuitous violence — acts of injury or cruelty beyond the scope of the act of killing itself. But even gratuitous violence alone will not support this aggravating circumstance. Only gratuitous violence which causes conscious suffering by the victim will support a finding that the murder was especially heinous, atrocious or cruel. This is perhaps best illustrated by Battenfield v. State, 816 P.2d 555 (Okl.Cr.1991), reh’g denied 826 P.2d 612 , cert. denied — U.S. —, 112 S.Ct. 1491 , 117 L.Ed.2d 632 (1992).
Review of capital murder jurisprudence in this State makes clear to me that “manner of killing” refers to acts of gratuitous violence and not per se to the mode of killing. In the present case the appellant strangled and suffocated Mrs. Porter with his bare hands. Two recent cases in which this Court affirmed the finding of serious physical abuse in murder by strangulation provide important contrast to the present case.
In Thomas v. State, 811 P.2d 1337 (Okl.Cr.1991), ce rt. denied, Thomas v. Oklahoma, — U.S. —, 112 S.Ct. 895 , 116 L.Ed.2d 798 (1991) the victim was beaten, then strangled. Her nasal bone and lower jaw were broken; her eye was nearly pushed out of its socket. In Williamson v. State, 812 P.2d 384 (Okl.Cr.1991) the appellant stuffed a washcloth into the victim’s mouth, bruised her body, face and arms, caused small puncture wounds on her face and cuts inside her mouth and lips. He also shoved a bottle cap inside her rectum. These strangulation murders were committed in a manner including gratuitous acts of violence and cruelty. These murders warranted a finding of serious physical abuse sufficient for the jury to consider the aggravating factor “heinous, atrocious or cruel”. They are categorically distinct from the murder in this case.
There is no doubt the victim in this ease suffered physical abuse. She was suffocated with her pillow and strangled by hand. She sustained minor scratches and bruises on her face, chest, arms and vaginal area. Her lower denture was displaced; her windpipe crushed. The record is devoid of any evidence regarding conscious pain, but common human experience allows one to infer this woman, who was awake and conscious at some point during the attack, had apprehension of death. The appellant confessed she struggled. 1
*1085 There is no doubt the circumstances surrounding this murder make it heinous. A grandmother was awakened and strangled to death by a young man who wanted to steal her car. The evidence supports the fair inference she had a conscious awareness that her life was being taken. This case evokes a flood of human emotion.
Standing against this understandable flood are the constitutions of this state and nation. Before a jury may find a murder is “especially heinous, atrocious or cruel”, the evidence must allow it to find the murder was preceded by torture or serious physical abuse. When I compare this case with those in which serious physical abuse has been found, I am convinced the evidence does not support such a finding by the jury. I believe the majority’s holding to the contrary liberalizes death qualification to include any murder by suffocation or strangulation and places Oklahoma again in the unacceptable position criticized and condemned by Cartwright. 486 U.S. at 363 , 108 S.Ct. at 1895 .
Having found one aggravating circumstance to be invalid I would reweigh the remaining aggravating factor, “to avoid arrest or prosecution”, to determine whether it outweighs the mitigating evidence to support the death penalty. Stout v. State, 817 P.2d 737 (Okl.Cr.1991); Nguyen v. State, 769 P.2d 167 (Okl.Cr.1988); Castro v. State, 749 P.2d 1146 (Okl.Cr.1987). Given the negligible import placed on this aggravating factor by the prosecutor in the context of trial, I cannot find beyond a reasonable doubt this factor would support the death penalty without the additional and substantial weight of the invalid finding the murder was especially heinous, atrocious or cruel. By the same token, I am unable to state that the jury would not have imposed the death penalty based on the remaining aggravate alone. I would therefore reverse and remand the death sentence to the trial court for resentencing. Stout v. State, 817 P.2d at 739 ; 21 O.S.Supp.1989, § 701.10a.
I am authorized to state Judge CHAPEL joins in this dissent.
. The record is devoid of any evidence regarding pain endured by Mrs. Porter. The majority makes much of the fact appellant singed the victim’s pubic hair. The evidence is controverted as to whether this singeing occurred before or after death. Appellant confessed he did this after Mrs. Porter died. The medical examiner testified it occurred prior to death. Unfortunately the *1085 issue was not developed by cross-examination, so we are not told how the medical examiner could know whether the singeing occurred pre or post mortem. There was no evidence of singed skin and thus pain experienced by the victim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855134. Public record. Not legal advice.