# Petition — Williams v. Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2087%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 428 U.S. 907 ## Text 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 i 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 GCaGaties GO Gpdnhem BGRSW ccccccccccoccsssscccoceccece 1 CUSSED 6006+ 66sbbbbeec 6be08b bb we eeesoseeuelaeut 2 GURSRSSNS TOGSUNBES 10s cccdus ccecdcncsdbvnccescsecaces 2 Constitutional and Statutory Provisions Involved...... 4 7 Statement eereereeeeeeereeeeeeeeeeree een eeeeeeeeeeeeeeeeee ee How the Federal Questions were Raised and Decided Reasons for Granting the Writ l. II. IIl. Iv. Below eoeereeeeeee eee ee eeeeeeeeeeneeeeeeeeeeune 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 17 17 18 — 7 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 ii 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. 21 Okla. 21 Okla. 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.) 19 27,28 18,19,22 19 19 27 20 20 19 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. — l. 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. Be 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 eee oe = = Eee ee oe 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." ee ee ee - 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 3 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 - a 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 - ee 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 - Iv 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. ——— | ' | ES 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 8 — 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 re ~*~ 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 .p. a ma 4} © SsuiiTer ccé ~N, 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 “ 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 4. 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] C ie) a) ct te pe ct a 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- 3 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 al 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) 9 + ~ 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 > —) . 2 mer. 8. 2 oye CONUAL ion 4 Jy $9 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? a "2. "A. Yes, sir, Did you see him take her heart out? . Yes, sir, I did. 7 ; . "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- j | 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? Cc C iq on “ "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- — 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- he 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 y 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) a 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- . . s* . . thle - * A . ee ee er a. | = + oe ee a oF — i Whether the prosecutorial decisions to make these com- | promise dispositions were based exclusively upon an evidentiary ., Showing that the crimes in each case were “not Murder in the First ' Degree" as initially charged, State ex rel. Young v. Warren, supra, 536 P.2d at 971, is, in the nature of the plea-bargaining process, an inscrutable question. Obviously, however, the dgcfen- dants would have little incentive to charge-bargain in cases where the evidence could only make out less than first degree murder. So it is most likely that post-Young bargains are being made -- as plea bargains have always been made in Oklahoma -- upon a broader .basis that includes consideration of the nature of the 25/ crime, “the age, record, attitude, and mental condition of the accused," "the strength of the prosecutor's case and the identity 26/ ; of his witnesscs" and the philosophy and attitudes of the local 27/ 23/ prosecutor. 25/ Note, Plea Agreements in Oklahoma, 22 Okla. L. Rev. 81, 83 (1969). 26/ Id. at 84. 27/ Id. at 83: “One prosecuting attorney saic that he simply would not negotiate with one who is accused of [murder]; . . . however, another prosecuting attor- ney said that due to the unpredictability of jurics, no matter how serious the crime, he wiil consider a negotiation to make sure that the accused gcts some kind of punishment." 28/ In addition, we may note that the Young case was not decided until May 7, 1975. See note 19 supra. -2- + 3. Jury Discretion An Oklahoma jury may, in any case, "find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged. . . ." 