Petition — Williams v. Oklahoma

Supreme Court brief1976

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

75-6639

i No.

BOBBY JOE WILLIAMS and

ALLEN CLAYBURN JUSTUS,

Petitioners,

THEE STATE OF CKLAHOMA,

Respondent.

| PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF CRIMINAL APPEALS OF THE STATE OF

OKLAHOMA

DONALD ANDERSON

Office of the Public Defender

Oklahoma County Courthouse

Oklahoma City, Oklahoma 73102

RICHARD L. WELDON

1 Suite 630 Leonhardt Building

Hy Oklahoma City, Oklahoma 73102

JACK GREENBERG

JAMES M. NABRIT, III

PEGGY C. DAVIS

DAVID E. KENDALL

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

i Stanford, California 94305

ATTORNEYS FOR PETITIONERS

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CUSSED 6006+ 66sbbbbeec 6be08b bb we eeesoseeuelaeut 2

GURSRSSNS TOGSUNBES 10s cccdus ccecdcncsdbvnccescsecaces 2

Constitutional and Statutory Provisions Involved...... 4

Statement eereereeeeeeereeeeeeeeeeree een eeeeeeeeeeeeeeeeee

How the Federal Questions were Raised and Decided

Reasons for Granting the Writ

II.

IIl.

Iv.

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THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE POST FACTO IN-

VALIDATION OF A STATUTORY PROVISION

EMPOWERING AN APPELLATE COURT TO CON-

DUCT AN EVIDENTIARY HEARING AND THERE-

AFTER TO REDUCE THE DEATH PENALTY

IMPOSED FOR THE CRIME OF FIRST DEGREE

MURDER VIOLATES ARTICLE I, SECTION 10

OF THE CONSTITUTION OR THE FOURTEENTH

AMENDMENT, WHERE THE EFFECT OF SUCH

AN INVALIDATION IS TO SUBJECT A CRIMINAL

DEFENDANT TO AN IRREDUCIBLE DEATH SEN-

TENCE THAT WAS NOT AUTHORIZED BY LAW AT

THE TIME OF HIS OFFENSE........cccccccccces

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE IMPOSITION AND

CARRYING OUT OF THE SENTENCE OF DEATH

FOR THE CRIME OF FIRST DEGREE MURDER

UNDER THE LAW OF OKLAHOMA VIOLATES THE

EIGHTH OR FOURTEENTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES..........

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE EXCLUSION FOR

CAUSE OF VENIREMEN ON THE GROUND OF

THEIR EXPRESSED ATTITUDES TOWARD THE

DEATH PENALTY VIOLATED PETITIONERS'

RIGHTS UNDER THE SIXTH AND FOURTEENTE

AMENDMENTS TO THE CONSTITUTION OF THE

UNITED Ps 646 660556660600060666666606ee000%

THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER PETITIONER WILLIAMS

WAS DEPRIVED OF DUE PROCESS OF LAW BY

THE ADMISSION, FOR CONSIDERATION OF THE

JURY, OF STATEMENTS AS TO WHICH AN

—

Page

iV. Cont'd.

INDEPENDENT DETERMINATION OF VOLUNTARI-

NESS HAD BEEN REQUESTED BUT HAD NOT BEEN

MADE ef fe eee © © re rf ef eeneeneteenteereeneeeee#ee#ee#ee#e#e ref ef #8 © 27

CONCLUSION erin eeneeesee eeeeeee#eee#e#e#e#e ene ereeneenene © & @& rv ef eee 30

TABLE OF CASES

Forcella and Funicello v. State, 52

N.J. 263,

Funicello v.

948 (1971)

Green v.

Hovila v.

No. 49,396 (April 30,

Jackson v.

Justus v.

1975)

App.

Owens Vv.

(1975)

People v. District Court, Col.

27078

No.

Sims v. Georgia,

State -v.

2d 817

State v.

(1974)

State v.

10,159

Williams

Witherspoon v.

(1968)

245 A.2d 181 (1968) ........

New Jersey, 403 U.S.

Oklahoma, No.

State, Tex. Ct. Crim. App.

1975)

Denno, 378 U.S. 368 (1963)

State, 542 P.2d 598 (Okla. Cr.

State, _Ga.__,214 S.E.2d 173

(March ll, 1976)

365 U.S. 538 (1966) ...

285 N.C. 256, 204 S.E.

Britt,

(1974)

Noell, 284 N.C. 670, 202 S.E. 750

Trivitt,

(Feb. 17,

New Mexico Sup. Ct. No.

1976)

v. State, 542 P.2d 554

Illinois, 391 U.S. 510

SD WiBO. GBI «sc ncnccccccessvcseces

21 Okla.

Stat. Ann. §701.1 (1975-76 Supp.)

Stat. Ann. §701.3 (1975-76 Supp.)

Stat. Ann. §701.5 (1975-76 Supp.)

Stat. Ann. §701.6 (1975-76 Supp.)

27,28

18,19,22

16,21

19,20,21,22,23,26

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1975

No.

BOBBY JOE WILLIAMS and

ALLEN CLAYBURN JUSTUS,

Petitioners,

THE STATE OF OKLAHOMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF

CRIMINAL APPEALS OF THE STATE OF

OKLAHOMA.

Petitioners pray that a writ of certiorari issue to

review the judgment of the Court of Criminal Appeals of the State.

of Oklahoma entered September 17, 1975.

CITATION TO OPINION BELOW

The opinion of the Court of Criminal Appeals of the

State of Oklahoma is reported at 542 P.2d 554 (Okla. Cr. App.

1975) and is set out as Appendix A hereto, pp. 1 - 44, infra.

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C.

‘| §1257 (3), petitioners having asserted below and asserting here

deprivation of rights secured by the Constitution of the United

| States.

The opinion below was reaffirmed on rehearing on

November 25, 1975. The time within which a petition for certi-

it orari might be filed was extended by order of Mr. Justice White,

dated February 17, 1976, to March 24, 1976, and further extended

by order of Mr. Justice White, dated March 15, 1976, to April 23,

1976.

QUESTIONS PRESENTED

l. Does the post facto invalidation of a statutory

provision empowering an appellate court to conduct an evidentiary

hearing and thereafter to reduce the death penalty imposed for

the crime of first degree murder violate Article I, Section 10

' of the Constitution or the Fourteenth Amendment, where the effect

of such an invalidation is to subject a criminal defe jiant to an

irreducible death sentence that was not authorized by law at the

' time of his offense?

2. Does the imposition anc ce-rying out of the sen-

tence of death for the crime of first degree murder under the

law of Oklahoma violate the Eighth or Fourteenth Amendment to

the Constitution of the United States?

3. Did the exclusion for cause of venirement on the

ground of expressed attitudes toward the death penalty violate

petitioners' rights under the Sixth or Fourteenth Amendment to

the Constitution of the United States?

—

4. Was petitioner Williams deprived of due process

of law by the admission, for consideration of the jury, of

statements as to which en independent determination of voluntari-

ness had been requested, but had not been made.

—

CONSTITUTIONAL AND STATUTORY

——PROVISIONS INVOLVED

This case involves the Fifth, Sixth, Eighth and

Fourteenth Amendments to the Constitution of the United States

and the Ex Post Facto Clause of Article I, Section 10 of the

Constitution of the United States.

This case also involves the following provisions

of Oklahoma law:

21 Okla. Stat. Ann. §701.1 (1975-76 Supp.)

“Murder in the first degree.

“Homicide, when perpetrated without authority of

law and with a premeditated design to effect the death

of the person killed, or of any other human being, is

murder in the first degree in the following cases:

"1. When perpetrated against any peace

officer, prosecuting attorney, corrections em-

ployee or fireman while engaged in the perform-

ance of his official duties;

"2. When perpetrated by one committing or

attempting to commit rape, kidnapping for the

purpose of extortion, arson in the first degree,

armed robbery or when death occurs following

the sexual molestation of a child under the age

of sixteen (16) years;

“3. When perpetrated against any witness

subpoenaed to testify at any preliminary hearing,

trial or grand jury proceeding against the de-

fendant who kills or procures the killing or

the witness, or when perpetrated against any

human being while intending to kill such witness;

"4. When perpetrated -gainst the President

or Vice President of the United States of

America, any official in the line of succession

to the Presidency of the United State. of

America, the Governor or Lieutenant Governor

of this state, a judge of any appellate court

or court record of this state, or any person

actively engaged in a campaign for the office

of the Presidency or Vice Presidency of the

United States of America;

"S. When perpetrated by any person engaged

in the pirating of an aircraft, train, bus or

other commercial vehicle for hire which regularly

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transports passengers;

"6. When perpetrated by a person who effects |

the death of a human being in exchange for money

or any other thing of value, or by the person

procuring the killing;

"7. Murder by a person under a sentence of

life imprisonment in the penitentiary;

"8. When perpetrated against two or more

persons arising out of the same transaction or

occurrence or series of events closely related

in time and location;

"9. When perpetrated against a child while

in violation of Section 843, Title 21 of Oklahoma

Statutes; and

"10. Intentional murder by the unlawful and

malicious use of a bomb or of any similar ex-

plosive."

21 Okla. Stat. Ann. §701.3 (1975-76 Supp.)

“Punishment for murder in the first degree

-- Instructions regarding lesser and included

offenses.

"Every person convicted of murder in the

first degree shall suffer death. In the case of

a jury trial, the jury shall determine only

whether the defendant is guilty or not guilty of

murder in the first degree and upon a finding of

guilty shall so indicate on their verdict and

state affirmatively in their verdict that the

defendant shall suffer death. In a case where

a jury trial is waived, and the case is tried

to the court, or upon a plea of guilty to the

court, upon a finding by the court that the de-

fendant is guilty of murder in the first degree,

the court shall enter a judgment and sentence

of death. In a jury trial for murder in the

first degree, nothing in this section shall

preclude the trial judge from instructing the

jury regarding lesser and included offenses and

lesser degrees of homicide if the evidence war-

rants such instructions; but in every instance

where an instruction authorizes the jury to

consider lesser and included offenses and lesser

degrees of homicide, the judge shall state into

the recor2 his reasons for giving the instruc-

tion based upon the evidence adduced at trial."

21 Okla. Stat. Ann. §701.5 (1975-76 Supp.)

“Review of judgment and sentence of death.

“The Court of Criminal Appeals when review-

ing a judgment and sentence of death shall, in

the first instance, determine whether errors

of law occurring at trial require reversal or

modification, but if the Court shall determine

that there are no errors of law in the record

requiring reversal or modification, the Court

shall then convene for the purpose of reviewing

the sentence of death. The Court shall set a

date certain for an evidentiary hearing, the

purpose of which will be to determine if the

sentence of death comports with the principles

of due process and equal protection of the law.

Upon the hearing the Court shall determine

whether the sentence of death was a result of

discrimination based on race, creed, economic

condition, social position, class or sex of the

defendant or any other arbitrary fact; and the

Court shall specifically determine whether the

+ - - : q *? Sic

sentence of death is svbstantiall disproper-

tionate to the penalty imposed in similar cases,

considering both the crime and the defendant."

21 Okla. Stat. Ann. §701.6 (1975-76 Supp.)

“Modification of death sentence.

“Should the Court determine that the sen-

tence of death is discriminatory or is substan-

tially disproportionate to the penalty imposed

in similar cases, considering both the crime

and the defendant, the Court shall modify the

sentence of death to life in the penitentiary

at hard labor."

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STATEMENT

Petitioners were convicted after a jury trial in the

District Court of Oklahoma County of murder during the course of

an armed robbery.

The murder victim, Ms. Cherry Lee Kennedy, had been

operating a convenience store on October 30, 1973. (T.359.)

Officer Adam Knight testified that at 4:30 on the morning of

October 30 he was called to the convenience store where he ob-

served the body of a woman later identified to him as Ms. nenneéy.

(T. 339.) He also observed that the cash register was open and

empty of money. ‘'T.341.) The supervisor of the store testified

that © aaeapaceimatats £14 pbwetum Asatlawe amet dare chaarce® ccawe

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missing and that the “normal stock of cigarettes on the counter

was low." (T.361.) Ms. Kennedy had suffered a gunshot wound to

the head, identified as the cause of death, and additional gun-

shot wounds to the shoulder and right temple. (T.417-19.)

A twelve year old boy testified that he had found a

gun by a fence which he took home to his father who called the

, police. (T. 356-57.) Officer Kirby testified that he delivered

the gun to a firearms expert and that he thought the date of

} delivery was October 31. (T.368.) The firearms expert,who had

also received a bullet recovered from the body of the victim

(T.365), testified that the bullet had been fired from the gun

, Which the boy had found. (T.367.)

Hazurison H. Latham testified that he ad sold a gun

on October 20, 1973 to petitioner Williams. (T.344.) He had not

} taken the serial number of the gun or had it registered, but he

: felt able to identify it as the murder weapon because the handle

had been “varnished or shellacked very crudely.”

(T.345.) He

stated that he thought "LA Deputy” was imprinted on the barrel,

but upon inspection he was unable to find it.

properly identified and admitted when a police officer subse-

quently located the imprinted matter.

(T. 406, 416.)

A video tape statement of petitioner Justus was admit-

ted in evidence as well as a signed, written statement of peti-

tioner Williams. The Williams statement, in question and answer

form contained the following admission:

(T.392.)

“Allan Justus and I was sitting by the Fina

Service Station by W.W. 59th and High. I was

going to go in there masked and rob him. But

there was too much traffic. So we decided

not to do it. We were on our way back home

anc i rememseered a store that could be hit.

While we were on cur way we was talking about

it. Allan said that killing someone was the

easiest thing in the world to do and get away

with it. He said if I was to go in the store

unmasked that no one would suspect it was being

robbed. No one would ever know about it be-

cause there wouldn't be any witnesses. We

stopped at the store, I went in, told her to

put the money in the sack, she did so and I was

grabbing some cigarettes with one hand and had

the gun in my left hand, when I was trying to

put the Marlboro cigarettes ir my left hand and

the gun in my right hand, the gun accidentally

went off. I think it shot her and after that

I just started shooting her until it wouldn't

shoot anymore and ran back to the car, we started

gcing down deadend streets and I threw the gun

outside the car and we went home.”

It also contained the information that the proceeds

_ of the robbery had been “about $30." (T.393.)

The transcript of proceedings does not include the

video tape statement of petitioner Justus, but it is accurately

summarized as follows in the opinion below:

“In this video tape statement defendant

Justus was first advised of his rights and then

acknowledged the same by executing a waiver of

The gun was deemed

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rights form. Regarding the subject offense,

he then related that at about 3:30 to 3:45

a.m. on the night thereof, he and defendant

Williams were riding around in the car of

defendant Justus looking for someone, or sc.ue-

thing, to hit when his co-defendant directed

him to Tom's Market. He did not personally

favor this location, but defendant Williams

was familiar with the store and had observed

quite a bit of money there. He parked the car

on the north side of the store with the engine

running and defendant Williams entered the

store with a gun and wearing gloves. While in

the car, he heard four shots, and interjected

that there were not supposed to be any shots

fired but only a robbery. Defendant Williams

then came running out with two cartons of

Marlboro cigarettes and a bag of money, and

said that he had shot her once in the hip and

three times in the face and he was sure she

was dead. While fleeing the neighborhood in

his car, they then kept running into deadend

streets. Defendant Williams asked him what

should be done with the gun, and upon his ad-

vice defendant Williams then wiped the gun and

threw it from the car while he was watching

the road and looking for police cars. They

then drove home and evenly split the money,

estimated at $32.00 plus some change, and each

took one of the two cartons of cigarettes.

When arrested, each defendant had one package

of Marlboro cigarettes, and he stated that

these came from those cartons taken in the

robbery. Defendant Justus further described

and identified the gun used in the robbery,

and explained that he had recommended the gun

to defendant Williams when his co-defendant |

purchased it at a swap meet, and that he there-

after fired the gun in target practice."

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Both petitioners testified regarding the circumstances

under which the statements were taken. Petitioner Williams was

Petitioners were arrested on November 2 (T.229) at 4:30.

p.m. (T.246) outside the home of petitioner Justus (T.274). The

police had been looking for petitioner Williams; petitioner Justus

was only arrested because he was with petitioner Williams (T.248).

The Justus video tape statement was taken on November 3 (T.188)

during a taping session which began at about 6:00 p.m. (T.199) and

lasted until “very late evening or early morning (id.). Two tapes

were taken of each petitioner; one of Ms. Kimbrough and one of Ms.

Justus. (T.198-99.) The written statement of Mr. Williams was

taken on November 5 at 6:35 p.m. (T.262.)

- 9 -

twenty years old. (T.475.) At the time of his arrest he had been

living with Ms. Gayle Kimbrough (id.) who was pregnant (T.494)

and was arrested on the same day together with the wife of

petitioner Justus (T.482,521). He testified that he had not

given the statement; that it was entirely untrue and that he had

signed it because Ms. Kimbrough had been threatened and because

he was promised that he would be released if he did so. He said

that he had asked for a lawyer but was not able to see one until

after the statements were taken. (T.480-81.) He admitted that he

had bought the gun, but said that he had sold it on October 28 or

29 to an Alton Oliver. (T.486.) At the time of his arrest he was

on parole “for embezzlement" (T.499); he had a prior conviction

for riding a stolen car across state lines (T.500). He also

testified that he had overheard Officer Knight say of petitioner

' Justus, “[t]here is a guy I would like to see get shot in the

head." (T.482.)

Petitioner Justus stated that he had been convicted of

forgery and attempted larceny of a motor vehicle and that he had

had a juvenile conviction in 1965. (T.536.) He testified that

shortly prior to petitioners' arrest he lad purchased nine "hits"

of LSD (T.527), amd that he had taken one immediately (T.538).