29/ Multiple-count indictments or informations charging offenses of varying severity in the alternative are Per CE, fans which the jury may convict of lesser offenses not technically “included” in the greater. The only limitation upon a capital jury's power in these regards is defined by §701.3 of the 1973 capital punishment statute (pp. 3-4,11-12supra),which forbids the submission of evidentially unsupported lessers, Murray vy. State, 528 P.2d 739, 740-741 (Okla. Cr. App. 1974), and provides that a trial judge who instructs the jury upon “lesser and included offenses and lesser degrees of homicide... shall state into the record his reasons for giving the instructions based upon the evidence adduced at trial." 29 / Okla. Stat. Ann. tit. 22, §916. See also, 22 Okla. Stat. Ann. §915: ' “Whenever a crime is distinguished into degrees, the jury, if they convict a defendant, must find the degree of the crime of which he is guilty." 30/ “[AJn indictment or information must charge but one offense, but where the same act constitutes different offenses, or the proof may be uncertain as to which of the two or more offenses the accused may be guilty of, the different offenses may be set forth in different forms or degrees under different counts." 22 Okla. Stat. Ann. §404 (1969). - 29 - The Murray case just cited was -- like the Hanna and Young cases previously discussed -- an opinion in which the Oklahoma Court of Criminal Appeals pronounced its views upon an issue neither presented nor argued before it, in an apparent concern to ease the tension between Furman and the 1973 law. Two jointly tried defendants, indicted for first degree murder and convicted of second degree murder, urged upon appeal that their pretrial motions for a severance and separate trials had been improperly denied. They prevailed on this contention, and therefore secured reversal of their convictions. The Court of Criminal Appeals added: “Prom a review of the record woe Further find that the trial court instructed the jury on the offense of Murder in the Second pegree, this being the crime for which the defendants were convicted. It is our opin.on, and we so hold, that the evidence in this case did not warrant a Second Degree hurder instruction. The evidence presented was that there was an armed robbery and a homicide. Under this evidence the defendants were either guilty of Murder in the First Degree, OF nothing. . . . Therefore, on a.xetrial of this matter, the trial court should not instruct the jury on the offense of Murder in the Second Degree." 528 P.2d at 740-741. Perhaps because of the way in which the issue arose (or, more accurately, did not arise) in Murray, the court not merely overlooked the impossibility of retrying the 31/ See pp- 23-28 supra. * defendants for first degree murder, but also failed to explain how -- in any live controversy upon a concrete factual record -- an Oklahoma trial or appellate court could rule as a matter of law that the evidence does not warrant a less-than-first-degree murder instruction. For under Okla. Stat. Ann. §701.1 (1975- 1976 Supp.), Pp-2-3 Supra. neither robbery-murder nor murder in any of the ten enumerated statutory situations constitutes first degree murder unless it is also premeditated: and the presence or absence of the mental state of premeditation is a jury question. It was for this reason, for example, that the trial judge in petitioner's case charged the jury on first degree manslaughter (see pp. 7 -8 supra), although petitioner had killed a police officer within §701.1(1). 32/ See Price v: Georgia, 398 U.S. 323 (1970). In the case of Murray's codcfendant, indeed, the United States District Court for the Western District of Oklahoma has already held that double jeopardy bars the retrial “on the charge of Murder in the First Degree" ordered by the Court of Criminal Appeals in Murray v. State, SUPEA, 528 P.2d at 741. See Grizzle v- Turner, 387 F. Supp. 1 (W. D. Okla. 1975). ; | | —_—_— Murray does not purport to change the settled law of Oklahoma that, in homicide cases, the court must submit to the ae ——_ jury an instruction upon every degree of homicide which any } reasonable view of the evidence suggests, Isaac v. State, 83 , . Okla. Cr. 33, 172 P.2a 806, 808-809 (1946); : that the judge is | not to weigh the evidence in formulating his instructions, 34/ Lawson v. Territory,8 Okla. 1, 56 P. 698, 700 (1899); that “[w)jhere the evidence shows any element of manslaughter, however slight, an instruction defining that degree of homicide is proper," Ging v. State, 31 Okla. Cr. 428, 239 P. 685, 688-099 (1925); that “if there is any doubt about the matter in the mind of the court, the lower degree of the homicide should be sub- mitted for the consideration of the jury,” Clapp v. State, 73 Okla. Cr. 261, 120 P.2d 361, 383 (1942); that lesser-offense submissions will be sustained even upon “rather a strained con- struction” of the evidence, Warren v. State, 6 Okla. Cr. 1, 115 Pp. 612, 817 (1911); that factual questions regarding a defendant's Lesser-offense instructions may be required by the evidence even in the absence of a defense request. See, e.g-, Myors v- State, 480 P.2d 950, 952 (Okla. Cr. App. 1969). ———— —— a 34/ Thus, for example, the uncorroborated testimony of a defendant suffices to support and require a lesser-offense charge. Shirey v. State, 520 p.2d 701, 703 (Okla. Cr. App- 1974). ° 32 - —————— mental state are ordinarily jury issues requiring submission of lesser-offense instructions, Laymon v. State, 513 P.2d 883, 885 | (Okla. Cr. App. 1973); Gibson v. State, 501 P.2d 891, 899-900 (Okla. Cr. App. 1972); and, in particular, that any “reasonable doubt .. . as to whether or not the killing was committed with a premeditated design to effect . . . death" supports a lesser offense instruction, Jones v. State, 523 P.2d 1126, 1132 (Okla. Cr. App. 1974) -- even where, as in Jones, the defendant's version of the relevant events is that he was out of the room when his alleged victim committed suicide. In the framework of these principles, it will be the rare case, if any, where the element of "premeditated design" that is prerequisite to a capital first degree murder conviction will not require factual resolution by the jury and support a lesser-offense instruction, thus perform- ing its historic office of “giving [the jurors a] ... dispens- ing power [veiled] ... in a mystifying cloud of words," CARDOZO, LAW AND LITERATURE 100 (1931). For this element “is so obscure that no jury hearing it for the first time can fairly be expected to understand it,” ibid.; and it therefore represents ) 35/ The elements which define first degree murder, second degree murder, and manslaughter are exceedingly amorphous. First Gegree murder (and one form of second degree murder) are charac- terized by a “premeditated design to... effect deuth.” Okla. Stat. Ann. tit. 21, §§701.1, 701.2(1) (1975-1976 supp.). “Design” and “Premeditation”" are statutorily defined: “Design to effect death inferred[.] A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable dCoubt whether such design existed"; (Okla. Stat. Ann. tit. 21, §702 (1958)); eee ——— the classic archetype of those ungraspable mental elements so 35/ cont'd. "Premeditation[(.] A design to effect death sufficiont to constitute murder may be formed instantly before committing the act by which it is carried into execution"; (Okla. Stat. Ann. tit. 21, §703 (1958)). The Court of Criminal Appeals has ‘frequently discussed the concept of "premeditated design"; ""R premeditated design under our law need not be entertained for any appreciable length of time. It may be a design formed instantly before committing the act by which it is carried into execution . . . The time requisite to constitute premeditated design may not be distinguishable from the act of the killing, although it may be said to precede the act... Premeditation is an intent before the act of killing. It means entertainment by the mind of a design to kill, and is often defined as "thought of beforehand, any length of time, however short." However, the word "“premeditatedly" does not meen “thought of" in the sense of “thought over."'" Easley v. State, 78 Okla. Cr. 1, 143 P.2d 166, 170 (1943) (quoting Bashan v. Stote, 47 Okla. Cr. 204, 287 P. 761, 762 (1930)). Moreover, “'[a}) premeditated design to effect death * * * is no more nor less than a mental purpose to take human life.'" Walker v. State, 91 Okla. Cr. 1, 214 P2d. 961, 963 (1950). This mental purpose is “'"formable on the instant preceding the fatal act or some time theretofore, it being sufficient that there be a prece- dent existence of the purpose and persistency of it to and in- Clusive of such fatal act."'" Easley v. State, supra, 143 P.2d at 171. See also Jones v. State, 94 Okla. Cr. 359, 236 P.2d 102, 107 (1951); Miller v. State, 523 P.2d 11:8, 1122 (Okla. Crim. App. 1974) (defendant could have formed premeditated design to kill between firing second and third pistol shot while he engaged in drunken horseplay). Moreover, “[i]f a killing is occasioned by the use of a deadly weapon, the. the design to effect death may be inferred from the fact of the killing.” Gatewood v. State, &0 Okla. Cr. 135, 157 P.24a 473, 475 (1945). A similar gloss does not exist for the element defining one form of second degree murder, “a depraved mind, regardless of human life," sec Holmes v. State, 6 Okla. Cr. 541, 119 P. 430, 440 (1911), although Okla. Stat. Ann. tit. 21, §705 (1958) pro- vides that a homicide perpetrated by an act “imminently dangerous to others and evincing a depraved mind, regardless of human lifc, is not the less murder because there was no actual intent to in- jure others." See generally, CANNON, AN ANALYSIS OF TUE