When he saw the officers in unmarked cars with long antennae

(T.548), he swallowed the remaining eight (T.538). He asked for

a lawyer every time he was questioned but was cold that he would

get one when he got to the county jail. (T.541.) During a perioc |

of interrogation Officer Knight said to him "'You're high, aren't.

you?'" Petitioner denied it, and the officer replied “"'I am not

blind, I can see you pupils.'" (T.542.) He then said "'You're

gonna help me clear up this case.'" (T.543.) When petitioner

- 10 -

Justus denied knowledge of the crime the officer pulled a gun

and “laid it on the table with his hand on it." (Id.) Justus

thought he was hallucinating and laughed, at which point the

officer said "'I assure you this is no joke." (Id.) Petitioner |

Justus then rehearsed the statement. (Id.) He refused to sign

a written statement despite threats that he would be shot “for

escape." (T. 544.) Petitioner Justus testified that he was at

home on the night of the murder (T.545) but that he had been

with petitioner Williams when be bought the gun and when he gave

it to an Alton Oliver (T. 546).

Gayle Kimbrough testified that she had never been

arrested before; that she was threatened and abused by police

officers and that she had signed a statement which she did not

read at the time, but later read and found to be partially

false. (T. 523-25.)

The father of petitioner Justus testified that he was

called by Officer Knight at about midnight on the day of his

son's arrest and asked to come to the police station to talk

with petitioner. (T.553.) He testified that petitioner was

“real glassey-eyed, and his speech was rather slow at times,

and he would roll his eyes back in his head every once in

awhile." (T.554.) He was not able to find a lawyer who would

see his son until after the statements had been taken. (Id.)

The wife of petitioner Justus testified that he had

been with her on the night of the crime (T.557); that she had

been arrested as an “accessory to murder" and questioned by

Officer Knight (T.558-59) and that she had made a statement

in which she said what her husband had told her to say because

he had warned her that if she didn't he would never get out of

jail (T.560). On cross examination she was confronted with a

prior statement in which she had said that she was told by her

husband that petitioner Williams had robbed the store and that

he should not have been with hin.

Mr. Ed McConnel, an attorney who went to see petitioner

Williams on the evening of November 5, testified that Williams

had “a strange look in his eyes" and that “he couldn't under-

stand what he was saying. He didn't make sense at all." (T.514-15

On rebuttal Elizabeth Huff, a police department report

clerk, testified that she had typed petitioner Williams' state-

ment exactly as he had given it. (T. 570-76.) The officer who

had interviewed Ms. Kimbrough denied that he had abused her.

(T.602.) Officer Knight denied that the interview described by

petitioner Justus snaieniadl ed that he had threatened him or

said that he should be shot. (T.590-91.) Officer Guin, one of

the arresting officers, testified that petitioner Justus’ wife

had talked with him “in private" and that he had heard him tell

her to tell the truth. (T. 580, 588-89.) He did not see

petitioner Justus put anything in his mouth at the time of the

arrest. (T.586.) Officer Guinn had previously testified that

2/ At the suppression hearing, Officer Knight testified

that he had shown a gun to petitioner Justus after the taping

and in connection with another homicide: “I had him look at

the chrome plated revolver to see if he knew what a chrome

plated revolver was ... ." (T.231.)

@ 12 «

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)

Justus had agreed to make his statement after being shown a

statement made by petitioner Williams. (T.455.) He had des-

cribed the circumstances of the arrest as follows:

“We had set up surveillance ... saw a blue

Corvair . . . pull into the parking lot. We

saw two men get out .. . We recognized one

+ + + @S Mr. Williams. We saw them going in

toward the apartment complex, we immediately

followed them, got out of our car. It was

about a half a block away when we first saw

them.

We ran to the stairway where they were

ascending at that time. The three of us

pulled out our service revolvers while their

backs were still to us. I told them they were

under arrest, we were police officers.

They immediately turned around and faced

us."

(T.460.) He also said that petitioner Justus stuttered and ap-

peared scared, but didn't appear to be drunk or “under the in-

fluence." (T. 459,463.)

Substantially similar but more detailed testimony

regarding the circumstances of petitioners' arrest and inter-

rogation had been presented at an in camera hearing regarding

the admissibility of the statements. At the conclusion of that

hearing the court made the following ruling with regard to

petitioner Williams' statement:

“It is my understanding cf the law that the

question is: Was it voluntary? And No. 2:

Was it given after being admonished of their

rights in the Miranda decision of the United

States Supreme Court? Now, we have one testi-

mony of the officer and the instrument it-

self, was that they did advise him, that he

was advised. And that he signed it freely,

and voluntarily after the Miranda warning

that he testified that he gave to the Defen-

dant, in the face of the statement itself said

he was advised, plus the fact that Defendant

Williams said himself that he signed the state-

ment.

- 13 -

From the Defendant's point of view of

this statement, they say it was not voluntary,

that he did not read it, he didn't understand

it, he didn't know what he was signing, that

he had signed it to keep this lady, his common-

law wife, and fiance, out of jail, and he

further testified that the lady was married

to someone else.

She cannot be his common-law wife under

the law, she couldn't be his common-law wife

if she's already married to someone else. I

don't know whether you can be a fiance to

somebody else while you are married to another

person or not, I don't know. But I don't think

that is really that material. He has testified

that he didn't understand it, it was against

his will, and so forth. I think that makes it

a question of fact for the Jury to decide: The

voluntary statement, whether it's voluntary or

not. I don't find under the evidence in this

case that as a matter of law, that it is un-

voluntary [sic] statement.

You have a conflict between the statement

itself, testimony of the officer, and the testi-

mony of the Defendant. So I will leave that up

to the Jury to decide as to whether or not under

proper instructions, whether it's voluntary.

If the Jury finds that the statement is not

voluntary, then they will be instructed to dis-

regard it. If they do, under the law as you

gentlemen know, they can consider it. But I

think you have a guestion of fact to be deter-

mined by the Jury, not by the Court."

(T. 308-10.)

The ruling with regard to petitioner Justus’ statement was

"I am going to rule that the test laid down by

the Court of Criminal Appeals is tht the con-

fession is voluntary, and wasn't done after the

proper Miranda warning?

Now, the Court has never distinguished bet-

ween the form of a confession as to whether it

is admissible or inadmissible. Oral confessions

have been admitted, if they pass the test of the

law. Written statements have been admitted. ..

So, I think under those circumstances that

this video tape, State's Exhibit No. 1, meets

- 14 <

—

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the test as laid down by the Court of

Criminal Appeals of this State. I think

it is admissible evidence in this case, and

I will so rule that it is admissible in this

case.

The other part that complies with it,

the same thing. The State has said that

it is voluntary, put on proof to that

affect. The Defendants take the position

that was not voluntary, and it was not true.

These are questions of fact for the Jury to

determine.

These are questions that I am not to pass

on, questions of facts for the Jury to »ass on,

so they will be admitted. ..."

(T.318-19.)

Petitioner Williams’ attempt to introduce a video

tape statement he had given to police officers prior to the

taking of his written statement was denied on the grounds

that it was self serving and its admission would be prejudicial

to petitioner Justus. (T. 470.)

The jury, having been instructed only with regard

to murder in the first degree (T. 626), retired at 5:10 p.m.

(Tr. 706.) Their deliberations were interrupted for a dinner

break (Tr. 709) an@ for a second viewing of petitioner Justus!

statement (T.710). Guilty verdicts fixing the penalty as death

were returned as to both defendants at 8:43 p.m. (T.711.) On

March 29, 1974, each defendant was accordingly sentenced “to

death by electrocution." (Tr. 719, 727.)

Two potential jurors and one potential alternate had

been excused for cause after having said that they were unable

—_—— ee ee

— or doubtful as to their ability — to inflict a death penalty.

(Tr. 25-26, 38-40, 170-171.)

- 18 -

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

On appeal to the Court of Criminal Appeals petitioners

assigned as error and briefed the constitutionality of the death

penalty and of the exclusion for cause of death scrupled jurors.

Both contentions were expressly rejected below. Williams v.

State, 542 P.2d 554, 577-87, 569-70. In addition petitioner

Williams assigned as error and briefed the constitutionality of

the admission in evidence of his statement to the police in the

absence of a prior ruling as to its voluntariness. That con-

tention was also explicitly rejected. Id. at 571-72.

On rehearing, petitioners briefed and argued the con-

i... 4 + & Emm meses am m £ +a eae 7 hee

Om ~- z = =

~ ~ £ Aaah “ kat = a a

i ee a wee Sede i ——s ~~ ha ee ~~ — eee _~ te. ~eerr — -— he

S <

would, in view of the decision of the Court of Criminal Appeals

severing provisions for imposition of an alternate sentence after

a hearing on appeal, violate the ex post facto provisions of the

| Constitution of the United States. This contention was rejected

in an opinion on rehearing. Id. at 596-97.

- 16 -

eee

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER THE POST FACTO

INVALIDATION OF A STATUTORY PROVISION

EMPOWERING AN APPELLATE COURT TO CON-

DUCT AN EVIDENTIARY HEARING AND THERE-

AFTER TO REDUCE THE DEATH PENALTY

IMPOSED FOR THE CRIME OF FIRST DEGREE

MURDER VIOLATES ARTICLE I, SECTION 10

OF THE CONSTITUTION OR THE FOURTEENTH

AMENDMENT, WHERE THE EFFECT OF SUCH

AN INVALIDATION IS TO SUBJECT A CRIMINAL

DEFENDANT TO AN IRREDUCIBLE DEATH SEN-

TENCE THAT WAS NOT AUTHORIZED BY LAW AT

THE TIME OF HIS OFFENSE.

In order to spare the Court repititious argument, peti-

tioners adopt, as to this issue, the reasons set forth at pages

10-20 of the Petition for Certiorari in Green v. Oklahoma, No.

75-6451. The relevant portions of that petition are attached as

Appendix B.

Il.

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE IMPOSITION AND

CARRYING OUT OF THE SENTENCE OF DEATH

FOR THE CRIME OF FIRST DEGREE MURDER

UNDER THE LAW OF OKLAIOMA VIOLATES THE

EIGHTH OR FOURTEENTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES.

Petitioners' contentions that the laws under which they

were convicted and sentenced fail to preclude arbitrary infliction

Y of the death penalty, and that this is so largely because those

laws are excessive, regressive and inconsistent with contemporary

standards of decency, are similarly presented by incorporation of

pages 10-16 and 20-38 of Appendix B.

«= i173 «

IIl

THE COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER THE EXCLUSION

FOR CAUSE OF VENIREMEN ON THE

GROUND OF THEIR EXPRESSED ATTITUDES

TOWARD THE DEATH PENALTY VIOLATED

PETITIONERS’ RIGHTS UNDER THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES.

During the selection of petitioners' jury, three

panel members were excluded because of their expressed

attitudes toward the death penalty. In holding that these

exclusions were not error, the Court of Criminal Appeals relied

upon its holding in Justus v. State, 542 P.2d 598 (Okla. Cr.

App. 1975). Williams v. State, supra, 542 P.2d at 570.

Justus held that “the applicability of Witherspoon is limited

to those cases where, upon conviction for the offense charged,

the jury has discretion to resolve whether the defendant shall

suffer death or some lesser degree of punishment," id. at 603.

The Justus court deemed a state-law "bias" test the appropriate

standard for determining whether veniremen were properly ex-

cluded on account of their death penalty scruples in a capital

case:

“The inapplicability of Witherspoon to the

present case, however, does not mean that

the exclusion for cause of jurors antago-

nistic to capital punishment is without

standard. In such cases, the appropriate

basis for challenge may be for implied bias

or actual bias to the extent that the personal

scruples or opinions of a venireman will not

yield to what the Legislature has determined

to be the law." 3 /

af The court defined this state-law standard

as follows:

“With respect to implied bias, 22 0.S. 1971,

§ 660, provides, in pertinent part:

‘A challenge for implied bias may

be taken for all or any of the

. following cases, and for no other:

** *

oo ee oa

The application of this standard represents a funda-

mental misapplication of Witherspoon v. Illinois, 391 U.S.

510 (1968).

The basic question presented here is the extent to

which the State is empowered to sweep from the jury those

veniremen with conscientious scruples against the death penalty

under capital trial procedures in which the jury does not make

a separate determination of sentence after it has ascertained

guilt. The court below clearly applied a standard, see note 3

supra, which allows the exclusion of veniremen on account of

their feelings concerning the death penalty upon a “broader

basis" than the standard which Illinois was held to have

violated in Witherspoon, 391 U.S. at 522, n. 21.

Witherspoon is fully applicable to a death penalty

Aly ~ — ee e {7 ; at~« sowmho = =- ae ,

procecdcu re such as OAlanoma s (as mumber of state courts have

held, see Peovle v. District Court, Col. Sup. Ct. No. 27078

(March 11, 1976); Hovila v. State, Tex. Ct. Crim. App. No.

49,396 (April 30, 1975); Qwens v. State, _ Ga. _., 214 S.E.2d

173 (1975); State v. Trivitt, New Mexico Sup. Ct. No. 10,159

3/ (Continued)

8. If the offense charged be punishable

with death, the entertaining of such

conscientious opinions as would preclude

his finding the defendant guilty of, in

which case he shall neither be permitted

nor compelled to serve as a juror.’

Regarding challenge for actual bias, 22 U.S. 1971,

§ 659, provides in pertinent part:

‘Particular causes of challenge are of

two kinds:

2. For the existence of state of mind

on the part of the juror, in reference

to the case, or to either party, which

satisfies the court, in the exercise of

a sound discretion, that he cannot try the

issue impartially, without prejudice to

the substantial rights of the party

challenging, and which is known in this

chapter as actual bias.'”

Justus v. State, gupra, 542 P.2d at 605.

(1974); and see State v. Britt, 285 N.C. 256, 204 S.E.2d 817

(Feb. 17, 1976); State v. Noell, 284 N.C. 670, 202 S.E.2da 750 |

(1974)) for two reasons. First, although the primary focus of

the Witherspoon decision was on the jury's pre-Furman role of |

“determin[ing] whether [a defendant's] . .. sentence should

be imprisonment or death,” Witherspoon v. Illinois, supra, 391

U.S. at 518 (footnote omitted), the Court also laid down

standards for exclusion of jurors whose death-penalty scruples

might interfere with their determination of the separate

question of guilt or innocence. The Court noted that:

;

“statutes and rules disqualifying jurors with |

scruples against capital punishment are often

couched in terms of reservations against find-

ing a man guilty when the penalty might be

death .... Yet, despite such language,

courts ... have sometimes permitted the

exclusion for cause of jurors opposed to the

death penalty even in the absence of a showing

that their scruples would have interfered with

their ability to determine guilt in accordance

with the evidence and the law. See, e@.g., ...

Smith v. State, 5 Okia. Cr. 282, 284, 114 P.

350, 351." i

Witherspoon v. Illinois, supra, 391 U.S. at 513, n. 5 (emphasis

in original). The Court ruled that before veniremen could be

excluded cn the ground that their death penalty scruples made

them biased on the issue of guilt, it must be “made unmistakably

clear ... (2) that their attitude toward the death penalty

would prevent them from making an impartial decision as to the

defendant's guilt." Witherspoon v. Illinois, supra, 391 U.S.

at 523, n. 22 (emphasis omitted).

Second, the distinction of Witherspoon offered by the

Court of Criminal Appeals — that “the jury no longer acts as

‘arbiter of the punishment to be imposed' but is limited to a

determination of guilt or innocence," 542 P.2d 605 — proves

either too much or too little. If the court is saying that

attitudes regarding capital pwnishment can play no part in a ;

jury's determination of guilt or innocence of a capital crime,

then Oklahoma manifestly has no business death-qualifying jurors |

at all. But if, as the death-qualification practice approved

below attests, attitudes concerning the death panelty can

affect jurors’ votes on guilt or innocence (or on degree) —

and if a State undertakes to exclude jurors for this very

reason — then a jury selected by the systematic exclusion of

death-scrupled jurors is something other and less than a jury

representative of the whole community in regard to the questions

whichthe jury must decide. The point, of course, is that under

Oklahoma's post-Furman procedure the jury acts simultaneously

to determine both guilt and eat, While Witherspoon

may allow the exclusion of veniremen who are demonstrably biased,

under an appropriate standard, against the imposition of the

death penalty, Witherspoon also specifies in terms the minimally !

acceptable constitutional standard for exclusion: it must be

made “unmistakably clear ... that... [the excluded jurors]

would automatically” reject a verdict carrying the death venalty.

Withersooon v. Illinois, supra, 391 U.S. at 523 n. 22 (emphasis

omitted).

The difference between the state-law “bias” test and

the Witherspoon test for exclusion of death-scrupled jurors is

that the former creates a presumption of excludability from the

uncertainty of a venireman as to his views or from his inability

to state unequivocally whether he could return a verdict whose

consequence was death:

4/ This point applies with even greater force with regard |

to the Oklahoma death penalty statute than with regard to the

typical “mandatory” death penalty statute. For the Oklahoma

juror is required to include in any capital verdict an affirma-

tive statement "that the defendant shall suffer death." 21

Okla. Stat. Ann. § 701.3 (1975-76 Supp.). Although the Court

of Criminal Appeals has indicated that a failure to do so would

not have the legal effect of — the defendant's life,

Williams v. State, supra, 542 P.2d at 578-579, the provision

stands to complicate the moral dilemma of the death scrupled

but conscientious juror by apparent overlap of the sentencing

and guilt determination processes, and to invite voir dire

interrogation regarding the ability to impose a sentence of

death rather than the ability to return a verdict of guilt,

consistent with the evidence, regardless of the knowledge of

future sentencing consequences.

— ee ee

- 71 «=

“a challenge for cause is appropriate

to the extent that the venireman is

equivocal and uncertain regarding his |

capacity to follow the law and hconor

the oath of a juror... . Clearly,

no prospective juror with animosity

concerning the death penalty should be

excused upon this basis if able to set

aside personal beliefs or attitudes and |

fulfill the oath to try the case

impartially according to the law and

the evidence. However, if satisfied of

the defendant's guilt beyond a reasonable

doubt, a venireman is unresolved as to

whether he could then assess the death

penalty, or knowing the death penalty to

be mandatory upon conviction, he is un-

certain whether he could stand indifferent

between the defendant and the State in

deliberating his verdict according to the

law and the evidence, then he has to that

extent forewarned the court that he is

undecided whether he could comply with the

oath of a juror. A challenge for cause

should be granted against such a venireman.”

Justus v. State, supra, 542 P.2d at 607. Witherspoon, however,

reguires that 4 venireman's sentiments be made “unmistaxably

clear" before he may be excluded for cause; and in Funicello v.

New Jersey, 403 U.S. 948 (1971), this Court applied Witherspoon

to invalidate precisely the same “equivocal and uncertain”

ground of exclusion adopted by the Court of Criminal Appeals

here. See Forcella and Funicello v. State, 52 N.J. 263, 245

A.2d 181 (1968).

Each prospective juror in this case was asked, "...

in a case where the law and the evidence warrant, in a proper

case, could you without doing violence to your conscience, agree

to the verdict imposing the death penalty." (See e.g. T.19.) Each

panel member who gave a negative response was asked whether his

or her reservations were such that irrespective of the facts he

or she could not vote for a penalty of death. (See, e.g. T. 20.)

Veniremen Hall and Espolt gave simple negative |

answers *> the second of t ese questions; each was excluded

without further inquiry. (T. 26, 170.) Although the court |

did discuss with the prospective jurors their duty to follow the

law as given in his instructions regardless of agreement or

disagreement with those laws (T. 35), it did so after the

exclusion of venireman Hall, and it did so in general terms,

without reference to the death penalty and outside the context

of any discussion of scruples regarding capital punishnent.

It was therefore not established with “unmistakable clarity”

that either of these veniremen could not “subordinate...

personal views to what he... percsives to be his duty to

abide by his oath as a juror and to obey the law of the State.”

Witherspoon v. Illinois, supra, 391 U.S. a514-15 n. 7.

The impropriety of the exclusion of venirewoman

Angel was blatant. Wher the court asked the second of its

standard questions regarding the death penalty, the following

exchange occurred:

"THE COURT: Please listen to me very

closely, are your reservations about the death

penalty such that regardiess of the law, the

facts, and the circumstances of the case, you

could not inflict the death penalty if you

found beyond a reasonable doubt that the

Defendants or either of them were guilty of

murder in the first degree? Do you understand

what I am asking you?

MRS. ANGEL: I would have to go along with

the law, but regardless of the law, did you say?

THE COURT: Well, you understand, Mrs. Angel,

if the State fails to prove the Defendants guilty

beyond a reasonable doubt, it would be your duty

along with the other Jurors to find the Defendant

not guilty.

MRS. ANGEL: Right.

THE COURT: But if the State proved to your

satisfaction and the other members of the Jury

beyond a reasonable doubt that the Defendant or

Defendants or either of them are guilty of murder

in the first degree, the law of this state provides

only one punishment, that is death. And so what

I am asking you is, irrespective of that law, are

the facts and circumstances of the case, is your

reservations about your feelings about the death

penalty such that irrespective of the facts of

the case, are you saying that you could not vote

for a penalty of death?

MRS. ANGEL: No, I think I am saying it would

be difficult, but I would go ahead if beyond a

reasonable doubt.

- 23 -

THE COURT: Then you could impose

it if you found the facts to be such?

You could do that?

MRS. ANGEL: Yes, if my conscience ---

THE COURT: I won't excuse the Juror

for cause at this time." (T. 21-22.)

Ms. Angel was subsequently questioned by the State

and questioned further by the trial judge:

"MR. HARRIS: . . . Mrs. Angel, you just

don't believe in the death penalty, do you?

MRS. ANGEL: I just find it hard to

believe in the death penalty. I am sorry.

You know it is an opinion, a persona)

opinion. I would comply with the duty,

I would have to if I served on this Jury.

MR. HARRIS: In other words, as the

Court has told you, these Defendants were

charged with murder while committing an

armed robbery. Oklahoma Statutes make

that a death penalty offense ...

MR. HARRIS: Now, that being the case,

you could put aside all your personal beliefs

about the death penalty if you found beyond

a reasonable doubt these two men committed

murder while engaged in an armed robbery, you

could find them guilty of first degree murder,

and assess the death penalty, could you not?

MRS. ANGEL: I am going to revert to my

first answer and say I am not sure, and I

don't think I would be capable of serving on

the Jury. I want to be fair, I really do.

I don't want to get out of my duty, but I

don't believe I could.

MR. HARRIS: You don't think you could serve

on this Jury, you don't want to serve on this

Jury feeling this type of case, do you? [sic]

MRS. ANGEL: I am sorry.

MR. HARRIS: We ask the Juror be excused

for cause, Your Honor.

MR. LEATHERMAN: I object to it.

MRS. ASKINS: We object on the form

on the form of the question, Your Honor.

In proper voir dire question. The District

Attorney attempts to draw his own - - -

- 24 -

THE COURT: Mrs. Angel, if I understand

your answer to Mr. Harris, you don't believe,

if the State proved to your satisfaction

beyond a reasonable doubt that the Defendants

while engaged in an armed robbery, committed

murder in the first degree, that you could

not vote the death penalty; is that correct?

MRS. ANGEL: I would vote the death

penalty, but it would upset me. You said

would it do violence to my conscience, I

think it would, I am trying to be fair.

THE COURT: But if you found the facts

to be such in this particular case?

MRS. ANGEL: I would. I would feel it

my duty, I would have to, if I were on the

Jury, yes, I would.

THE COURT: You understand if you should

find, that is up to you as a Juror, I am not

suggesting what you find, but should you find

as a Juror these Defendants are guilty of

murder in the first degree, that the punish-

ment for it is death, you understand that?

MRS. ANGEL: Yes.

THE COURT: And if you found them guilty

as Mr. Harris has asked you, would you and

could you vote for the death penalty?

MRS. ANGEL: I would find it very hard,

I will be honest. No, I don't believe I

could.

THE COURT: You don't believe you could.

MRS. ANGEL: No, I don't believe I could.

I am being completely honest.

THE COURT: You have answered me and Mr.

Harris two or three different ways.

MRS. ANGEL: I know, I am trying to assess

myself.

THE COURT: I want you to think about it.

I want you to express your true and honest

convictions about this matter.

MRS. ANGEL: I am trying to ask myself

whether I will be able to do such, and I am

not sure I would be able to, so I think the

only fair thing for me to do, 'I perhaps

won't be able to in all conscience vote for

the death penalty.

THE COURT: Irrespective of the facts?

I'll excuse the lady for cause, and Defendants,

both Defendants, will be given an exception

to the ruling.”

- 28 -

ES ee ee ee ee

ee ee

(T. 37-39.) Surely Ms. Angel's honesty, during intense

questioning, in saying that she “perhaps” would not be able

to “vote for the death penalty," despite her repeated

assertions that she would abide by the law to the best of her

ability, did not make it “unmistakably clear” that she would

“automatically” reject a verdict imposing a death penalty.

The right of a capital defendant to a fair and

impartial trial in which the "scales . .. are not deliberately

tipped toward death,” Witherspoon v. Illinois, supra, 391 U.S.

at 522 n. 20, is fundamental:

"the jury-selection standards employed here

necessarily undermined ‘the very integrity

of the... process’ that decided the

petitioner's fate ... and we have concluded

that neither the reliance of law enforcement

officials . .. nor the impact of a retroactive

holding on the administration of justice ...

warrants a decision against the fully retro-

active application of the helding we announce

today.”

Witherspoon v. Illinois, supra, 391 U.S. at 523 n. 22. The

Court should grant certiorari in this case to determine whether

Oklahoma has not impermissibly diluted a capital defendant's

right to a jury selected in accordance with Witherspoon's

requirements.

5/ See, n. 4 , supra.

- 26 -

ee -

THIS COURT SHOULD GRANT CERTIORARI

TO DETERMINE WHETHER PETITIONER

WILLIAMS WAS DEPRIVED OF DUE PROCESS

OF LAW BY THE ADMISSION, FOR CONSIDERA-

TION OF THE JURY, OF STATEMENTS AS TO

WHICH AN INDEPENDENT DETERMINATION OF

VOLUNTARINESS HAD BEEN REQUESTED BUT

HAD NOT BEEN MADE.

After an in camera hearing as to the admissibility

of petitioners’ statements to the police, the court summarized

the evidence presented by each side and ruled as follows:

“I think that makes it a question of fact

for the Jury to decide: The voluntary

statement, whether it's voluntary or not.

I don't find under the evidence in this

case that as a matter cf law, that it is

unvoluntary [sic] statement.

You have a conflict between the statement

st&nanat & +aectinmener 2 fF tha --Firor ara #4

. —+ =~

~_—~—=— + ee ~~ wee ~_-—+——- == -

that up to the Jury to decide as to whether

or not under proper instructions, whether

it's voluntary.

If the Jury finds that the statement is not

voluntary, then they will be instructed to

disregard it. If they do, unde; the law as

you gentlemen know, they can consider it.

But I think you have a question of fact to

be determined by the Jury, not by the Court.”

(T. 310.) It is clear from the face of this ruling that the

requirements of Jackson v. Denno, 378 U.S. 368 (1963), as

interpreted by Sims v. Georgia, 385 U.S. 538 (1966), had not

been met, for

“Although the judge need not make formal

findings of fact or write an opinion, his

conclusion that the confession is voluntary

must appear from the record with unmistakable

clarity.”

Id. at 544. (Emphasis added.) And that conclusion must

“includ[e] resolution of disputed facts upon which the

voluntariness issue may depend.” Jackson v. Denno, supra,

378 U.S. at 391.

- 27 «

The meaning of the trial court's assertion that

the statement was not “unvoluntary” as a matter of law is

unclear. The record does reflect, however, that counsel for

petitioner Williams had taken the position that “Once...

a suspect has refused to waive his Constitutional Fifth

Amendment privilege, the officers have no more right to try to

talk with him" (T. 294) and ee he was questioned on this

point by the court (T. 295-96); it is conceivable that this is

the “matter of law" to which the court referred.

The contention that the trial judge did not consider

it his duty to weigh the evidence and resolve factual questions

is buttressed by examination of his disposition of petitioner

Justus' motion to suppress. After noting that "the test laid

down by the Court of Criminal Appeals is that the confession

is voluntary, and wasn't done after the proper Miranda warning”

(T. 317), he addressed the question whether different standards

should apply to taped confessions, determined that they should

not and said

“The other part that complies with it, the

same thing. The State has said that it is

volontary, put on proof to that affect [sic].

The Defendants take the position that was

not voluntary, and it was not true. 7/ These

are questions of fact for the Jury to determine.

These are questions that I am not to pass on,

questions of facts for the Jury to pass on, SO

they will be admitted. .. .”

(T. 318-19.)

6/ “THE COURT: Is it your position that under the law

that once he remains silent when he's advised of his rights,

then the Defendant remains silent there, that they couldn't

advise him of his rights again and have the Defendant give a

statement? Is that your understanding of the law, Mr. Jordan?"

(Id.)

7/ The joinder of the issues of truth and voluntariness in

this ruling is further evidence of a misconstruction of Jackson

v. Denno, for its very purpose was to assure, to the extent

possible,independent findings of “truthfulness” and “voluntari-

ness." Jackson v. Denno, supra, 378 U.S. at 386.

———

This Covrt should grant certiorari to determine

whether petitioner Williams' right "to have a fair hearing and

a reliable determination on the issue of voluntariness, 2

determination uninfluenced by the truth or falsity of the

—

confession" was fully and conscientiously protected.

/ Jackson v. Denno, supra, 378 U.S. at 377.

- 29 -

CONCLUSION

Petittioners pray that the petition for a writ of

certiorari be granted.

Respectfully submitted,

DONALD ANDERSON

Office of the Public Defender

Oklahoma County Courthouse

Oklahoma City, Oklahoma 73102

RICHARD L. WELDON

Suite 630 Leonhardt Building

Oklahoma City, Oklahoma 73102

JACK GREENBERG

JAMES M. NABRIT, III

PEGGY C. DAVIS

DAVID E. KENDALL

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONERS

- 30 -

ant .

Tee ,

! mee 9 ~ vr wer tee ji -

. APPENDIX A}. i

| SEP LY Se: ‘

|! Roce N. Litare, Je}

I “1E8™ t

IN THE COURT OF CRININAL[2APPEALS=OF“TiE STATE OF OKLAHOY

BOVBY JOE WILLIAMS, and )

ALLEN CLAYBURN JUSTUS, )

‘ > rT >

) For BP TIO Aw rA:

Appellants, ). USLICA é lON

, »)* .

-ve° ) No. F=-74-648 and No. P-74-650

> :

THE STATE OF OKLAHOMA, )

)

Appellee. )

-SYLLABU S-

1. Where upon conviction for the offense charged the agsessrent

of the death penalty is mendatory, the appropriate basis for

Challenge for cause against veniremen ontaconistic to ce

punishment may be for implied bias or actval bias to the ex-

tent that the personal scruples or opinions of prespectrive

jungrs will not yield to the law as cnacted by the Lecisla-

ture, anc the pertinent voir dire inguiry is whether, in view

thereof, the veniremen can deliberate upon the evidener in

partially under the law and assess such punishment should

guilt be’ established beyond a reasonable doubt.

2. No venireman with animosity concerning the death penalt:

should be excused upon that basis if able to set aside rer-

sonal beliefs or attitudes and fulfill the cath to try the

case impartially according to the law and the evidence.

However, if knowing the death penalty to be mandatory upon

conviction, a venireman is uncertain whether he could stand

indifferent between the: defendant and the State in deliberst-

ing his verdict according to the law and the evidence, or if

satisfied of the defendant's guilt beyond a reasonable doubt,

he is unresol. .@ as to whether he could then assess the death

malty, then a challenge for cause is appropriate to the ex-

. tent that the vernireman is equivocal] and uncertain regarding

his capacity to follow the law and honor the oath of a juror.

A challenge for cause should be granted against such a venire-

man, for otherwise the administration of the oath would he

frivolous and create chaos resulting in our system of juris-

prudence being a mockery based upon the personal whirs of

individuals. The State, as well as the defendant, is entitled

to a fair and impartial jury.

3. In this jurisdiction, the trial judge first hears the evicence

regarding the admissibility of a confession, himself resoives

evidentiary conflicts and gives his own answer to any coercion

issue, rejecting confessions he deems involuntary and edmittin

only those he believes voluntary. Only the latter confessions

are heard by the jury, which may then under this procedure,

Gisagree with the judge, find the confession involuntary, anc

ignore it. Given the integrity of the preliminary proccedincs

before the trial judge, this procedure does not pose hazards

to the rights of a defendant. The jury docs not hear all con-

fessions where there is a fair question of voluntariness, but

only those which a judge actually and independently determines

to be voluntary, based upen all the evidence. The judge's

consideration of voluntariness is carried out scparate ane

-——— see Bee ee

I LL LS

tion to the hearsay rule.

@side from issues of the reliability of the confession and the

guilt or innocence of the accused, and without regard to the

fact the issue may again be raised before the jury if decidee

against the defendant. The record will show the judge's con-

Clusions in this regard, and his findines upon the underlying

facts may be expressed or ascertainable fron, the record.

Statement or confession involuntary, nor inadmissible, if it

is otherwise Shown to be voluntary and Given without coercion,

fear produced by threets or mistreatment, or promises.

Mere delay in arraionment of a prisoner will not render the

This Court will not Gisturb the trial court's ruling pernit+¢ir-

the introduction of a confession if Supported by sufficient ev

dence that the Gefendant knowingly and intelligently waived hi.

rights and understood the consequences of said Waiver.

When a confession is admissible, the whole of what the accu

Said upon the Subject at the time of making the coniession

admissible and Should be taken together. If the prosecut

fails to prove the whole Statement, the accused is entitlee tc

put in evidence a)]l that was said to and by him at the tire

Which bears upon the subject of controversy, including any ex-

Culpatory or self-serving Geclarations connected therewith,

To be admissible, however, it must clearly aprear that the ox-

culpetory Statements were made in the same confession or co::-

versation soucht to be introduced in evidence, and not upon

other or Separate occasions. Only to the exten+t thet the self-

serving declaration is Sufficiently releteg in both

Subject matter to the coutession, is there an adcegy

Of testinonial trustworthiness to Justify admission

~*~ wee

The clearest case of hearsay is where a witness testifies tc th

Geclaerations of enother for the Purpose of Proving the facts

esserted by the Geclarant. The hearsay rule, however, does no

Operate, even @part from its exceptions, to render inacrissib

every statement Tepeatec by a witness @s made by another pers

It does not exclude evidence offered to Prove the fact that a

Statement was made or @ conversation was had, rather than the

truth of what was Said. Where the mere fact that a Statement

WaS made or a conversation was had is independently relevant,

regardless of its truth or its falsity, such evidence is ag-

Missible as a verbal act, However, the exculpatory asserticns

within an extrajudicial Statement offered to Prove the involun-

tariness of a Subsequent and Gistinct confession, are irrelevance

apart. from the trvth or falsity thereof, and therefore within

the rule against hearsay.

When with prior Knowledge one Gefendant seeks to introduce eyi-

dence in his own behalf prejudicially violative of the richts

of his co-cefendant, a timely motion for severance must bo pre-

Sented by defense counsel, apprising the tria) court of the cir-

cumstances that may develop which might prejudice the co-defen-

dant. Neither the State nor the court should be regqvtired to

necessitated. A Presumption of Prejudice does not «rise from

joinder, and without such information a judge cannot be presumed

to know that prejudice will result therefrom.

The authenticity of a video tape confession is sufficiently

established by a

witness who Specifically identified the video

tape and testified that as presented this exhibit WaS a true and

correct representation of the actual events depicted therein,

and that the Criginal tape had not been altered or tampered wit

in any manner. If a Proper foundation is laid for the admission

10.

ll.

22.

13:

14.

of a video tape by Showing that it truly an

picts the even

ts ane persons shown, ‘and tha

reproduced the defendant's confession, such

advancement in the field of criminal proced

tion of cefendant's richts.

The introducti

on of photographs taken subse

is largely within the Giscretion of the tri

Cause for rev

victim, design

such photographs

issues before

weighed by the danger of

Where not acting in bad faith the State elicits otherwise

prejudicial testimony in direct examination, and Gefonse coun

Sel interposes no objection, request for admonishmernt or tir

motion for mistrial, but then procecds to equally develop the

area of prejudice in cross-examination, the error is waived

and not preserved for review on appeal. Defense counsel has

the duty to raise at the proper time all objections to the

proceedings, and when this is not done they will be treated .<

waived, unless they are of such an ture as to deny Cefencer -

@ fair and impartial trial.

The death penalty is not cruel ane unusual ounishuent rez Sc,

nor is the scheme for enforcement of Capital punishment wie:

this State, as construed, so permeated with Unbridled dic-

Creticn that imposition thercof would constitute invidious

Giscrimination and tuerefore cruel ane enusual punishresys,

The Legislative purpose in Classifying certain “felony-murdce-:

ersal absent an abuse thereos. |

error to receive in evidence gruesome photographs of < homic:

ed primarily to arouse the passion of the jury,

are acmissible when they are relevant to t&<

tne court and their probative

as first degree rather then second degree nr

with the death penalty, those crimes of & particularly hein

anc brutal nature as well as those felonies necessarily in-

volving great

risk of death Or serious bodi

victim. Armed robbery, as well as the atte

Same, is a fel

being of such

ony which has traditionally b

@ nature thet the ultimate pe

should be authorized. The Statutory classi

degree murder,

of homicide wh

robbery, constitutes a legitimate and reasonable excercise of

of the unlawful and premeditated perpetration

ile committine or attempting

Police power by the Legislature, and is not

discriminatory

anc vague that enforcement o

would deny egual protection ang Gue process

A new trial sh

discovered evi

Ould not be granted upon the

Gence where the Same is mere]

must appear thet, if the newly discovered e

introduced in

that a differe

of granting ne

been convicted

that they had

by the courts.

the trial, there is @ reasonable prohability

nt result would have been rea

w trials upon affidavits of persons who have

and then Changed their testi

committed perjury, is not loo

y of the evidence there is no

t result would follow upon re

prejudice to the defendan:.

it would be so far

th prior inconsistent Sstateme

d correctly de-

t it accurately

@ device is an

ure and a protec-

guent to a homici.

al court and nr t i

Althouch it is

valuc is not out-

suurcer was to Cite

ly injury to

mpt to commit the

een recognized as

nalty of death

fication as first

to commit armed

SO arbitrary,

£ the death penalty

of the law.

ground of newly

Y cumulative. m+

vicence had been

che@. The practice

mony, asserting

mts that in view of

reasonable probabi}-

trial.

* Coun

IN THE COURT OF CRIMINAL STATE OF

BOBEY JOE WILLIAMS, and

ALLEN CLAYBURN JUSTUS,

Appellants,

ee ee ee ee ee eee ee ee ee

-Vs- No. F-74-648 and No.

THE STATE OF OKLAHOMA,

Anpellec.

-OPINION-

BUSSEY, Judce:

Appellants, Bobby Joe Williams anc Allen Clayburn

hereinafter referred to as defendants, were charocd, tric

victec in the District Court, Oklahoma County, Cease No. C

for the ofiense of First Degree Murder, in violation of 2

1974, § 701.1, 92. In accordance with the provisions of

1974, § 701.3, the Gefendants were thereafter sentenced t

and from each judcoment and sentence a timely

this Court in respective Case

been consclidated for

Police Department, on O

1973, he was nicht convenience store

' cr

Tom Market at <lahoma City,

ty, Oklahoma. He there observed the dead body of a w

lying in a prone position behind the counter, and also

cash register was open and empty of moncy. He later lear

S if pry y

name of the ceceased to be Cherry Lee Kennedy, and State'

No. 3 was admittec after being identified as a picture of

cne

as first observed by the wi ss. When later recalled,

OKLAHOMA

F-74-650

Justu:

C. ana ce foes

RE-73-3161,

1 0O.8.8u;

21 0.S.8vu>p.

a ma 4}

ay ~4- mel 4.

eriectec co

ewhiek hee

Wn2cnm nas

lahoma City

+rrk -

ctcher 30,

KRlLown as

Sle 1 = Be ream se

Okiahoma

hiéeem €am-1<

nite 2Crc i€

ted that the

S Exhibit

the Geceased

the witness

testified he was present that same day when Dr. Keen of the Medical

Examiner's Office performed an autopsy upon the body and

projectile which was released to Officer Connelly. When

a sccond tim:, he further testified that he participated

removed a

later recélled

in the arr-e: i

of defencant Williams on November 2, 1973, and State’ S Exhibit No. 2A

was admitted into evidence upon being identified as a statement which

that defendant gave and executed recarding the alleced offense after

being advised of his rights on November 5, 1973.

The most pertinent

part of that statement was read to the jury as follows:

"Ouestion: Would you relate to me in your own words to

your part in the above homicice?

“Answer: Allan Justus and I was sitting by the Fina

Service Station by S.W. 59th and High. I was going to

go in there masked and rob him. But there was too much

traffic. So we deciced not to do it. We were on ovr

way back home and I remerbered a store that could be hit.

While we were on our way we was talking about it. Allan

said that killing someone was the casiecst

world to do and get away with it.

would suspect it was being rebb

° No one

thing in the

woule ever know

"tie said if I was to go in the store unraskec that no one

about it because there wouldn't be any witnesses. We

stopped «at the store, I went in, told her

4- mui hho waenuy

as) Me se eae ae

’

in the sacx, she Gid so ang I was grabbing some cigarettes

With one hénd ene hac the gun in my eet hend, when I ;

trying to put the Mariboro cicarettes in ny left hana ane

the gun in my right hand, the qu: sastanetaiiy went off.

I think it shot her anc after that I just startca shecting

her until it wouldn't shoot enyrore and ran back to the car,

we sterted going down Ceucend strects and I threw the gun

outside the car and we went home.

"Question: Bobby, how much money taken in the above robbcry?

“Answer: I believe about $30." (Tr. 392-

393)

Harrison H. Latham identified State's Exhibit No. 4 as a4 .22 cali-

ber revolver that he sold to defendant Williams for $29.00 at a swap

shop on October 20, 1973. We further testified that he had previcusly

purchased the gun from one Elrer Dempsey, and had

with the Oklahoma City Police Department

not recistereée the cun

William Enbery identified State's. Exhibit No. 4 as the gun he

found on the evening of October 30, 1973, in the 2200 biock of South

Brookline. He then took the sun home nearby, and his father contactec

the police who came anc took the gun.

Kenneth James hahn, a supervisor for Tom's

Market, Inc., testifie

that on October 30, 1973, Cherry Lee Kennedy had operatec the store in

the 1500 block of South Pennsylvania since 11:00 p.m. the previous even-

ing. We arrived at the store at about 5:30 a.m.

that day and observec

her body behind the counter before being removed, and a larye amount of

blood on the floor. He also noticed the cash register was empty and

determined that about $32.00 was missing. ‘

Sergeant Doyal Connelly of the Oklahona City Police Department

testified that he received a bullet from Dr. Phillip Keen and éelivered

it to Ray Lambert of the Oklahoma State Bureau of Investigation on

October 30, 1973.

Ray Lambert of the Oklahoma State Bureau of Investigation ap-

pearec as a firearms and ballistics expert. He identified State's

Exhibit No. 4 as a gun he had received from Officer Kirby, and testi-

fiec to receiving a spent bullet from Officer Connelly on October 30,

1973. He then expressed the opinion that based upon his examination

this bullet hae been fireé from State's Exhibit No. 4. When later

recalled, this witness identified State's Exhibit No. 5 as containing

both the buliect previously mentioned and the bullet that he had tes*

fired from State's Exhibit No. 4 for use in microscopic comparison.

Officer Denver Kirby of the Oklahoma City Police Departrent

identified State's Exhibit No. 4 as the gun he had received from Ser-'

geant Upchurch of that same department, and delivered to Ray Lembert of

the Oklahoma State Bureau of Investigation on or about October 31, 1973.

Officer Ron McKinney of the Oklahoma City Police Department

igentified State's Exhibit No. 4 as the gun delivereé to him by Williar

Embery on the afternoon of October 30, 1973, and which he shortly there-

after released to John Hill, a lab technician with the Police Departrent.

Officer John G. Hill of the Oklahoma City Police Department

identified State's Exhibit No. 4 as the gun he had receivee from Officer

McKinney on October 30, 1973. After processing the gun and determining

the registered owner to be one Elmer Dempsey, the witness secured the

exhibit in a locked cabinet at the Police Department. The gun was then

admitted into evidence. .

Dr. Phillip Keen, a Medical Examiner and forensic pathologist

with the Office of the Chief Medical Examiner for the State of Oklahoma,

testified that he performed an autopsy upon the body of Cherry Lee

Kennedy on October 30, 1973, and determined the cause of death to be a

re Ce

. .@

‘

gunshot wound to the head. The witness observed a bullet wound to the

left leg, another at the top of the head in the right comple, and a

third to the left shoulder which then entercée the left cheek and lodced

behind the right jaw. The latter bullet was recovered and released to

Officer Connelly of the Oklahoma City Police Department. State's Exhi-

bit No. 5 was then admitted into evidence.

Officer Bob J. Coffia, assigned to the Special Services Division

of the Oklahoma City Police Department, testified that he was traincd

in the use of vicee tape equipment, and identifiee State's Exhibit No.

i as a video tape portraying an interrogation of defendant Justus which

he made at the Oklahoma City Police Department on November 3, 1973.

This video tape was then admitted into evidence and exhibited to the .

jury.

In this viceo tape statement defendant Justus was first acvised

of his richts and then acknowledged the same by executing a waiver of

rights form. Regarding the subject offense, he then relateé that at

about 3:30 to 3:45 a.m. on the night thereof, he and defencant Williams

were riding around in the car of defenéent Justus looking for soncone,

or something, to hit when his co-defencant directed him to Toir's Market.

He Gid not personally favor this location, but defendant Williams was

familiar with the store and had observed quite a bit of money there.

Hie parked the car on the north sice of the store with the engine running

and defendant Williams enterec the store with a gun and wearine gloves.

While in the car, he heard four shots, and interjected that there were

not supposed to ‘be any shots fired but only a robbery. Defendant

Williams then came running out with two cartons of Marlboro cicarettes

and a bag of money, and said that he had shot her once in the hip and

three times in the face and he was sume she was dead. While fleeing

the neighborhood in his car, they then kept running into ceadenc streets.

Defendant Williams askec him what should be Core with the gun, and upon

his sdvice Gefendant Williams then wiped the gun and threw it from the

* car while he was watching the road anc looking for police cars. They

then drove home and evenly split the money, estimated at $32.00 plus

:~ . . 60me change, and each took one of the two cartons of cigarettes. When

’ BEST COPY AVAILABLE

OO OO

arrested, each defendant had one packace of Marlboro cigarettes, and

he stated that these came from those cartons taken in the robbery .

Defendant Justus further described and identified the gun used in the

robbery, and explained that he had recommended the gun to defendant

Williams when his co-defendant purchased it at a swap meet, and that

he thereafter fired the gun in target practice.

The final witness in chief for the State was Detective Jerry

Guinn of the Oklahoma City Police Department who testified that he also

participated’in the arrest of both defendants on Novenber 2, 1973, and

thereafter interrogated defendant Justus after advising him of his richt:s

in the video tape marked as State's Exhibit No. 1, Guring which that de-

fendant identified State's Exhibit No. 4 as the gun therein discussed.

Defendant Williams next took the witness stand in his own @cfenec.

Insofar as his testimony was responsive to the evidence of the State ané

the issues presented, he admitted te having purchased the suirject aun

but claimed to have traded it to one Alton Oliver (Coopez) on October

28 or 29. lie also denied any participation in the crime and any knew-

ledge thereof, and asserted that the confession was Sicned after he had

previously requested an attorney and without knowledge of the contents

thereof because Detective Knight threatened to rearrest Gayle Kimbrouch,

the woman with whom this defendant had been living, and because Detective

Knight had.indicated that he would protect her from friends of defendant

Justus if he would sign the instrument. He explained that Gayle Kirbrou:

‘was seven months pregnant and had been taken into custody in connection

with this offense on the same night that he had previous ly been arrestec,

and claimed that she had been mistreated by the officers calling her

names and telling her that the baby would be born in jail. Although he

knew that signing the instrument would involve him in the crime, he

testified that at the time he did not know this to be a confession. ané

the contents thereof were not his statements. He further testified that

shortly before Gefendant Justus made his video tape statement on Noverbe:

3, he gave a video tape staicrent implicating defendant Justus because

the authorities told him that they would release himself and Gayle Kir-

res em

“* brough, and an Assistant District Attorney gave him a piece of paper

? .

wherein he expressed his agrecnent not to prosecute him for purchasing

‘a’ gun as a felon if he would testify against defendant Justus. He also

admitted prior convictions for embezzlement and a Feceral stolen auto-

mobile charse.

In cross-examination by the State, defendant Williams testificé

*that Gayle Kirbrough was legally married, and that her husband was in

the military service overseas. He clainee that at the tine of the

crime he was at home with Gayle Kimbrouch and her Children, and that he

had given the piece of paper he had received from the Assistant District

Attorney to Gayle Kimbroush or her mother at the police station. He

admitted telling Detective Knight that he knew the crime was gvine to

happen, but said that this had been a lie. He also testified that .

Gefencant Justus was with him when the gen was purchased and had cor-

mentec that it was a good gun. In cross-exarination on behalf of

Cefendant Justus, he testified that he had implicated that defendant

because Datec re Knight wanted him to and that to his knowlcdge cefen-

‘ dant Justus had not been involved in the offense.

Ed McConnel, an attorney, next testified that at the reguest of

the sister of defendant Williams he consulted with him in jail on the

evening of November 5, 1973, and found the defendant to be guite dis-

traught and unresponsive.

Gayle Kimbrough then testified and insofar as pertinent here

generally confirmed her relationship with defendant Williams and his

account of the circumstances surrounding her arrest ane detention.

Patricia Choate testified as the final defense witness for

defendant Williams that she was the mother of Gayle Kimbrough, and

that while at the Oklahoma City Police Departrent @cfendant Williars

gave her a piece of paper sicnec by the Assistant District Attorney.

She had not looked for the paper, but thoucht that it was at home.

Defendant Justus next testified in his own behalf that he was

threatened and coerced into making the video tape confession after

being coached and while under the influence of LSD. Hie denied any

participation in the crime, and asserted that he was home with his

.;,Wife and son at the time of the offense. This defendant explained

that he had taken one hit or pill of LSD shortly before his arrest,

and swallowed the remaining eicht pills just prior to his arrest to

keep from being caught with them. Despite his repeated reguests for

an attorney, he was thereafter questioned several times. After vicovw-

ing a video tape statement made by defendant Williams and while still

under the influence of the LSD, he agreed to give his video tape con-

fession after Detective Knight had threatened him with a gun anc re-

peatedly prepared him as to what to Say. He admitted being with cefen-

dant Williams when the gun was purchased, but prior to his arrest

claimed to have last seen the gun when defendant Williams gave it to

Alton Oliver. He also admitteec prior convictions for second acecrce

forgery, attempted larceny of an automobile, and a Dyer Act violation

when a juvenile.

Jimny Justus next testified that he was the father of defencant

Justus, and that in response to a telephone call from Detective Knicht

he visited his son at the Police bepartment after midnight on the Gay

of his arrest. He described his son as then being “real glassy-eyed,

and his speech was rather slow at times, and he would roll his eyes

back in his head every once in awhile." (Tr. 554) He further testified

that Detective Knicht told him a murder had been cormitted and, althouch

they did not believe his son was involved, they wanted him to use his

influence with his son to determine what knowledge he micht have of the

matter.

Barbara Justus then testified as the final defense witness

_ that she was the wife of defendant Justus anc confirmed that he was

home with her at the time of the crime. ‘She had also heen arrested

as an accessory to the murder on the sare day that her husband was

arrested, and when she first talked with him at the Police Department

he told her that they did not have to Say anythine because he had

already asked for a lawyer. On further examination she testified that

the next day she verified a Staterent that her husband had made irnli-

cating himself in the crime, but that she hac lied because her husband

had begged her to verify his statement Stating that he had been

. threatened and if she didn't he would not make it out of the City Jail.

In rebuttal, Elizabeth Huff, a report clerk for the Oklahoma

City Police Department, testified that she prepared the stateme:~ of

Gefendant William: after he was read his rights from that instr: nt,

typing the questions and answers between Detective Knight and th.t

defendant word for word. Defendant Williams was then asked to road

the statement and initial the encirclea typocraphical errors, which he

Gid in addition to Signing the instrument.

Jerry Guinn was then recalled and testifica that after defen-

dant Justus gave his video tape statement his wife was brought in at

his request, and that Gefendant then told her he hae made a ful) ane

truthful statement and he wanted her to do the same.

Adam Knight was then recalled and testifiee that he never

rehearsec defendant Justus to give a statement nor threatened him with

a gun.

Officer Larry Upchurch was then called as the final rebutte}

witness and denied the previous assertion of Gayle Kinbrough that he

had mistreated her by dragging her about.

The State then rested rebuttal and no evidence in surrebuttal

was offered in behalf of the defendants. |

In their first assignment of error, each defendant contends that

the death sentence cannot be imposed because the jury "was chosen by

excluding veniremen for cause Simply because they voiced general objec-

tions to the death penalty or expressed conscientious or relicious

. SCruples against its infliction,” in violation of Witherspoon v. Illino::

391 U.S. 510, 522, 88 S.ct. 1770, 20 L.Ed.2d 776 (1968), and other re-

Sulting decisions. This contention is principally based upon the ex-

clusion of Mrs. Angel, however, mention is also made of the challenge

against Mr. Hall, and of those empenelled, these were the only two

veniremen to be excused because they were opposed to capital punishrent.

The pertinent veis G.re examination of these veniremcn is set forth in t}

Appendix hereto attached,

In the recent case of Justus v. State, Okl.Cr., P.2da P

F-74-713 (1975), however, this Court held that the applicability of

Witherspoon was limited to those cases where, upon conviction for the

offense charged, the jury has discretion to resolve whether the

defendant shall suffer death or some lesser decree of punishment,

and under the provisions of 21 0.S.Supp. 1974, § 701.1, et seq.,

see infra, we observed that:

“. « « The people have, throuch the Legislature, prede-

. termined that such offenses are proper cases for the

exclusive assessment of capital punishment, and the

pertinent vior dire inguiry is whether in view thereof,

the venireren can deliberate unon the evidence inparti-

ally uncer the law and assess such punishrent should

guilt be established beyond a2 reasonable doubt."

Pursuant to the provisions of 22 0.S. 1971, §§ 659, 42 and G60,

&, we further held in Justus that the appropriate basis for challence

may be for implied bias or actual bias to the extent that the personal

scruples or opinions of a venireman will not yield to the law as en- :

acted by the Legislature. Clearly, the examination of Mr. Nall estab-

lished that he was. so opposed to capital punishment that he could not,

in any case, agree to a verdict imposing the death penalty, irrespective

of the law and even assuming the State were to prove the defendant

guilty beyond a reasonable doubt. The examination of Mrs. Angel un-

guestionably reveals that she had personal reservations concerning the

death penalty, and that she vascillated recarding her capacity to set

those reservations aside and otherwise be a fair anc impartial juror.

However, the voir dire of Mrs. Angel in this regard was extensive, ané

she was not excused until the conclusion became apparent that at best

she did not know whether she could apply the lew to the evidence anc

honor the oath of a juror in this case. We, therefore, finé this prope-

Sition to be without merit, and in support thereof adopt the following

language from Justus:

"We are of the opinion that a challenge for cause is

appropriate to the extent that the veniremen is equivocal

ana uncertain recarcing his capacity to follow the law

and honor the oath of a juror. .. . Clearly, no prospec-

tive juror with animosity concernine the death penalty

should be excused upon this basis if able to set asice

personal belicfs or attitudes and fulfill the oath to

try the case impartially according to the law and the

evidence. However, if satisficd of the defendant's

guilt beyond a reasonable doubt, a venireran is unre-

solvec as to whether he could Wien assess the death

penalty, or knowing the death penalty to be mandatory

upon conviction, he is uncertain whether he could stand

indifferent between the defendant and the State in delib:

. erating his verdict according to the law and the evidence,

then he has to that extent forewarned the court that he

is undecided whether he could comply with the oath of

a juror. A challenge for cause should be granted

against such a venireman, for otherwise the adminis-

tration of the oath would be frivolous. We acree with

the cogent argument of the State that the trial court

should not accept a juror who does not know whether he

can follow the law, and that to do otherwiss would create

chaos and make our system of jurisprudence a mockery

based upon the personal whims of individuals. The State,

as well as the defendant, is entitled to a fair anc im-

partial jury... ."

Defendant Williams next raises six assignments of error, numberec

two through seven, not presented by the Brief of defencant Justus. In

his second assignment of error, defendant Williams contencs that his

confession, State's Exhibit No. 2A, was improperly acmitted into evi-

Gence because the trial court failed to adequately determine and rule

upon the voluntariness thereof, and the evidence presented to the trial

court established the same to have been executed involuntarily uncer

coercion.

Followine the empanelling of the jury and prior to the openince

statement of the State, the trial court conducted an evicentiary hear-

ing, outside the presence of the jury, regarding the admissibility of

the confession of each defendant. In regard to the confession of defen-

dant Williams, Detective Knight testified that defendant Williams wes

arrested at about 4:30 p.m. on a Friday, and executed State's Exhibit

No. 2 at about 6:30 p.m. the following Monday after the subject charces

were filed“earlier that day. He further testified that this intervicw

was initiated at the request of that defendant, and, after being advisec

‘of his rights as contained in that exhibit and reading them himself,

the defendant gave that statement which was eranseribed by a stenographer

and signed by the defendant. During this four-day pericd, Detective

Knight explained that defendant Williams was interrocatec a total of

four times, but that these concerned several other offenses and very

little time dealt with the subject offense. Defendant Williams then

testified essentially as above set forth with regarc to this confession.

Maric Drayson, mother of defendant Williams, testified as ‘he final

witness that her son telephoned her on the day of his arrest and advised

her that he was in custody charged with murder, but did not reguest that

-, . . ! * 4 .

she get him a lawyer, and that when she then telephoned the jail she

was refused permission to see her son. After ordering the deletion

of the reference to another and distinct offense, and permitting the

substitution of State's Exhibit No. 2A for State's Exhibit No. 2, as

' sO modified, the trial court then overruled a Motion to Suppress the

confession wherein defendant Williams asserted that he had not knowingly

voluntarily, and intelligently made the same with the benefit of his

Miranda rights. In so ruling, the trial court stated in part:

"THE COURT: I will take up State's Exhibit No. 2 to start

with. It's a purportedly signed confession of the Defen-

dant Williams. It is my understandinc of the law that the

question is: Was it voluntary? And No. 2: Was it given

after being acmonished of their rights in the Miranda de-

cision of the United States Supreme Court? Now, we have

one testimony of the officer and the instrurent itself, was

that they dic advise him, that he was advised. And that he

Signed it freely, and voluntarily after the Miranda Warning

of the statement itself said he was advised, plus the fact

"From the Defendant's point of view of this Statement, they

Say it was not voluntary, that he did not read it, he @ién't

uncgerstand it, he didn't know what he was Signing, that he

had signed it to keep this lacy, his common-law wife, and

fiance, out of jail, ...

“. . . He has testified that he didn't understand it, it wes

y against his will, and so forth. I think that makes it a

question of fact for the Jury to cecide: The voluntary

statement, whether it's voluntary or not. I don't find

under the evicence in this case that: as a mattor of lav,

that it is unvoluntary (sic) stetcrent. {Lmphasis addec}

"You have a conflict between the statenent itself, testirony

of the officer, and the testimony cf the Defendant. So I

will leave tha up to the Jury to decide as to whether or

not under proper instructions, whether it's voluntary.

“If the Jury finds that the statement is not voluntary, then

they will be instructed to disrecardé it. If they do, under

the law as you gentlemen know, they can consider it. But I

think you have a question of fact to be determined hy the

Jury, not by the Court. ..." (Tr. 308-310)

Regarding the sufficiency of the ruling by the trial court, the

defendant relies upon Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,

12 L.Ed.2d 908 t1964). Howcver, that cecisicr was analyzeé in this

regard in Tice v. State, Okl.Cr., 478 P.2a 916, 919-920 (1971), as

follows:

“(T]he crux of these arguments poses the question of whether

the hearing and judge's ruling were in accordance with the

requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,

12 L.Ed.2d 908.

"In Jackson, supra, we find the following pertinent lan-

guage in Footnote 8, referring to the Massachusetts rule,

which has long been followed by the courts of this state:

""We raise no question here concerning the Massachusetts

procecure. In jurisdict ions following this rule, the

judge hears the confession evidence, himself resolves

evidentiary conflicts and gives his own answer to coercion

issuc, rejecting confessions he deems involuntary and ad-

mitting only those he bclicves voluntary. It is only the

latter confessions that ure heard by the jury, which may

then, under this procedure, disacree with the judse, find

the contession involuntiury and ienore it. Given the in-

tegrity of the preliminary proccedings before the judce,

the Massachusetts procedur e does not, in our opinion, pose

hazards to the rights of a defendant. While no more will

be known about the views of the jury thar. under the po

York rule, the jury does not hear all contes sions whe

there is a fair question of voluntariness. but only apes

which a judge actually and Pn ntti Getermines to be

voluntary, based upon all of the evidence The judge's con-

sideration of voluntariness is carried ont separate and

aside from issues of the reliability of the confession and

the guilt or SRNOSONSS of the accused and without recard to

the fact the iss may &Gain be raised before the jury if

decided acainst ~~ Ccefendant. The record will show the

judge's conclusions in this recard and his findings upon the

underlying facts may be cxpress or ascertainable from the

record.' [imphasis added). com

.2.f

"In the instant case a hearing was conducted outside the

presence of the jury at which conflictina cvidence wes of-

fered and while the trial court did not set forth his iuling

as to the voluntary nature of the confession in precise lan-

guage, it is readily apparent in overruling the Motion to

Suppress that he consicered the confession voluntary and as

missible and as such ‘as a proper matter for the jury's con

sideration under the prior decisions of this Court. See

Brewer v. State, Okl.Cr., 414 P.2€ 559." (Footnote omitted)

Although the trial court here could have more cCistinctly expressec

his independent determination that the confession was voluntary, in view

of the grounds upon which the Motion to Suppress was urged, we are of

the opinion that the conclusion of the trial court in this regar¢e is

clearly ascertainable from the record. We reach this conclusion cn the

evidence adduced during the in camera hearing, coupled with the jucge's

affirmative statement: “I don't find under’ the evidence in this case

that as a matter of law, that it is unvoluntary [sic] statement.”

With regarc to the sufficiency of the evidence presented at the

above hearing, cefendant Williams does not content that he was inadquatecl-

advised of his rights or failed to comprehend the same, but argues

that he was subjected to repeated questioning over long hours while in

custody and coerced to execute the confession on threat of Gayle Kimbrouc?

Se.

being rearrested. In support of this argument, he cites Brown v.

State, Okl.Cr., 384 P.2d 54 (1963). However, that case is readily

¢.siinguishable as the proof there was clear and uncontroverted that

tho) Spoused had been subjected to severe beatings. Neither the evi-

he >

“ baie ‘ .

adduced at this hearing, nor the record as a whole, supports the

we:

-ontention that this defendant was subjected to repeated questioning

over long hours. He was not actually incarcerated until outsiée regular

court hours on Friday, November 2, 1973. These charces were thereafter

filed and a warrant issued on the first day the court was regularly

open the following Monday, and the confession was executed that even-

ing. The defendant then had his initial appearance before the trial

court the following day. In Fred v. State, Okl.Cr., 531 P.2e€ 1038,

1046 (1975), this Court stated:

"[MJere Gelay in arraicnment of a prisoner will not render

the statement or confession involuntary, nor inadmissibic,

if it is otherwise shown to be voluntary and given without

coercion, fear produced by threats or mistreatment, or

promises..."

Regarding the contention that the confession was coerced, we observe

that the instrument itself recites that the statement was voluntsarily

made and initiated by that defendant, and find that the evidence was

clearly sufficient to support the ruling of the trial court. As steted

in.Castleberry v. State, Okl.Cr., 522 P.24 257, 269 (1974), we have

repeatedly held:

“. .« »« This Court will not disturb the trial court's rulin¢e

permitting the introduction of a confession if Supportec hy

sufficient evidence that the defencant Knowingly anc intel-

- ligently waived his rights and understood the conscoauences

of said waiver. Warren v. State, Ok1.Cr., 495 P.2d 837."

In his third assignment of error, defencant Williams asserts as

error the refusal of the trial court to admit into evidence the video

‘tape statement he gave on November 3, 1973, wherein he exoncratec him-

self from involvement in the subject offense and attributeG the cormis-

. “

sion thereof to defendant Justus.

The general rule in this regard is sect forth in 29 Am.Jur.2d,

Evidence, § 535, page 586, as follows:

“When a confession is admissible, the whole of what the

accused said upon the subject at the time of making the

fay + * : “| -% , se

ve. ___ BEST COPY AVAILABLE

confession is admissible and should be taken together;

and if the prosecution fails to prove the whole staterent,

the accused is entitlee to put in evidence all that was

said to and by him at the time which bears upon the sub-

ject of controversy, including any exculpatory or sclf-

serving declarations connected therewith. . . . To be

admissible, however, it must clearly appear that the cx-

culpatory statciients were mace in the sare conics On or

oe A eer — - ae ;

Conversation soucnt to be introcucec ih evicence, anu mot

a upon Other or separate occasions. . . «” (Footnotes owitted,

ec LWwpnasis Pet an Oras o

See, Annotation 2 ALR 1017, supplemented at 26 ALR 541. This principle

has previously been recognized by this Court. See, Foster v. State,

8 Okl.Cr. 139, 126 P. 835 (1912); Haddock v. State, 64 Okl.Cr. 353, $1

P.2€ 339 (1938), and Henson v. State, 97 Okl.Cr. 240, 261 P.2ce 916 (1955)

However, only to the extent that the self-serving declaration is suf-

fiently relatec in both time and subject matter to the confession, is

there an adequate guarantee of testirnonial trustworthiness to justity

‘¢ : : . «= as Aw - . rh . - “31, 17 une o TAOoOMm fAMO OD

edr.ission as an exception to the hearsay rule. This viaec tape enc

. ss : 27 . —— — . —~ - 22 £4anvranrs © oo mse @ —

State's Exhibit No. 2A were here executed uncer different circumstance:

, a . -

on Gistinct occasions separated by two corplete days. We are, tnere-

fore, of the opinion that the trial court did not err in refusing ac-

mission un@er the above rule. Sec, State v. Barnwell, 17 W.C. 299, 194

-- $.m%.2nd 63 (1973), and State v. Thompson, 116 La. §29, 41 Se.2G 107

(1906). ; ;

Ve]

ie)

In this connection defendant Williams fuether argu

video tape statement Gid not constitute hearsay because this exculpatory

staterent was not offered to prove the truth of the facts therein

assertecé but to establish that his subsequent confession was involuntary.

Kowever, he cites no authority so holding in this context. The principlic

in this recard is set forth in 29 Am.Jur.2c, Evidence, § 497, pace 555,

as follows:

". . . The clearest case of hearsay is whcre a witness testifies

to the declarations of another for the purpose of proving tie

facts assertec by the dclarant. The hearsay rule, however,

Goes not operate, ever. “t from its exceptions, to rencer in-

acGmissible every statem « repeated by a witness as mece by

another pe.son. It Goes not excluce eviaence offerec to prove

the fact that a staterent was made or a conversition was hac,

rather than the truth of what was saic. Where the mere fact

that a statencent was made or a conversation was had is indcpen-

dently relevant, regardless of its truth or falsity, such evi-

dence is acmissible as a verbal act. ...” (Footnotes omittcc)

The record clearly reveals that defense counsel was fully afforded the

-17-

opportunity to cross-examine the State's witnesses as to the circumstance

surrounding the confession and the extent to which that Gefencant was

previously interrogated. We are of the opinion that, indepencent of the

truth value of the facts thercin asserted, the exculpatory staterents

containea in the video tape, in and of themselves, had ne material

probative value bearing on the voluntariness of his actions in con-

fessing two days later. Such argument is totally contrary to the

authority and rationale upon which the above stated rules are basec.

The fourth assicgnirent of error presen‘’2d by cefencant Williams

assumes the viceo tape discusscc immediately above to be admissible

but for prejudice to defendant Justus, and asserts that a severance

should have been granted since his co-cefencant objectec to the intro-

Cuction thereof. Since Gefendant Williars therein exculpatet Airscit

anc inculpated his co-defendant, the trial court refusec to admit this

video tape upen the additional greunds that to do se would be fatal

sa mte M . », PanwnAnay?

violative of Gelencant

(1°68). The United States Supreme Court there hela that upon joint

trial the government's introduction of the confession of a co-cefencant

also implicating the defendant violatec the latter's right of confronte-

tion under the Sixth Anencment to the United States Constitution.

We have already held that the trial court was correct in exclucine

this video tape as a self-servinc hearsay declaration not corine within

an exception to that rule. liowever, assuming arsuenco that this stetc-

ment was otherwise admissible, we further agree with the trial court

that the failure of defendant Williams to timely request 4 severance

precludeé the introduction thereof, since defencant Justus would thereby

have heer zenied the rioht of cross-exarination on a staterent purely

inculpatory as to him alone. The introduction of the tape would have

been particularly flagrant here since Gefendant Willians incicateda, in

testifying at the evidentiary hearing discussec above, that he hac not

thercin told the truth recarding any involvement of defendant Justus in

the subject offense. The record reveals that defense counsel for defen-

Gant Williams learned of the existence of this video tape at the prelim-

inary hearing. Howe er, a Motion for Severance was never f:°:' 4 with the

trial court, and this matter was not in any manner presentc:. to the

trial court until the above evidentiary hearing anc after the jury was

empanecllec. The Gefencant cites Clark v. State, Okl.Cr., 509 P.2d 1398

(1973), in support of this proposition. However, we there held that

a timely Gcfense motion for severance should have been cranted since

the State soucht to introduce a confession prejucicially violative of

Bruton. In the present case, defendant Williams sought to introduce,

in his own cefensec, a statement prejudicial to his co-defencant.

Neither the State nor the court shoulc be required to anticipate whether

one defendant might seek to introduce evidence so prejudicial to a co-

Gefendant that a severance would be necessitatece. We are of the clear

opinion that in such cases the correct rule is stated in Jones v. Statc,

*. . e It is this Court's op

‘rule that severance must he

counsel epprising the tri ct of u

Gevelop which might prejudice other comacfcnaants. Wathout

AS 4

such information a judce cannot be presume -¢ to know or can it

be consicerca to appear that prejudice will result from the

joincer. .. .-

In passing, we are constrained to observe that uncer the facts

anc circumstances here presented, the trial of this case @s concuctica

Gid not constitute a fatally prejudicial violation of the bruton rule.

Although in his confession defendant Williams indicatec that defencant

Justus encouraged him to kill the victim, and defencent Justus, in his

confession, asserted that there was not supposed to be any shooting, not.

confessions were otherwise perfectly compatible and not antagonistic

to one another. Neither defendant ever objectec to the introduction of

the confession of the other or moved for a severence upon this basis.

Each defendant subsequently took the witness stana ana was subjectcc to

cross-examination by his co-cefencant, and the trial court instructe

that each confession could be considered as competent evidence only as

to the confessor and not as to the other defendant. See, Davis v.

State, Okl.Cr., ___ P.2d » F-75-38 (1975) ; Gregor v. Statc, Okl.Cr.,

505 P.2c 519 (1973); Brown v. United States, 411 U.S. 223, 93 S.Ct.

.1565, 36 L.Ed.2d 208 (1973); Schneble v. Florida, 405 U.S. 427, 92 S.

S5¢

“nized that the introduction of photographs taken subsequent to a honi-

Ct. 1056, 31 L.Ed.2da 340 (1972), and HNarrincaton v. California, 395 u.S.

250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

The fifth assicnment of error of defendant Williams asserts that

the video tape statement of defendant Justus, State's Exhibit No. l,

should not have been admitted because the State aia not establish a suf-

“ficient chain of custody and therefore failed to adequately prove that

the exhibit had not been altered. This argument is predicateeé upon the

fact that Officer Coffia had maintained custodial possession by stor-

ing the tape in a closet at his home when not withdrawn for investi-

-gative or prosecutorial purposes. Assuring that under Bruton the ce-

fendant has standing to raise this issue, despite a limiting instruc-

tion that this was competent evidence as against the confessor only, ®

we find this proposition to be wholly without merit. Authenticity

was sufficiently established throuch Officer Coffia, who specifically

identified the vidco tape’ and testified at the above evicentiary hear-

ing that as presented this exhibit was a true and correct representa

tion of the actual events depictcd therein, and that the Original tape

had not been altered or tampered with in any manner. (Tr. 187-183,

195 anc 201-202) See Annotation 60 ALR3rd 333. This specific argurent

was upon like facts rejected in Paramore v. State, Pla., 229 So.2¢6 655

(1969), vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2657, 33 L.EG.

2a 751 (1972). Also, in upholding the admissibility of a video tape

confession in hendricks v. Swenson, 45¢ F.2d 503, 506 (8th Cir. 1972),

that Court stated:

“If a proper foundation is laid for the admission of a viceco

tape by showing that it truly anc correctly depicted the

events and persons shown, and that it accurately ‘reproduced

the cefendant's confession, we fecl that it is an advancerent

in the field of criminal procedure and a protection of defen-

dant's richts. ...

Defendant Williams argues, in his sixth assignment of error, that

reversible error resulted from the admission of the photocraph cf the vic

tim, State's Exhibit No. 3, since any probative value was clearly out-

weighed by the prejudicial and inflarmatory nature thereof. We do not

agree.

In Pate v. State, Okl.Cr., 361 P.2d 1086 (1961), we again recog-

cide is largely within the discretion of the trial court and not a cause

for reversal absent an abuse thereof, and have repeatecly applied the

principles set forth in the ninth paragraph of the Syllabus thereof, as

follows:

“Although it is error to receive in evidence grucsome photo-

. graphs of a homicide victim, Cesigned primarily to arouse

the passion of the jury, such photocraphs are admissibic;

when they are relevant to the issues before the court and

their probative value is not outweighed by the danger of

prejudice to the defendant."

Also see, Vavra v. State, Okl.Cr., 509 P.2a 1379 (1973)

State, Okl.Cr., 506 P.2d 580 (1975), together with case

therein.

Despite the presence of blood, the black and white photograph

involved in the ghastly nor grucscre,

flect th

—)

mer. 8. 2 oye

CONUAL ion

4 Jy

ew) *

sho ol

fession ‘of cach

officers and the pathologist. Althouch the Ce

hast kae

aa BROCCu

bocy the picture was taken, this is mere conjecture

not supported by the record. Other police officers arrivec at the sce

of the crime prior te Detective Knicht, but that witness testifice thé

the exhibit accurately portrayeé the body as he first observed t vict:

We acree with the State that the srearec blood Cepicted therein may have

been caused by the victim's own bocy movements or extraneous source

not necessitating the conclusion that the bocy had been movea. be,

therefore, hold that the photocraph was relevant to the issucs before

the jury, and that the probative value of the exhibit was not outweichee

by the danger of prejudice to the defendant.

The seventh assionment of error of defendant Williams asserts thet

prejudicial and reversible error occurred in the direct cxamination by

the State of Detective Knight resgardinc the details of the autopsy. The

complained of examination was as follows:

"Q. Now, Mr. Knight, you saw the Goctor, dicn't you?

"2.

"A.

Yes, sir,

Did you see him take her heart out?

Yes, sir, I did.

; .

"Q. Did you see him remove other organs of her body?

"A. Yes, sir, I did. ree

" "Q. Cut her in many pieces, didn't he?

"A. Yes, sir.

"Q. Was she dead?

"A. Yes, sir." (Tr. 374-375)

This proposition is also without merit, however, for the reason

that no objection was made to this testimony, and for the further

reason that defense counsel for the defendant Williams, himself, equally

inguired into this aroa, thereby waiving any error introduced by the

State. Although needlessly and imperfectly done, the record reveals

that the apparent purpose of the prosecutor in pursuing this line of

interrogation was to establish that the victim was dead and thereby an

element of the corpus Celicti as a predicate for admissibility cf the

confessions. No ebjection, request for adinonishinent, or Motion fo-

Mistrial, was interposed at the time of this eCxumination, rather, irae

diately following that examination defense counsel for defendant Williais

Ccross~exanined this witness as follows:

"Q. Now then. You stated to Mr. Harris that the coctor

took her heart out? :

"A. Yes, sir.

"Q. Did he find a bullet in it?

“A.- No, sir.

"Q. Did he tell you that was the heart?

"A. Sir, I have seen numerous autopsies.

* * &

"Q. Then did you cut what you saw him take out?

"A. Did I personally do this?

"Q. Put it in your hand an@ examine it?

"A. Wo, sir." (Tr. 375-376) Paces

Not until further trial proceedings the next day did defendant Williams

move for a mistrial Claiming prejudice upon this basis. The general

rule in this regard is set forth in paragraph three of the Syllabus of

Love v. State, Okl.Cr., 360 P.2d 954 (1960), as follows:

"It is the duty of counsel to raise at the proper time all

objections to the proceedings . . . and when this is not

done, they will be treated as waived unless they are of such

@ mature as to deny defendant a fair and impartial trial."

In this appeal the defendants additionally have the very able

assistance of briefs filed Amicus Curiae in Opposition to capital punish

ment by attorneys for both the American Civil Liberties Union of Oklahc:.

and the NAACP Legal Defense and Educational Fund, Ine., with leave

of this Court. Considering all the briefs together, we are urced

to hold the death sentences hercin unconstitutional for any ono of

the following reasons:

1. The death penalty is eruel an4d unusval punishment per se;

2. The scheme for enforcement of capital punishment within

this State is so permeated with unbridled discretion that

imposition of the death penalty would constitute invicious

@iscrimination and therefore cruel and unusual punishren¢;

~_—¢

3. The statutory classification of capital offenses in this

4. _ : . 34 : : +) - | — - os pera &3. m4 : o os

vate is so Giscriminatory, arbitrary, and vacuo that their

£ . — rN {A “J +7 -~4 - ‘ . ~ r 7

enrorcemen WOULG aeny COvas prececelc Qe. Gt ZOCGSS OF

law.

In the consolidated cases of Furman v. Georcia, Jackson wv. «4.

—_———-— +--+. ee ee ee ee Oe ae

and Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.24 346 (1972),

hereinafter cited by reference to the lead casc, the United States

Supreme Court rendered a per curiam opinior stating that:

". « « The Court holds that the imposition and carrying out

of the death penalty in these cases constitutes crucl and

unusuél punishment in violation of the Eichth anc Fourteenth

Amendments." (408 U.S. 239)

A majority of that court could not agree upon a more specific statement

of law for future application. Each of the nine merbers of the court

wrote separate opinions, with five justices joining in the per curiam,

_Gecision, and four dissenting therefrom. Only two meibers of the Inajor-

ity concluded that the death penalty was cruel and unusual punishirent

per se, while the remaining three were of the Opinion that death seon-

tences imposed under statutes permitting tle imposition of that penalty

or a lesser punishnent at the unbridled Giscretion of the judge or jury

resulted in invidious discrimination and therefore constituted cruel and

unusual punishment. That decision was recocnized and followed within

this jurisdiction, and resulted in numerous death sentences so imposed

being modified to life imprisonment. See, Pate v. State, Okl.Cr., 507

engec,.Pe2@ 915 (1973). Re at Cre -

Clearly, Furman does not Stand for the proposition that the

death penalty is cruel and unusual punishient per se. Contrary to the

contention that capital punishment is incompatible with contemporary

standards of decency, we observe that thirty-two states and the federal

government have enacted capital punishment statutes responsive to Furman

and by a two-te-one margin the voters in California adopted a State

constitutional amencment providing for capital punishment following

State court action which held the death penalty to be violative of

the State constitution. See: 17 Criminal Law Reporter 4030, contain-

ing a summery of the April 23, 1975, oral argument before the United

States Supreme Court on the issue of the constitutionality of capital

punishment in the pending case of State v. Fowler, 2685 N.C. 90, 203

S.E.2d 803 (1974), pet. for cert. to S.Ct. of N.C. grantca, 95 S.Ct.

223, 42 L.Ed.2€ 177 (No. 73-7031, Oct. 29, 1974); and, Act 29, House

Bill number 150, Vernon's Missouri Legislative Service, page 79 (1975),

approved subsccuent thereto on Junc 23, 1975. This Court hes previously

held thet the death penelty is not crvucl ane unvsual punishivent per se,

and now re-affirns the following lsenguage from FPesmire v. State, Okl.Cr.

456 P.2d 573, S&7 (1969), ceath sentence modified pursuant to Furman,

408 U.S. $35, 92 S.Ct. 2855, 33 L.Ed.2d 749 (1972), 502 P.2d 1042 (1972):

". . . Although the comparative merits of capital punish-

ment have heen presented in arguments before this Court

many times, anc the proponents of its abolition have argucad

its moral, legal, and social implications, neither this

Court, nor as yet the Supreme Court of the United States,

has seen fit to classify the imposition of capital punish-

ment as being cruel and unusual and thercfore in violation

of the Constitution of the United States."

Effective May 17, 1973, the Okléehoma Legislature repealed cepital

punishment provisions for Murder such as those under which death sen-

tences were held to be unconstitutional in Furman, anda enacted 2] O.S.

Supp.1974, § 701.1, et seg., in an effort to comply with the mancate

of that case. The defendants were here convicted under the provisions

of § 701.1, which insofar as pertinent provides:

“Homicide, when perpetrated without authority of law and with

a premeditated design to effect the ceath of the person killed,

or of any other human being, is murder in the first decree in

the following cases:

Se 2 ¢@

.', “2... When perpetrated by one committing or attempting to com-

| BEST COPY AVAILABLE

mit rape, kidnapping for the purpose of extortion, arson in

the first cecree, armed robbery or when death occurs following

the sexual molestation of a child under the age of sixteen (16)

years

Each dGefendant was thereafter sentenced in accordance with § 701.3,

providing in part:

“Every person convictee of murder in the first decree sha

suffer death. In the case of a jury trial, the jury she

Getermine only whether the defendant is guilty or not

Guilty of murder in the first degrec and upon a findine

of guilty shall so indicate on their verdict and state

affirmatively in their verdict that the defendant shall

suffer death. In a case where a jury trial is waived,

and the case is tried to the court, or upon a plea of

guilty te the court, upon a finding by the court that the

defendant is guilty of murder in the first decree, the

court shall enter a judgment and sentence of Geath. . . °

Although many of the other states responding to Furman with new

capital punishment enactments have not deemed the total abolition of

sentencing discretion to be necessary, the above statutory provisions

clearly climinate sentencing discretion for the crime of First Deerec

Murdcer within this State and are represcntiutive of the extreme appro:

necessary to curb the unfeticred sentencing discretion condemned in

that case. See Coimnent, Discretion and the Constitutionalty of the

New Death Penalty Statutes, 87 Harv.L.Rev. 1690 (1974). We are,

however, urged that prohibitive Giscretion remains within the scheme

for enforcement of capital punishm ent in this State. Specifically,

the argument is made that unbridled discretion persists in the follow-

ing respects: The prosecutor May Cecide what charge, if any, to file

and pursue an@ negotiate in behalf of the State for a plea of guilty

° to a reduced offense; the judge or jury trying the cause may find the

defendant guilty of a lesser included offense; this Court may moci fy

the death sentence to life imprisonment; and, the Governor may exercise

executive clemency in granting commutations and pardons. The contention

is also made that the jury may find the accused guilty of First Decree

Murder but refuse to affirmatively state in their verdict that the ce-

fendant shall suffer death as called for in 21 0.S.Supp.1974, § 701.3,

Supra. However, as to this latter contention we necd only observe that

the introductory sentence to that section makes the death penalty manda-

tory upon conviction, and direct attention to 22 O.S. 1971, § 927, which

“+ : 5 Y a ? .

provides:

"Where the jury fine a verdict of guilty, and fail to agree

on the punishment to be inflicted, or do'not Geclare such

punishment by their verdict, the court shall assess and de-

Clare the punishment ana render the judgment accordingly."

The briefs filed amicus curiae cite Cormonwealth v. A Juvenile,

Mass., 300 N.[£.2da 439 (1973), in Support of the proposition that Purmen

euvents to any discretionary imposition of the death penalty at all

levels. In that case the court held that Furman prohibited imposition

of the dcath penalty upon a juvenile under Statutory provisions whereby

even upon conviction as an adult the trial judge could within hie Ccis-

cretion either sentence the accused to death, or eliminate the possi-

bility of capital punishment by adjudicating him to be a delinguent

child despite prior judicial determination that he should be prosecuted:

@S an adult. Like Furran, this case deals with sentencing Ciscretior

by the judge or jury upon conviction, and does not stand for’ the propo.

Sition that a juvenile annet be certified for prosceuticon es an adult

on Otherwise valid Capital punishment Provisions. As so Construcd, that

case is perfectly in align with Purman.

Since the decision in Furman, this argument has, in whole or

part, been presented to the highest court of at least six states, and

to the extent offered hes been consistently rejected. Thus, in State

Ve varrette, 284 N.C. 625, 202 S.E.24 721, 741 and 743 (1974), that

court reasoned in part as follows:

“The arguments of the Gefencant and of the amicus curiae

- + + May be summarized as follows: e « « Although ...

the imposition of the death sentence {is} manaatory upon

conviction of first @ecree murecr or rape, the death

penalty is nevertheless Ciscretionary and selective be-

cause (a) the Solicitor has the power to prosecute for a

lesser charge, (b) the jury has the power to acquit or to

convict: of a lesser Cherge, and (c) the Governor has the

power to conunute the sentence or grant a Pardon; ...

ef @

"The Equal Protection Clause of the Fourteenth Amendinent

makes no distinction between sentences to death and sen-

tences to imprisonment. The Due Process Clause of that

amendment protects liberty as well as life. The discretion

in the Solicitor, in the jury ane in the Governor, of which

the amicus curiae complains, extends also to non-capital

cases. If the existence of these discretionary powers

makes the imposition of the death penalty unconstitutional,

it would also make unconstitutional all prison terms, however

long or short. Quite obviously, this is not the kind of dis-

Cretion which the Supreme Court of the United States hele

impermissible in Purman v. Georgia. . . ."

Also, In Jefferson v. Commonwealth, 214 va. 747, 204 S.E.2a 258, 260-

261 (1974), thet court refused to extend Furran beyond Ciseretionary

sentencing and held:

"While conceding that death is the only penalty which may be

imposed upon conviction of Killing a prison G@UGGEG . « «

defendant argues that 'the Statute's operation inevitab}

requircs the exercise of a bread rance of uncontrolled

tive discretion’ by Cormonwealth's attorneys and trial

end that the Governor of Virginia could extend executive

Clemency. ...

Ly. t?

“

"The substance of this argument is that a statute imposing

the death penalty is constitutionally infirm under Purman

where any discretion may be exercised by any authority at

any time, either before, during or after trial.

"We Go not so construe Furman. The constitional infirmity

there was found in fixing punishrent, be it by @ jury or a

judge. Furman's epplication is thus limited to statutes

which permic such discretion to be exercisod."

With particular regard toe prosecutorial discretion, the court in

Jarzrettc, supra, stated in part as follows:

- * « The decision of the Solicitor as to the offense for

which he will seck an indictment from the grana jury and

i 8 aS to whether to aceepe, with the perrissio:

ict, &@ ples to a lesser Charge, included within ¢

ified in the indictment returned, are the results

tion of the available evidence, including its

Crecibility. The Solicitor's cecision to charge a defendant

with a crins, punishable by death if he is convictec, is a

solemn one, properly reached only when, in the Solicitor's

judgment, the evidence of guilt is clear ana convincing.

This is a human evaluation. There is often room for ciffer-

ence of opinion concerning it. To Sey, aS dcoes the bries

of the amicus curiae, that because the Solicitor Getermines

in many cases that he should seek a conviction of a lesser

offense, his Gecisions to seek convictions on capital charges

in other cases are "freakish' is a patent absurdity ...

‘

‘¢

éi

"The purpose of vesting the power of jucement in an official

is to enable hir to make different decisions in Gi ffereiit

ceases in light of what he determines to be materially cif-

ferent factual Situations. All governmental actions are bosed

on this delecation of responsibility. The Fourteenth amendment

to the Constitution of the United States does not reauire a

State, in the enforcement of its criminal] Jaws, so to hedge

its Prosecuting attorney about with ‘guidelines' that he

becomes a mere automaton, acting on the impulse of a com-

puter and treatine all Persons eccused of criminal concuct

exactly alike. From the foundation of the country to the

present date, the Giscretion, now complained of by the amicus

curiae, has been vested in prosecutine officers throuchout

the country. Without it, the greatest injustices would nec-

essarily be inflicted upon innocent persons accused of crime."

(202 S.L£.2d 741-742) ;

’

Additionally, this Court has recently recocnized the legislative

curtailment of circumstances in which the trial court can, pursuant to

plea bargaining, accept a plea of guilty to a lesser included offense

-27-

—<

reduced from First Degree Murder in State ex rel.

Young v. Warren, Okl.

Cr., 536 P.2d 965, 971-972 (1975), wherein we stated in part:

"Since the trial court is required, before

giving... an

instruction on a lesser offense, at a trial for Murder in

the First Degree, to cause the record to reflect the evi-

Gence upon which he bases his instruction

for the lesser

Offense, [See 2} 0.S.Supp.1974, § 701.3, infra} it neces-

Sarily follows that he may not constitutionally a)low plea

bargaining between the State and the defendant, or @efen-

cants, unless the following conditions are

het ;

"In all capital cases where a preliminary examination has

been coneucted on the Charce of Murder in the First Decree,

as in the instant case, and the testimony taken at said

preliminary examination is sufficient to hold the defen-

dant, or icfencants, for trial, and the defendant, or de-

fendants, thereafter enters a plea of not guilty at arraicn-

ment, the trial court, before permitting a

reaguction of the

charge from Murder in the Pirst Degree to any lesser offense,

UST require the State, by competent evidence to establish

that sufficient evidence exists to establi

sh that the Gefen-

° dant, or defendants, was guilty of the lesser included of- .

fense, and not Murder in the First Decree.

Wwe reiterate

that to co otherwise would vioiate the clear intent of 21]

0.S.Supp. 1974, § 701.3, and render uncons

provisions of 21 0.8.Supp. 1974, § 704.2,

titutional the

of the United States Supreme Court in Furman

fo a Nothing in this opinion shall be cons

ye 4-1 . - 4 f 4-696 oo, ¢ ~. > Ia fannante

2ng t2e State from Slanelns tne COLCHRCAUCS

tal or otherwise, inmunity from prosecution, so long as t

immunity eranted conforms to the Constitution and statute

the State of Oklahoma ana the Constitution

United States.

“We emphasize that the procedure detailed

nally charged with Murder in the First Des

21 0.S5.Supp. 1974, § 701.1.

"Nothing in this opinion should be construed as prohibitins

the trial court from instructing in the manner provicec by 21

above, is a

only to cases wherein the defencant, or Gefendants, was

rec in viol

neti w =

es . cn.

]

in any case, capi-

Ss ©1

ans, ~ ~ cr 4e2

ants stat utc » vm ar

O.S.Supp. 1974, § 701.3, if the evicence on trial warrants an

instruccion on a lesser Offense.'

With regard to instructions on lesser included offenses, 21 0.s.

Supp. 1974, § 701.3, provides:

". « « In @ jury trial for murder in the f£

in this section shall preclude the trial judce

irst Ccegree, nothing

from instructing

the jur regarding lesser and included offenses and lesser do-

J 3 J

grees of homicide if the evidence warrants

but in every instance where an instruction

Such instructions;

authorizes the jury

to consider lesser and included offenses and lesser degrees of

homicide, the judce shall state into the record his reasons

for giving the instruction basec upon the evidence adduced at

trial."

The State of Delaware is the only jurisdiction noted to secmincly

adopt the view now urged upon us that prohibitive discretion remains

where the judge or jury trying the case may find

a lesser included offense. In State v. Sheppard,

7 7 ho

the accused guilty of

Del.Supr., 331 A.2d 142

(1975), that court held constitutional a recently enacted statute Inakine

Capital pupishment mandatory for first degree murder, assuming uniform

application, and further restated in part the following dictum from

State v. Dickerson, Del.Supr. 296 A.2d 761, 769-770 {2272), as follows:

“te * * the result reached here does not necessarily solve

the problems created by the Furman decision for any state

wishing to retain capital punishment. History shows tha

the mandatory death sentence for first Gegree murder is also

open to caprice and discrimination in the imposition of the

Geath penaity. The jury's route for the exercise of such

Caprice and discrimination, historically, is to return a

verdict for a lesser-included offense carrying a lesser pen-

@ity. « « «

: "*Obviously, any lack of uniform application - any Ciscrir-

ination or caprice in the imposition of the death sentence

via the lesser-included offense route - will expose the manca-

tory ceath penalty provisicn of the Murder Statute, hereby

upheld, to the same condemnation as was accoréed the Mercy .

' Statute in the Furman case.'" (331 A.2dG 144-145)

However, in both State v. Hill, La., 297 S.2€ 660 (1974) and Stato wv.

Selman, La., 300 S.2d 467 (1974), that court rejected the contention

. ‘ a? Pr rer. 3 ~ - des _ 04 et-< neem aad fae tas F — ee

that lesser included or responsive verdicts provided for by statet. pore

In State v. Dixon, Fla., 283 S.246é 1] (1973), that court uphelée a carital

punishment enactment responsive to Furman, which unlike our statute

requires a judge and jury to weigh aggravating and mitigating circumstenc.

before assessing the death penalty. That court reasonec, in part, as

follows:

“. . . The mere presence of diseretion in the sentencing pro-

cedure cannot rencéer the procedure violative of Purren \

Georgia, . . .; it was, rather, the quality of diserction

and the manner in which it wes applied that Cictatede the

of law which constitutes Furinan v. Georgia, ...

"Discretion and judgment are essential to the jucicial process,

and are present at all stages of its progression - arrest, ér-

raignment, trial, verdict, and onward through final appeal.

Even after the final appeal is laid to rest, complete ciscre-

tion remains in the executive branch cof government to honor

or reject a plea for clemency. ...

"Thus, if the judicial discretion . + « Can be shown to be

reasonable and controlled, rather than capricious and discrir-

inatory, the test of Furman v. Georgia, .. . has been met.

What new test the Supreme Court of the United States micht

develop at a later date, it is not for this Court to suggest.”

(283 S.2d 6-7)

Also, in Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974), that

court upheld a new capital punishment enactment which required the judge

, , a "woth euye* & ov . ote . z

-29-

or jury to first find the presence of one of several prescribed aggrave-

ting circumstances before the death penalty could be assessed. In so

holding, the court reasoned in part as follows:

"eo « « The U.S. Supreme Court's multiple-opinion decision

in Furman and Jackson seems to leave the door ajar, .., .

at least to some extent, for new legislation by the States

permitting the exercise of sore controlled diseretion

throuch the use of objective standarés by which the sen-

tencing authority may be guided in imposing the penalty of

Geath. The States are free, we must conclude, to provide

a new system short of mandatory application, ...

". « «The essential question is not whether our new Geat!}

Statute permits the use of some discretion, because acinit-

tedly it does, but, rather, whether the discretion to be

exercised is controlled by clear and objective Standa

SO @S to produce non~-ciscrininatory application. Af

all, some discretion is inherent in any System of ju

from arrest to final review. In the sane Context, £

example, the U.S. Supreme Court's ‘decision to grant

. deny certiorari is by law disczetionary and the Gecisicnr

to hear argument on appeal has of necessity also come to

" of

tcerQh

depend on an element of discretion. ' Goldber¢e and Persho-

witz, Declarine the Death Penalty Unconstitutional, 83

Harv. L.Rev. 1773, 1603. Locically, it is not discretion

per se which must be Ccondenned, but it is uncuiced dis-

Cretion that dees not "produce everhandeé Justice.’”* (264

5.L.2d 615-616)

Finally, in Jurck v. State, 522 S.w.2a 934 (Tex.Cr.App., 1975), that

Court inmost recently upheld a new Capital punishment scheme which reguires

thet the jury unanimously find against the defendant with reference to

all three statutorily prescribed aggravating categories before the trial

court shall then sentence the accused to death. In so holding, the

court reusoned in part as follows:

"Some discretion is inherent and desirable in any system of

justice, from arrest to final judgment. * * * phe more pre-

sence of Ciscretion in the sentencing process does not rencder

that procedure violative of Furman. It is rather the quality

of discretion and the manner in which it is applicd thet must

be controlled. To eliminate all diserction on the part of

the jury would be to risk elimination of that valuable ele-

went which permits indivicualization based on consideration

of all extenuating circumstances and woule eliminate the

Clement of mercy, one of the fundamenta) traditions of our

System of crininal jurisprucence. If discretion in the asses-

sment of punishment under a Statute can be shown to be reason-

able and controlled, rather than capricious and discrininatory,

the test of Furman will be met." (at page 940, footnote

omitted)

This Court indicated that 21 0.S.Supp.1974, § 701.3, should be

Strictly construed to permit lesser included instructions only where

Clearly appropriate in Murray v. State, Ok1.Cr., 528 P.2a 739 (1974),

..Wherein we held that an instruction vpon Second Degree Murder was in-

proper in a First Degree Murder prosecu .on allegecly perpetrated pur-

Suant to an armed robbery. In accordance therewith, an instruction

upon a lesser included offense was not app»opriate or given in the

present case. However, we are of the opinion that as so construcdé the

approach introduced through this statute is the only Satisfactory and

elawful manner in which both the interest of the defendant in a fair

and impartial triai by jury and the right of the State to fully prosecui<

may be maintained. To the extent that instructions upon appropriate

lesser included offenses are not Submitted, the jury would not havo

the opportunity to consider whether the defendant might only be guilty

of a less serious crime, and he would thereby effectively be deprived

of his richt to a full and complete trial by jury. Also, since jeopar¢:

would attach to further Prosecution upon any offense necessarily incleuce:

Within that charged, in the selection or election of charces, the pYrose-

As to appellate review, 21 0.S.Supp. 1974, §§ 701.5 anda 701.6,

respectively, provide:

"The Court of Criminal Appeals when reviewing a judgement

and sentence of death shall, in the first instance, determine

whether errors of law occurring at trial require reversal or

modification, but if the Court shall determine that there

are not errors of law in the record requiring reversal or

modification, the Court shall then convene for the purpese

of reviewing the sentence of death. The Court shall sct a

date certain for an €evicentiary hearing, the purpose of

which will be to determine if the sentence of death cor-

ports with the principles of cue process anc equal protcec-

tion of the law. Upon the hearing the Court shall Getermin-

whether the sentence of death was a result of discrimination

based on race, creed, econonic condition, social position,

class or sex of the defendant or any other arbitrary fact;

and the Court shall specifically Cctermine whether the scn-

tence of death is Substantially disproportionate to the

penalty imposed in similar cascs, considering both the

crime anc the defendant.

"Should the Court determine that the sentence of Ceath is

discriminatory or is substantially cisproportionate to the

penalty imposed in similar cases, considering both the crire

and the defendant, the Court shall mocify the sentence of

death to life in the penitentiary at hard labor."

In our Interim Opinion herein, we rejected the contention that 21

0.S.Supp. 1974, §§ 701.5 and 701.6, introduce or perpetuate another dis-

cretionary level in an already discretionary riddled system. Pursuant

thereto the evidentiary hearing contemplated therein was assigned anc

heard for the purpose of dctermining whether the sentence of death was

the result of discrimination or substantially disproportionate to the

penalty imposed in similar cases, and thereby violative of principles

of due process and equal protection of the law. No evidence was offere

by either the defendants or the State upon that hearing. Rather, short}

prior thereto each cefendant filed a motion requesting that this Court

establish guicelines for the review of death sentences under those statx

tory provisions, and each party hereto candidly indicated that without

such guidclines these statutes were so vague and uncertain that they

were unaware as to how to proceed.

We are now of the opinion that 21 0.S.Supp. 1974, §§ 701.5 and

701.6, are unconstitutional. The provisions regarding the hearine con-

templatec therein are so vegue, indefinite and uncertain that they are

incepable of rational interpretation and implementation without acditicr:.

legislation. Also, such a hearing is duplicitous to that procedure pre-

court upoa any legal issue, including suc

ples of due process and egual protection of the lav, with this Court the:

fulfilling the role of appellate review rather than a covrt o

pression. We do not by our Gecision herein, however, in any manner pre-

clude or limit the right of a defendant before this Court on appeel to

present a Motion for New Trial based upon newly discovered evidence és

otherwise provided for in 22 0.S. 1971, § 953. See aisc, Rule 2.12, 22

0O.€.Supp 1974, Ch. 18, App. Wothing in this opinion shall precluce the

; hs

_@efendants from asserting violation of constitutionally cquaranteed right:

not dealt with in this opinion in a post conviction proceeding under the

provisions of 22 0.S. 1971, § 1080, et seg. Further, unéer the mandator:

scheme of capital punishment aGoptead by the Legislature, we are of the

opinior. that the proper remedy, where otherwise speceneiate, ter depriva-

tion of any accused's right to. due process and equal protection of the

law is reversal for a new trial rather modification to life imprisonment.

The exercise of such modification powers by this Court for an offense

which the Legislature has otherwise mandated capital punishment would

be violative of Furman. The power of this Court to modify a sentence

imposed by the jury or the trial court must be within the limits of the

statutory provisions governing the particular.crime charged. Sec,

brown v. State, Okl.Cr., 314 P.2d 362 (1957). Since the Legislature

has now provided but one sentence for the offense of First Degree Murcer,

the appropriate inquiry is whether a conviction for First Degree Murder

is consistent with the law and not whether a sentence of death is sub-

Stantially disproportionate to the penalty imposed in similar cases.

Those cases under the mercy statutes which preceded 21 0.S.Supp. 1974,

S 701.1, et seg., are now irrevelant insofar as the assessment of

punishment is concerned. Of course, any discriminatory epplication of

the current capital punishment provisions covld be presented as a vio-

lation of a Gefendant's right to equal protection of the law. The un-

constitutionality, however, of 21 0.S.Supp. 1974, §§ 701.5 and 701.6, éo

not render the remaining provisions of that Act unconstitutional since

those provisions were enacted with a severability clause attechec. S«4

Nouse Bill No. 1101, Oklahoma Session Laws 1973, Chapter 216, pegor 24°

252.

Article VI, § 10, of the Cklahema Constitution grants the Covernor

authority to commute or pardon those convicted of capital offenses upon

a favorable recommendation by a majority of the Pardon and Parole Board.

We cannot agree that such a system of executive review must, as such,

ss .

introcuce invidious discriminstion. In this regard we join the court

in Jarrette, supra, in reasoning that:

“It is guite true that... the Constitution of North

Carolina gives to the Governor of this ftate the author-

ity to commute a death sentence imposed upon any cefen-

dant, or to grant to such defendant ean absolute pardon,

and to refuse to disturb such sentcnce imposed upon a

@ifferent defendant. . . . [T)he Coustitution of the

United States confers a like power upon the President.

So far as we have heen able to determine, a like power

is vested in the Governor, or some other official of

the Executive Departrent, in each of ovr states. This

power has existed end has been exercised repeatedly by

the Governors of every state and by the Presicent of

the United States from the birth of our country. If

its existence and frequent exercise makes the imposition

of the death penalty unconstitutional per se, the nine

Justices of the Supreme Court of the United States

wasted .a great deal of thought and much paper in Furman

v. Georgia, .. . None of then so sucgestec in that casc.

", . . The Governor exercises his judgment after investi-

gation of the record of the trial and other circuinstances,

inclvding subsequently discovered evidence. This Court re-

vicws the rulings of the trial judge. The Governor reviews

wie decision of the jury, which we muy not do. The exercise

by one Governor of this judgment, resulting in the conmuta-

tion of the sentence of one man convicted of murder or rape

and the refusal to commute the seiitence of another convicted

of such crime. cannot be called 'freakish' or ‘arbitrarv'

merely because ancther Governor might, theoretically, have

reached opposite conclusions." (202 S.E.2d 742-743)

We are further fortified in this regard by the lan Juage employed hy the

United States Supreme Court in the post-Furman case of Schick v. Reed,

U.S. » 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), as follows:

» » « [T}]his Court has long read the Constitution as

authorizing the Presiénet to deal with individval cases

by granting conditional pardons. The very essence of the

pardoning power is to treat each case individually.

—. &

". « « Individual acts of clemency inherently call for

discriminating choices because no two cases are the sane.

“

As there recognized by the United States Supreme Court, this was th«

Statc of the law at the time of their previous Cecision

there was no incication in Furmen that the power of executive clerency

had resulted in the invidious discrimination therein criticized.

¥e therefore hold that the scheme for enforcement of capital pun-

ishment within this State under the provisions of 21 0.S.Supp. 1974,

§ 701.1, et seg., as construed, does not constitute cruel and unvsva?

punishwent and is not violative of the Eighth and Fourteenth Amendments

Supreme Court in Furman.

We consicer next the argument that the statutory classificition

of capital offenses under which the Geferdants were convicted is sco

arbitrary, discriminatory, and vague that enforcement of the death pen-

alty would deny cgual protcction and due process of the law in violation

of the Fourteenth Amendment to the United States Constitution. Anong

other cases cited in support thereof is Skinner v. Oklahoma, 316 U.S.

535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), wherein the United States

Supreme Court held that a statutory scheme providing for the steriliza-

tion of habitual criminals was violative of the Equal Protection Clause,

as the Act provided for the sterilization of those convicted of such

offenses as larceny by theft or fraud, but exempted those convicted of

ets: GSuch Offenses as cmbezzlement, crimes which may be distinguished upon

* only so subtle a basis as when the felonious intent arose. In so hold-

ing, the court there reasoned in part as follows: |

", . . When the law lays an unequal hand on those who have

committed intrinsically the same quality of offense...

it has made as invidious a discrimination as if it had

selected a particular race or nationality for oppressive

treatment. . .." (316 U.S. 541)

However, we further observe that the court there recognized that:

“, . Under our constitutional system the States in deter

mining the reach and scope of particular legislation need

not provide ‘abstract symmetry.’ .. . They may mark and

set apart the classes and types of problems accorcinge to

the needs and as dictated or suagested by cxperience. . .

We must remember that the machinery of government would

not work if it were not allowed a little play in its joints.

Only recently we reaffirmed the view that the equal protec-

tion cleuse dees not prevent the legislature from recou=

nizing ‘degrees of evil' .. . ‘the Constitution docs not

require things which are different in fact or opinion to

be treated in law as thouch they were the same.' .. .

Thus, if we had here only @ question as to a State ' s clas

sification of crimes, such as emoezzlement or larceny, no

substantial federal question woulé be raised. .. .

State ig net constrained in the exercise of its 1

power to ignore experience which mexks a cless of of

’

"or a

ide

ty Q sy

ox a family of offenses for special treatwent. Nor is it

prevented by the equal protection clause from confining

‘its restrictions to those Classes of cases where the need

is deemed to be clearest.' . . . ‘'{T)Jhe law dces all that

is neeced when it does all that it can, indicates a policy,

applies it to all within the lines, and seeks to bring

within the lines all similarly situated so far and so fast

as its means allow.'" (316 U.S. 539-540, citations omitted)

Of the various classifications of capital offenses set forth in

21 0.S.Supp. 1974, § 701.1, the Gdefencants were convicted under one of

the "fcelony-murder" categories deemed by the Legislature to he of su

rather than

‘a)

a nature that they should be classificd as First Deore

Second Degree Murder under 21 0.S.Supp. 1974, § 701.2. Although we «re

‘

urged that each of the ten paragraphs enumerated within the aforeine

statute are upon this basis unconstitutional, as previously observed tues.

provisions were enacted with a severability Clause attachcc, see House

Bill No. 1101, supra, ane we are therefore of the opinion that the ce-

fendants have standing to raise this issue only to the extent that the

unlawful and premeditated perpétration of homicide while committing or

attempting to commit armed robbery may constitute such a classification.

We are of the opinion that this aspect of the statute cannot

seriously be argued to be indefinite or vaguc, and contrary to the

contention that such a classification is arbitrary and discriminatory

we find the same to constitute a legitimate ond reasonable exercise of

police power by the I*gislature. See, Jefferson, supra, where the court

rejected the contention that a statute mandating capital punishment upon

conviction of a prison inmate for killing a quare was unconstitutional

because of the classification of persons to whom applicable. Also, in

Finley v. California, 222 U.S. 28, 32 S.Ct. 13, 56 L.Ed. 75 (1911), the

United States Supreme Court upheld a state statute mandating the death

penalty for those serving a life sentence in a state prison who committec

a malicious and felonious assault upon another, anda rejected the content::

that such an enactment denied the accused the equal protection of the le:

and was discriminatory as between hir an@ those convicts serving lesser

terms. Prior to Furman, simple armed robbery, as well as the attempt to

commit the same, was punishable by Geath or imprisonment at the Gisecretic:

of the jury under 21 0.S. 1971, § 801, irrespective of whether homicice

resulted in the commission thereof. This was also true of kiéGnavpins for

the puxspose of extortion end first degree rape uncer 21 0.8. 1971, §&& 745

anc 1115 respectively. These are felonies whieh have traci tionally “esc

recegnized as being of such a nature that the ultimate penalty of Goeth

should be authorizec. Clearly, the Legislative purpose in classifyine

- certain "felony-murders" as first Gegree rather than second degree rurcer

was to Geter, with the ceath penalty, thosc crimes of a particularly

heinous and brutal nature és well as those felonics necessarily involvin?s

great risk of ceath or serious bodily injury to the victin. Of course,

mandate the death penalty for the underlvine felony, irrespective o

whether homicice resulted, might well ¢ to encourace the murscz

of the victim, since the perpetrator of sic. Felonies coulé now incur

no greater penalty and may thereby better conceal his crime. This

Court previously wu held the imposition of the death snalty for simple

4 i

armed robbery uncer the above statute in Lllis v. Statc, 54 Okl.Cr. 295,

19 P.2a 972 (1933); and in Robarcs v. State, 37 Okl.Cr. 371, 259 P. 166,

167 (1927), we previously recocnized that offense to be of an intrinsical

Gistincguishable quality in rejectine the contention that the punishment

then provided therefor constituted crucl and unusual punishment as follo

". . .[R)Jobbery by firearms, where resistance of the

person sought to be robbed may be expected to result

in death or serious bodily injury at the hands of the

one engaged in such crime, is of so serious a nature

and consequence that we cannot say, as a matter of

law, that the punishment fixed by the statute makes

it cruel or unusual, within the meaning of the Consti-

tution. . . .”

Pursuant to Rule 2.12 B, 22 0.S.Supp. 74, Ch. 18, App., ana

subsequent to perfecting this appeal, defendéi:.t Justus filed with this

Court a Motion for New Trial based upon newly discovered evidence. That

Motion was predicated upon an affidavit purportedly executed by his co-

defendant, bobby Joe Williams,’whcerein the latter admits guilt of the

subject offense but further states that he perpetrated the crime alone.

Assuming that'his co-defendant would so testify upon a retrial, we are

of the opinion that such testimony is cumulative and there is no reasen-

able’ probability that a @ifferent result would follow upon a new trial.

At their joint trial, the State introduccé the confession of each

of the above defendants, and both confessions were in all essential re-

spects mutually compatible anc not antagonistic with regard to the in-

volvement of the other defendant. Both the defendant took the witnecs

stend in their own defense, and testified that the confessions were made

under duress and were not their own statements. Defendant Justus introe-

duced the cefense of alibi, anc was supported therein by the testimony

of his wife. Defendant Williams denied any participation in the crime

and any knowledge thereof and, in cross-examination by defense counsel

for defendant Justus, further testificd that he hac previously implicated

his co-defendant under duress and that he had no knowledve that defendcars

Justus had been involved in the offense. The only new matter thus pre-

sented by this Motion was that defendant Williams assumed sole responsi-

bility for the crime, contrary to his sworn testimony at in camera pro-

ceedings before the trial court and in the trial itself, as well as his

unsworn confession and a prior statement wherein he inculpated defendant

Justus alone.

As set forth in paragraph two of the Syllabus to Williams v. State

Ok1.Cr., 220 P.2d 836 (1950), this Court has repeatedly held:

"A new trial should not be granted upon the ground of newly

discovered evidence where the same is merely cumulative.

It must appear that, if the newly discovered cvicence had

been introduced in the trial, there is a reasonable proba-

bility that a different result would have been reached."

pov ot oIn Wells v. State, 16 Okl.Cr. 461, 184 P. 465 (1919) and Whitworth v.

State, 80 Ok1.Cr. 239, 158 P.2d 364, reversed on other grounds on rebecrs

80 Okl.Cr. 239, 159 P.2d 277 (1945), this Court was previously presented

with this question under similar circu; ances. In Wells we stated that:

"The defendant filed a motion fc» a new trial upon the ground,

among other grounds, of newly di:covered evidence; the newly

discovered cvicence being contained in an affidavit made by

Said A. J. Scimen while in jail after his conviction, in which

he fully refuted the evidence given by him on the trial of

this case, and asserted that he alone, without the knowlcdce

Or assistance of the ccefendant, committed the larceny charged

while at the Gance, and completely exoncrated the defendant

from any complicity therein in any manner, and that he (affiant)

had not communicated the facts stated in said affidavit to the

defendant, or to any one, until after the trial in this case

had been had. The court announced that it did not kelicve the

averments of the said affidavit, overruled the motion for a

new trial, and the defendant excepted.

x * &

"Seiman on the trial of the case having testifie.. that he had

no knowledge of, or connection with the commission of the lar-

ceny charged, certainly no evidential weight could be given to

the said newly @iscovered evidence, the averments of his affi-

Gavit ‘that he alone cormitted the criwe charged, and @id so

without the knowlecge or assistance cf the defendant,’ and the

court did not err in overruling the motion fcr a new triel]."

(184 P. 466-467)

Furiber, in the Syllabus and decision in Whitworth, ~ ‘tated that:

"A motion for new trial was made upon grounds - .24wly dis-

covered cvidence, and supported by affidavit c. .. sndani's

brother (who was a co-defendant and had been co:victed and

was scrving a sentence in the State penitentiary), that affi-

ant and another committed the crime and that defendant was

not present and had no knowledce thereof, affiant having pre-

viously testified at the trial of defendant that he had no

part in the commission of the crime; Hele: that such shcwing

does not entitle the defendant to a new trial as a matter of

right, but calls into exercise the sound discretion of the

court, and such motion should be overruled unless the trial

court believes that such recantation is probably true, anc

that anothcr trial might result in the acguittal of the defen-

dant.

"The practice of granting new trials upon affidavits of per-

sons who have been convicted and then change their testimony,

admitting that they had committed perjury, is not looked upon

with favor by the courts.

Se | <<

", . . It would be setting a dancerous prececcent to permit a

Gefencant to go upon the witness stand and commit perjury by

testifying to his innocnece, and that of his co-defendant,

and then when convicted make an affidavit admitting his per-

jury, . . ." (158 P.2d 364 and 368)

The confession of defendant Williams, wherein he alsc inculpatec

defendant Justus, was not competent evidence as to the latter, and the

jury was so instructed. However, even assuming otherwise, defendant

Justus would nevertheless not be entitled to a new trial as a matter of

law since there was other evidence clearly sufficient to support the

—-——— —o

verdict. In Ryal v. State, 16 Okl.Cr. 266, 182 P. 253 (1919), we

held that:

Also se

. « « An affidavit of a material witness for the state

that he perjured himself on the trial of the defendant,

. . « [does] not as a matter of right entitle a defendant

+o a new trial; but the granting of same is a matter of

Giscretion of the trial court, and the court, under such

stute of the record, shovld not grant a new trial unless

the court, in the exercise of its sound “iscretion, de-

termincs that the recantation of the witness was probably

true. « + «°

ec, Tobler v. State, 87 Okl.Cr. 25, 194 P.2a 202 (1948).

* . s * ’ . - “

In view of the verdict of the jury and the evicener presented, we

are pexsuaded that defendant Williams' version of the matter has run e

full ga

mut. He first gave a statement implicating @efencant Justus alone;

he next gave a confession mutually compatible with that of defendant

Justus, he then testified at the trial denying any knowledge of theesub-:

ject of

for the

fendant

he prev

by the

his pre

sistent

there i

upon re

decision issved an order overruling the aforesaic Motion for

fense, and finally, he now asserts that he was solely respon

crime. We are of the opinion that the present affidavit

435)

Williams is essentially cumulative to the exculpatory cestimony

iously extended to defendant Juctus and the alibi proof offered

latter, and that testimony of defendant Williams consistent

sent affidavit would be so far impeachable with his prior

with

incon-

statements that in view of the evidence previously presented

s no reasonable probability that a different result woulca

trial. Accordingly, on August 1, 1975, this Court by unan

Cry?

Pursuant to Rule 1.11 of this Court, 22 0.5.Supp. 1974, Cn.

_App., this case was previously assigned and heard for oral argume

Sanare

follov

Trial.

nt. We

have now carefully reviewed the entire record before this Court, Anc

thoroughly considered the argument ana authority presented and have de-

termined that the record is free of any error of law requiring reversal.

The judgment and sentence of each defendant is, accordingly, AFFIPMED.

Pursuant to Rule 1.18, 22 0.S.Supp. 1974, Ch. 18, App.-, the de fer.-

dant is advised that any Petition for Rehearing herein must be filcd

with the Clerk of this Court within fifteen {15) days of the date upon

which this opinion is filed therein.

AW APPEAL PROM THE DTrace? COURT, OVO COUNTY, OF1s1Or"

Ore reer eee eh bead eel? CORWINGWI: Wallin

[AMS

of First Deorce Murder;

BOBBY JOE W?

of the offe::

appeal. Ju.

R. L. WELDON and

H. A. LEATH ER? AN,

OKLAHOMA CITY, OKLAHOMA,

and ALLEN CLAYBURN JUSTUS,

were sentenced to

‘ent and sentence AFFIRMCD.

appellant, we:

Dew’

convicted

nN, and

Attorneys for Robby Joe Williams,

DON ANDERSO!,

OKLAHOMA COUNTY,

PUCLIC DOFENDER,

OKLAHOMA,

Attorney for Allen Clayburn Justus,

PHILLIP F.

HORNING,

OKL

MA CITY,

AMERICAN CIVIL LIBERTIES WilON OF

OKLAHOMA,

Amicus Curiae,

JACK GREENEERG,

JAMES M. HAI LDR bth , oR ,

PEGGY C. DAVIS,

DAVID EVN: CNDALL, RLW YORK, NEW YOR,

ANTHONY -C. nus T2R Deis, STARNTORD, CALIPF.,

LEG/2, DEFENSE & EDU FUND, INC.

Amicus Curiee,

LARRY DERRYBERRY, ATTORNEY GENE ia

BIL BRUCE, ASST. ATTORNEY GERFIL.

Attorneys for Appellce.

OPINION BY BUSSEY, J.

BRETT, P. J., CONCURS

BLISS, J., CONCURS

$b 2

“4

-40-

APPENDIX

Selected Voir Dire Exaniination

"THE COURT: .. .This is a first degree murder casc, and the penalty for

first degree murder under the laws of the State of Oklahoma is that any person who,

if cenvicted of murder in the first degree, shall suffer death,

There are crimes that you may try as a Juror up here where there is a

of punishment, but in murder in the first degree, the laws of this state is that it

the death penalty. . . .[TJhe burden of proof is on the Stute of Oklahoma to prove

ae al

Defendant guilty beyond a reasonable doubt. If the State proves to your satisfaction

bevond a reasonable doubt that the Defendants are muilty Of murder in the first-derres,

it would be vour duty to find the Defendants guilty Of murder in the first degree

Would cach of you do that us vour sworn duty as Jurors’

lf anyone who would not, please hold up your hind”

MRS. ANGEL: ‘That would apply te expital punishment, wouldnt i?

THE COURT: 1] vill pet to that in a moment. . .

As Ltold sou a2 moment age, ladies and gentlemen. im this ts me of '

is only one punishinent under the laws of the State of OMlahomn for m ind in thr

first degree, that is that the Defendant or Defendants chal! suffer death. And

would be your duty, if you found them euilts beyond a reasonable doubt under thi

law, in the case to assess the punishrnent in the case, and there being only one

nunishment, ;

THE COURT: Mrs. Angel, do you understand the nature of the case thit

is on trial before this Jury today? ;

MRS. ANGEL: Yes.

THE COURT: De vou understand what fhave told cou about Vie® puns oat

for first degree murder as by the laws of this stete”

MRS. ANGEL: Yes. °

° THE COURT: Mrs, Angel, in a case where.the law and the es idence warrants,

ina proper case, could you without doing violence to sour conscience, agree to

verdict imposing the death penalty ?

MRS. ANGEL: No, sir.

THE COURT: You couldn't?

MRS. ANGEL: No.

MR. PARRIS: We chadienge the ducer for cause.

Tike COURT: Juror has been challenged for cause. What Says Mer. Leatherman

first?

"MR. LEATHERMAN: I don't think that is any cause, Your Honor,

THE COURT: I'll ask the Juror one other question. Mrs. Angel, I take it

you have reservation about the death penalty?

MRS. ANGEL: Yes.

, THE COURT: Personal reservations?

MRS. ANGEL: Personal reservations only.

THE COURT: Please listen to me very closely, are your reservations about

the death penalty such that regardless of the law, the facets, aad the ctreumstanecs

of the case, you could not inflict the death penalty if sou found bevond a reasonable

doubt that the Defendants or cither of them were guilty of murder in the first degree?

Do you understand what Iam a¢king you?

MRS. ANGEL: I would 1 ve to go along with the law, but regardless of the

law, did you say?

THE COURT: Well, vou undérstand, Mrs. Ange), if the State fails to prove

the Defendants guilty beyond a reasonable doubt, it would be your auty along with the

eth

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