NEW MURDCR LAW OF OKLAIIOMA (1974). “refractory to the best-instructed human understanding" that they not merely permit but inescapably require any jury to ee a — “conceal from itself its own response to sentiment, under the guise of resolving issues of evidential doubt." "(N]o matter how patiently the judge tries to explain to the jury that which he himself only cloudily understands, the net result must be that twelve lay persons have no alternative to using their general sense of the equities of the matter. But this means that these purported rules, at the crucial line of separation between those who are to die and those who are to live, conceal a discretion which, however benevolent, is to all intents and purposes standardless."38/ And if "'[i]t sometimes happens [that] the jury, in arriving at a verdict, does so by a compromise and fixes a lower degree than the undisputed evidence may disclose,'" Abel _v. Stato, 507 p.2d 569, 572 (1973), (quoting Clapp vy. State, 73 Okla. Cr. 261, 120 p.2d 381, 384 (1941)), surely this extra-legal process is most likely to reflect the “natural human tendeivcy to see 36/ Black, Crisis in Capital Punishment, 31 MD. L. REV. 289, 299 (1971). 37/ KALVEN & ZRISEL, THE AMERICAN JURY 427 (1966). 38/ BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 49-50 (1974). meee eae facts and to evaluate evidence in a manner leading to a desired , 49h conclusion” where the stakes are life or death and where the enormity of those stakes is forcibly brought home to the jurors by the requirement that they "state affirmatively in their [first degree murder] verdict that the defendant shall 41/ suffer death." ° 39/ BLACK, op. cit. supra note 38, at 46. 40/ The resort by juries even to verdicts of acquittal as a means of avoiding capital convictions” in cases which were ‘willful, deliberate, and premeditated’ in any view of that phrase, but which nevertheless were clearly inappropriate for the death penalty” is an historical commonplace. MceGautha v. California, 402 U.S. 183, 199 (1971). See the authorities collected in the Brief for Petitioner, Fowler v. North Carolini, No. 73-7031, at pp. 90-92 n.122. 41/ Okla. Stat. Ann. tit. 21, §701.3 (1975-1976 Supp.), p- supra. The Court of Criminal Appeals has indicated that the omission of such a statement would not have the legal eficct of sparing the defendant's life, Williams v. State, Supra, 542 p.2d at 578-79, but the requirement serves nonetheless to assure that the jury is aware of the life-or-death consequences of its choice of a verdict. - 3% - ——— ee | absolute power to commute and pardon -- or to decline to commute 4. Executive eme Under Okla. Const. Ann., art. 6, §10 (1952), and 57 Okla. Stat. Ann. §332 (1969), the Governor oz Oklahoma possesses i ‘ or pardon -- as he chooses. The only limitation upon these powers ‘as they apply to capital cases is the requirement that, before the Governor may permanently change a sentence to be served, he must receive a recommendation in the case from the Board of Pardons and Paroles. He need not follow the recommendation, but need only receive it. There are no restrictions or controls upon -- or standards, rules or principles to regulate -- the Board's dis- eretion or the Governor's. “An abuse of the pardoning power {which is conferred in the same terms as the power of commutation] does not authorize the courts to decline to give effect to a pardon, and no court has the power to review the action of the executive in granting a pardon... . “Ex parte Crum, 10 Okla. —-————-* Cr. 133, 135 P.428, 431 (1913). Since the Court now has before it lengthy briefs in cases from five States raising the question of the constitution- ality of capital punishment under the Eighth Amendment, we sec no reason to extend the present Petition beyond ¢=scription of the local Oklahoma doctrines, practices and procedures that present a similar question in petitioner's case. Oklahoma's system for the administration of the death penalty differs in details from those of Plorida, Georgia, Louisiana, North Carolina, _and Texas -- just as the systems of the latter five States differ 4, from cach ether in details -- but the differences are insignifi- cant in contrast to the similarities. Arbitrary selectivity in = 37 <- ‘ the choice of those who die or live remains the common charac- | teristic of death-sentencing schemes from State to State, after | Furman as before, and however much the numerous discretionary judgments which together doom or spare be diffused, disguised, or papered over with the language of “mandatory” or “automatic” death penalties. For, in fact, "[t]he change to a mandatory system... {simply has] the effect of shifting some of the discretion exe: