Petition — DAVIS v. OKLAHOMA (No. 83-5183)
Supreme Court brief1983
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-. 88 5183
RECEIVED
vu. 29, 1983
Seer
IN TEE Orrive ur mt ULeRA
SUPREME CORT US
SUPREYE COUPT OF THE UNITED TT
October Terr, oe
CRAPLES WI TAM DAVIS,
Der . corer,
STATE OF OFLAHOMA,
Respondert.
WRIT OF CEPTIOPART
THEE OKLAHOMA COUPT OF CRIMINAI APPEALS
PETITION FOP WRIT OF CERTIOPAF!
ROBERT A. RAVITZ
FIRST ASSISTANT PUBLIC DEFENDEF
OKLAHOMA COUNTY
409 County Office Buildine
320 Robert S. Kerr
Oklahoma City, Oklahoma 73102
(408) 236-2727, ext. 582
COUNSEL FOR PETITIONER
t
QUESTIONS PRESENTED
.
l. Car a state consistent with the Siwtr Amerdmrert rice
to effective assistance of counsel, the Fiarer Arerd@rert ric
to individualized sentencine in capital cases, ane tre
Fourteert> Amendrert riahts to Gue process an@ eoual protection
of the law fail to provide an opportunity for an indicert tc
obtain expert psychiatric testimony Gealinre with miticatior of
punishrent?
2. Can the Oklahoma Court of Criminal Appeals continually
circumvent this Court's Opinion in Witherspoon v. 1
affects their conscience?
2. Can an appeals court consistent with the Fiarth and
Fourteenth Amerdments and consistent with this Court's Opinion
in Godfrey v. Georcia, 446 U.S. $20 (1980) allow fer an open
ended interpretation of the accravating circumstance crue-,
heinous and atrocious” and fail to narrow the class of persons
eligible for the death peralty a a result of their
interpretation?
&. Is a state appeals court recuired by the Eiahth and
Fourteenth Amendmerts to undertake proportionality review of
death cases Py comparine Petitioner's sentence of death tc
similar cases and can a state appeals court consistent with the
@ue process clause of the Fourteenth Amendment arbitrarily denv
Petitioner his state statutory richt to have a reference mace
to similar cases in determining to affirm a death penalty?
el-
Queeticrs Presertec.
Opinion Below. ..- +
Juriedictior . - « -»
Constitutional and St
im this Case . -
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Statermert of the Case
How the federal cuest
. ar rec re
Reasorse for antine
Corclusion . -« «= « »«
Certificate of Serv
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NO.
IN THE
SUPRFME COURT OF THF UNITED STATES
October Term, 1982
CHARLES WILLIAM DAVIS,
Petitioner,
STATE OF OFLAHOMA,
Respondent.
PFTITION FOR WRIT OF CEPTIOPARTI TO
THE OKLAHOMA COURT OF CRIMINAI APPFALS
Petitioner prave that a Writ of Certiorari issue to review
the judament of the Oklahore Court of Criminal Appeals entered
in this case on May 9, 1963.
OPINION BELOW
‘
The opinion of the Oklahoma Court of Criminal Appeals was
published and will soon be produced in Pacific Reporter
Series. It is annexed as Appendix A. The order denyinae
rehearina is unreported. It ie annexed as Appendix B.
JURISDICTION
The judament of the Court of Criminal Appeals was entered
on May 9, 1983. A timely petition for rehearing (Appendix C),
was denied on June 17, 1983. Jurisdiction of this Court is
invoked under 28 U.S.C. 61257(3).
o2-
This case involves the Fourteenth Amendment to the
Constitution of the United States whick provides,
pert:
" ..Nor shall anv state ¢ceprive anv
person of life, liberty, or property,
without @ue process of law; nor deny to
any persons within its turisdiction the
eaual protection of the laws."
in
relevart
The Sixth Amendment to the United States Constitution
provides in relevant part:
"In all criminal prosecutions, the
accused shall enjoy the riaht to a speedy
an@ public trial, fy impartial jury of
the state and district wherein the crime
shall have heen committec...3 ana toc have
the assistance of counsel for his
defence.”
The Fiohth Amendment to the Constitution to the
States which provides, in relevant part:
"Pycessive bail shall not he reauired,...
nor cruel and unusual punishments
inflicted.”
Thie case also involves provisions of the Oklahoma Statu
1. ©O.8. 21 $701.7 Murder _in the firet degree
A. A person commits murder in the first
dearee when he unlawfully and with malice
aforethought causes the death of another
human being. Malice is that Aeliberate
intention unlawfully to take awav the
life of a human beina, which is
manifested by external circumstances
capable of proof.
B. A person also commits the crime of
murder in the first degree when he takes
the life of a human being, reaardless of
malice, in the commission of forcible
rape, robbery with 4 dangerous weapon,
kidnapping, escape from lawful custody,
first degree burglary or first dearee
arson.
2. 6.8. 21 $761.9 Punishment for murder.
A. A person who is convicted of or pleads
quilty or nolo contendere to murder in
the first dearee shall be punished by
death or by imprisonment for life.
o3<
3. 0.8. 21 $701.10 Sentencins proceedinc--Murder it
first degree
Upon conviction or ediudicatior of avilt
of a defendant of murder in the first
Gecree, the court shall conduct a
separate sentencing proceeding to
determine whether the defendant should te
sentenced to death or life imprisonment.
The proceedince shall he conducted by the
trial iudce before the trial tury ae soon
as practicable without presentence
investiaation. If the trial tury has
been waived by the defendant and the
state, or if the defendant pleaded guilty
or nolo contendere, the sentencine
proceeding shall he conducted before the
court. In the sentencine proceedinc,
evidence may be presented af to any
mitieatine circumstances or as to any of
the aaaravatina circumstances enumerated
in this act. Only such evidence in
agcravatiion as the state has made known
to the defendant prior to his trial shall
be admiesible. However, this sectior
shall not he construed to authorize the
introduction of anv evidence secured in
violation of the Constitutions of the
United States or of the Stute of
Oklahoma. The state and the defendant or
his counsel shall be permitted to presert
araument for or against sentence of death.
4. 0.8. 2) §701.11 Instructions - Jury findines of
acoravatinag circumstance.
In the sentencing proceeding, the
statutory instructions as determined by
the trial tudce to he warranted by the
evidence shall he given in the charge and
in writine to the jury for its
deliberation. The jury, if its verdict
he a unanimous recommendation of death,
shall desiaqnate in writine, sianed by the
foreman of the jury, the statutory
aaqgravating circumstance or circumstances
which it unanimously found bevond a
reasonable doubt. In non-jury cases the
judge shall make such desiaqnation.
Unless at least one of the statutory
aggravating circumstances enumerated in
this act is so found or if it is found
that any such acaravating circumstance is
outweighed by the finding of one or more
mitiaatina circumstances, the death
penalty shall not be imposed. If the
jury cannot, within a reasonable time,
acree as to punishment, the judce shall
dismiss the jury and impose a sentence of
imprisonment for life.
-4-
5. 21 0.8. $701.12 Aeoravatine circumstances
Agoravating circumstances shall he:
l. The defendant was previously convicted
of a felony involving the use or threat
of violence to the person;
2. The defendart knowincly created a
Great risk of death to more than one
person;
3. The person committed the murder for
remuneration or the promise of
remuneration or employed another to
promise of remuneratior;
4. The murder was especially heinous,
atrocious, or cruel;
5, The murder was committed for the
purpose of avoidine or preventince a
lawful arrest or prosecution;
€. The murder was committed by a person
while servine a sentence of imprisonment
on conviction of a felony;
7, The existence of a probability that
the Gefendant would commit criminal acts
of violence that would constitutew a
. or
continuing threat to society;
8. The victim of the murcer was a peace
officer as defined ry Section 99 of Title
21 of the Oklahoma Statutes, or auaré of
an institution under the control of the
Department of Corrections, ane such
person was killed while in performance of
official duty. Laws 1976, let Ex.Sess.,
e.l, 86, eff. July 24, 1976. Laws 1961,
ce. 147 61, eff. May @, 1981.
21 6701.13 Death Penalty - Review of sentence
A. Whenever the death penalty is imposed,
and upon the judament becoming final in
the trial court, the sentence shall te
reviewed on the record hy the Oklahoma
Court of Criminal Appeals. The clerk of
the trial court, within ten (10) days
after receivinae the transcript, shall
transmit the entire record and transcript
to the Oklahoma Court of Criminal appeals
together with a notice prepared by the
clerk and a report prepared by the trial
judae. The notice shall set forth the
title and docket numer of the case, the
name of the defendant and the name and
address of his attorney, a narrative
statement of the judament, the offense,
and the punishment prescribed. The
report shall be in the form of a standard
questionaire prepared and supplied by the
Oklahoma Court of Criminal Appeals.
B. The Oklahoma Court of Criminal Appeals
shall consider the punishment as wel) as
any errors enumerated by way of appeal.
-5-
C. With reaard to the sentence, the court
shall determine:
1. Whether the sentence of death was
imposed under the influence of passion,
prejudice, or any other arbitrary factor;
2, Whether the evidence supports the
jurv's or judce's finding of a statutory
aggravating circumstance as enumerated in
this act; and
3, Whether the sertence of death is
excessive or disproportionate to the
penalty imposed in similar cases,
considering both the crime and the
defendant.
D. Both the defendant and the state shall
have the riaht to submit briefs within
the time provided by the court, and to
present oral araument to the court.
F. The court shall include in its
Gecision a reference to those similar
cases which it took into consideration.
In addition to its authority recarding
correction of errors, the court, with
reaard to review of death sentences,
shall be authorized to:
1. Affirm the sentence of death: or
2. Set the sentence aside and remand
the case for modification of the sentence
to imprisonment for life.
F. The sentence review shall be in
addition to direct appeal, if taken, and
the review and appeal shall he
consolidated for consideration. Thre
court shall render its decision on lecal
errors enumerated, the factual
substantiation of the verdict, and the
validity of the sentence.
7, 22 0.8. (3993). $2272 Doubt as to present sanity prior
to callina of indictment or information for trial or
preliminary hearing.
If any person is held in confinement
because of criminal charges, or if he has
criminal charaes pendina or likely to be
filed against him, or if he has been
taken into custody because of a criminal
act or acts, and prior to the calling of
an indictment or information for trial or
preliminary hearing, a doubt arises as to
his present sanity, either such
individual or the district attorney may
make application to the District Court
for an order committing such individual
to a state hospital within the Department
of Mental Health for observation and
examination for a period not to exceed
sixty (60) days. Provided, however,
where an adequate examination can be had
in the county where the charge is
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pending, such examination shall be held
in such county. Provided, however, the
court may extend the sixty-day period
where a need for such extension is
shown. Anv criminal proceedings against
such individual shall be suspended
pendina the hearince of the application by
the District Court. laws 1963, c. 184,
Gl; Laws 1969, c. 28&, €1. Emera. eff.
April 25, 1969.
8. 22.0.8. $1175.2 Application for Aeterminatior of
competency--Service--Notice--Suspension of criminal)
proceedincs
A. Wo person shall be subiect to any
criminal procedures after he is
determined to be incompetent except as
provided in this act. The cuestion of
the incompetency of a person may he
raised by the person, the defense
attorney, or the district attorney, by an
application for determination of
competency. The application for
determination of competency shall allece
that the person is incompetent to underco
further proceedings, and shall state
facts sufficient to raise a doubt as to
the competency of the person. The court
may, at any time, initiate a competency
determination on its own metion, without
an application, if the court has a doubt
as to the competency of the person.
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STATEMENT OF THE CASE
The petitioner, CEARLFS WILLIAM DAVIS, wae convicted of
murder in the first decree 21 0.S. €701.7 for the murder of
Robert Wayne Jones, petitioner's brother-in-law, and Dennis
MeLauahlin, a friend of petitioner's brother-in-law, Wounded
but not killed in the same incidert were Fathy Jones-Davie,
petitioner's wife and Ferry Jones, petitioner's brother-in-law,
The evidence at trial showest petitioner on the niabt of the
homicide, was married to Kathy Jones-Davis. RF 1° (Tr. 33°)
In the early morning hours of Aucust 13, 1977, Me. Davis,
accompanied by Dennis McLauchiin, @ friend, and Pobert and
Henry Jones, her brothers, had driven cown to Oklahoma City
from Sapulpa, Oklahora. Tr. 339 These people arrived in
Oklahoma City between §:00 and 5:30 a.m. and went to the police
station. (Tr. 340). Shortly thereafter, these people arrived
at Petitioner's home. (Tr. 341). After loadina Ma. Davis’
beloncings into the car, she, MeLauchlin and her brothers
re-entered the apartment to make sure evervthing wat taken
out. (Tr. 343) Thereafter, after askins where hie car war,
the Petitioner started shootine. (Tr. 348)
Ms. Davis admitted at trial she had had an agreement
hetween herself and petitioner she would collect her beloncinas
between 11:00 a.m. and 2:00 p.m. Saturday or Sunday. (Tr. 387)
Henry Jones admitted initially when the people went in the
house prior to leaving for one last look around, petitioner was
outside with Henry Jones. (Tr. 532) The witness atatedc once
they went inside petitioner's home for the last time, they were
just standing around. (Tr. 535) After the shooting
The recora in the Okianoma Court of Crimina. Appeals consists
of a bound record consisting of instruments filed in the trial
court (hereinafter referred to as PF.) and a trial transcript
(hereinafter referred to as Tr.)
and after he recained consciourress, Herry Jonee chased tre
Petitioner around the hack of the house. (Fr. S28) He further
claimed he did not have a cun when he chased the Petitioner
e268)
even thovah he krew the Petitioner had a aun. (Tr.
The petitioner basically ceetified eo eimilar facte oriv re
claimed he acted in self-deferste,
The voir dire examination of ‘urore Metivier and Muecrave
az shown by the Court of Criminal Appeals’ Opinion is found et
Appendix D to this Petition.
-9-
HOW THF FEDFRAL QUESTIONS WEPE
PATSED AND DECIDED BELOW
1. Prior to terial, petitioner recuested throuch counsel,
funde to hire certain witnesses to present evidence in
mitication of punishment. (FP. 14-16). This motion wae
overruled by the trial court though the court 4id rule ehae if
possible, the state psychiatrist erould examine the defendant
to determine whether there were mitigating factore®. An atterpt
was made to have the person examined by the state hoepital Fut
the etate hospital refused through their legal counsel who
concluded that the hoepital was without authority to check the
Aefendant recarding miticating factors, (Tr. Motion® Pp» 10),
On appeal to the Oklahoma Court of Criminal Appeals, the
court held there wae no richt to estate funds to Fire a
peyvehiatrist to present miticatine factor# on behalf of a
defendant. While it i# unclear from the consensus of the
court's Opinion what the exact basis was for the denial of
funds for expert witresser, it is clear that the court
considered thie on due process principles, eaual protection
principles, opportunity to present mitiaationa) evidence and
the riaht to effective assistance of counsel from the brief
discussion by the court of thie iseue and the brief of
petitioner. Similarly, petitioner's petition for rehearing ir
the Oklahoma Court of Criminal Appeals specifically stating the
exact constitutional amendments that he based his araument.
2, The objection to the improper excusal of Jurors Musarave
and Metivier was firet made before the trial court and wast
briefed and addressed by the Oklahoma Court of Criminal
Appeals. This issue was also addressed by the dissenting judae,
3, This acgeravatine circumstence was ohsected to prier to
trial pursuant to Geferdart's motion to strike the hill of
particulare. It wae renewed at trial based on the fact the
evidence @id ret support the finding that the murder wae
especially heinous, atrocious ar@ cruel. hie wae overruled Py
the trial dudce. Or appeal to the Court of Criminal Apreale,
petitioner's brief alleced the evidence presented ry the
prosecution was insufficient to support the acaravatine
circumstance “eruel, heinous and atrocious.” Petitioner's
brief wae filed prior to thie Court's decision ir Godfrey vy,
Georcia, 44@ U.S. 420 (1980), Petitioner addressed in bie
petition for rehearing the improper interpretation placed or
this agoravatine circumetance in liaht of the Fiehtr and
Fourteenth Amendmerte and in liant of this Court's deci#ion ir
Godfrey v. Georcia, supra.
4, Petitioner's last iseue wae briefed for the fireat time
on rehearing. After the affirmance of petitioner's serterce in
Liekt of proportionality review previously conducted Fy the
Oklahoma Court of Criminal Appeals and ite refugee) to conduct
the game tvpe of proportionality review im petitioner's care.
-ll-
REASONS FOP GRANTING THE WEI7
I.
THIS COUPT SHOULD GRANT CEPTIOPARI TO
CONSIDER WHETHEP IT IS CONSISTENT WITH
THE SIXTH AMENDMENT PIGHT TC EFFECTIVF
ASSISTANCE OF COUNSEL, THE FIGHTF
AMENDMEN™ RIGHT TO INDIVIDUALT2FO
SENTENCING IN CAPITAL CASES, AND THE
FOUPTEENTE AMENDMENT RIGET TO DUE PROCESS
AND EQUAL PROTECTION OF THE LAWS, TO
PROFIBIT, IN A CAPITAL CASF, AN INDIGFN®T
DEFENDANT'S PIGHT 70 PROCURE SOME TYPE OF
PSYCHOLOGICAL TESTIMONY PFGAPDING
VITIGATION BY PRORTBITING HIM FUNDS FOF
ANY TYPE OF TFSTIMONY OF EXAMINATION AND
PROHIBITING HIM FROM BRING EXAMINED IN
THF STATE HOSPITAL 70 DETEPMINE
MITIGATING FACTORS.
to hire certain witnesses to present evieerce in miticatior
née for an expert psycriatris® wre coulda testify to certair
mitigatine factors about Petitioner and the facts of the
hie request wae overrule4, mot or the basic
e evidence would re improper or wou'd not be relevant Put
hecause of established Oklahoma precedert which holde that
state trial tudces are witout authority under Oklahoma law to
comply with a recuest for such funds because nc funee are
authorized for these purposes.
The Oklahoma statutory syvster faile to provide for expert
witnesses of any kind even ir the discretion of the trial court
and the state hospital carn onlv make a Getermination whether
the defendant is competent to aid and assist his lawyer ir
presentina a defense. O.S. {1971} €1171. /2
It is petitioner's contention that his conetitutional
riabts under the Sixth, Fiohth and Fourteerth Amendments to the
United States Constitution were violated by the court's
37° 32 0.8. 11971) S117) was repealed in 1980. The statute
regardine committment is now codified in 22 0.S. 61178(2).
-l2-
decision denyine state funds to rire a psycria
?
%
mitiaating factors on bheralf of the deferdant. Since 1976,
thie Court has continually recuired as constitutionally madated
under the Eiatth Amendment, trat ecarital sentencine procecures
crime and the particularized characteristics of the indivicuea
Gefendant. Grego v. Georgia, 428 U.S. at 206. This Court
reiterated these safequarcs ir FaAincse v. Oklaroma, 455 U.S.
104 (1982), by invalidatinae a death sentence imposed without
the consideration of individualized miticatinse factore recuired
hy the Fiehth and Fourteenth Amendments in capita
Court statina:
"Jyet as the state may not Fy statute
preclude the sentencer from considerine
anv mitiaatine
sentencer, refuse to consider, as a
matter of law, anv relevant mi
Circumstances.” Eddincse, supra, 455 U.§.
104, (Emphagie in oricina.) at 113-118.
Recentlv, this Court reaffirmed its estrone stance or
individualized sentencing Py statine “what is important at the
selection stace is ar individualized Aetermination on the Pasis
of the character of the individual and the circumstances of thre
crime. Zant v. Stephens u.s. , $1 Low. 68°) (198?
citina Eddings v. Oklahoma, 4se u.S, 104 (1982); Lockett v.
Ohio, 4328 U.S. S86 (1978) (plurality opinion); Roherts ‘Karrv!
y. Lovisiana, 431 U.S. 633 (1977); Greac, supra at 19”
(plurality opinion); Proffitt v. Florida, 428 U.S. at 251-252,
(plurality opinion); Woodson v. North Carolina, 428 U.S. 280,
303-304 (1976) (plurality opinion).
In Bounds v. Smith, 430 U.S. @17 (1977), this Court
adhering to its earlier decision ir Yeuncer v. Gilmore, 404
u.S. 15 (1971) that law libraries are alternative sources of
lecal knowledge and are constitutionally mandated, hele that
the fundamental riaht of access to the courts requires prison
-l3-
authorities to assist inmates in the preparation anf filire of
meaningful lecal papers Pv providing adecuate libraries for
adecuate assistance from persons trained in the law. Justice
nd of trial a man cets depends or the amount of monev re
has." The principles of Griffin apply to this Court's decision
to strike Gown a state practice of arantine appellate review
only to persons able to afford a trial transcript. Similarly,
in Dovelas v. California, 372 U.S. 383 (1963), this Court hela
that an indicent was entitled to counsel on his firet direct
appeal as a matter of ricrt.
ris Court hase alse recocnized limite on the princip
e of
,
protecting indicerts in the criminal tustice evetem. Ir Foes
vy. Moffitt, 417 U.S. 600 (3974), this Court held that infiaerte
pa ot Se
had no constitutional riart to appointed course) for a
Aiscretionary appeal and ir trited Seatee v. MacCollur, 426
U.S. 317 (1976) (plurality opinion), this Court rejected ar
eaual protection challende to a federal statute which permits a
Aietrict court to provide an indigent with a free trial
transcript only if the court certifies that the challence to
his conviction ig not frivilous ane the transcript is necessary
to prepare his petition.
Recently this Court in Rearden v. Georcia, U.S. 103
S.Ct. 2064 (1983) held that in revocation proceedings for
failure to pay a fine or restitution, a sentencina court must
inquire into the reasons for the failure to pay. Only if the
probationer willfully refuses to pay or fails to make
sufficient bonafide efforts legally to accuire the resources to
pay, the court may revoke probation and sentence him to
imprisonment. If the probationer could not pay despite
sufficient bonafide efforts to acauire the resources to do 80,
“-lé-
alternative measures of punishment other than imprisonment must
be considered. If alternative measures are not adeauate to
meet the State's interest in punishment and deterrence, the
court mav imprison a probationer wre has made eufficient
honafide efforts to pav. Tris Cour® corcluded that such a
depravation would be contary to the fundamental) fairness
recuired hy the Fourteenth Amrendrert.
The instant case is rot @ situation wherein the trial court
has discretion to determine wretner tc crant funds for expert
witnesees nor is it a situation where the State of Oklahoma has
provided throuah their mental institutions, an opportunity to
he examined for miticational evidence dealina with
psychiatrists But an absolute ban due to lack of funds of an
indiaent's riaht to have a Aoctcr examine him to determine
mitiaatinae circumstances or rerut accravatinae circumstances.
It should further re noted Oklahoma law establishes as an
aaoaravatina circumstance "the existence of a probability that
the defendant would commit criminal acts of violence that would
constitute a cortinuinc threat tc eociety” 21 0.8.
€701.12/7)/3 Thie Court, in ite recent opinion in Barefoot v.
Fstelle, U.S. » $1 LW. $189 (1983), Aetermined that it is
totally proper for a state psvchiatrist to testify reaardinc
the defendant's profability of future acts of violence.
"If the jurv may make up its mind@ about
future dancerousness unaided by
psychiatric testimony, jurors should not
be barred from hearing the views of state
psychiatrists along with the opposing
views of the defendant's doctors.”
3/ This circumstance was Instructea on put not found in
Petitioner's case.
In footnote 5 of the Opinion in Rarefoot, this Court
specifically recoanizes the problem ones indiaency miaht cause.
"nor is there a contention that, despite
Petitioner's claim of indiaence, the
Court refused to provide an expert for
Petitioner. In cases of indicency, Texas
law provides for the payment of $500.00
for fexpenses incurred for purposes of
investigation and expert testimony)."
Oklahoma's procedure provides for no such funds for expert
witnesses nor do they cive discretion in the trial court to
order ther at the expense of the State nor do they allow for
the trial court to send the defendant to the state hoepital for
a determination on miticatina factors.
An indiaent defendant in Oklahoma is without the arilitv to
have psychiatrists examine him to establish mitiaatina factors
and to rebut a contention of probathility of future acts of
violence. In the instant case, Petitioner was precluded from
presentina expert testimony in miticeation reaardinae the
emotional framework of the Petitioner at the time of the evert
and his aeneral psycholocical hackcround eolely hecause of his
inability to hire these experts. Petitioner's ability to
present evidence of this type ir mitiaation was precluded ry
the state law nct authorizing the expenditure of funde for the
examination by state doctors on the issues of mitiaation.
Petitioner contends that the Eighth and Fourteenth Amendmerts
to the Constitution of the United States and the Sixth
Amendment Right to effective assistance of counsel] at the
punishment stage of a capital trial reouire a standard whereby
an indigent may have an opportunity to present psychological)
evidence in mitigation under a set of closely defined rules
established by the states. The ability to come up with five
hundred to one thousand dollars for an expert should not he a
basis to determine who should live and who should die.
#16¢
II.
THIS COURT SHOULD REVERSF PETITIONEF'S
DEATH SENTENCE SUMMARILY ON THF GROUND
THAT OKLAHOMA HAS FAILED TO ADHERE TO THE
RFQUIREMENTS OF WITHERSPOON V. ILLINOIS
BY APPROVING, IN PETITIONER'S CASE, THE
FXCLUSION OF JURORS WHO MFRFLY VOICED
GENERAL OBJECTIONS TO THE DEATH PENALTY
AND WOULD HAVF ALLOWED THF DEATH PENALTY
™) AFFECT THEIR DELIBERATIONS.
The Oklahoma Court of Crimial Appeals has never reversed a
Geath sentence on Witherspoon grounds. No matter how much the
trial court deviated from the auestions approved hy this Court
in Witherspoon v. Illinois, 391 U.S. 610 (1968), the Court of
Criminal Appeals has invariably held the jurors were properly
excluded based on their often tentative eacuivocal answers. See
Chanev v. State, 612 P.2d 249; Powrothan v. State, 542 P.2¢4
610; Smith v. State, 659 P.2d 330 (Okl.Cr. 1983).
Since Petitioner was tried anc sentenced by a jury fror
which several veniremen were excluded merely for voicina
general opposition to the death penalty, as though Witherspoon
has never been decided by this Court, his Geath sentence shovld
be summarily reversed. In a two to one Gecision with a state
trial court judae writina the majority opinion, the Oklahoma
Court of Criminal Appeals overlooked hlatant Witherspoon
errors. As Judae Brett conclusively demonstrates in his
a@issent on Witherspoon arounds, Jurors Metivier and Musarave
were improperly excusec. In the instant case, the majority of
the Court of Criminal Appeals, rather than reavirina in
accordance with Witherspoon that a juror assure the court that
he would not automatically vote against the death penalty or
that his opinion about capital punishment would prevent him
from returnina a quilty verdict, has required that a
veniremen's unhesitating, unambiaquous expression of a
willinaness to impose the ultimate penalty be reauired hefore
that juror can sit on a jury.
-l]7-
Ae dissentine Judce Brett points out, Juror Metivier's
answer that she did not believe in takine one's life, did not
reflect her unwillineness to consider death as a punishment.
This ie especially true in liekt of defense counsel's
cuestionine of Juror Metivier to the effect that she woulé not
automatically refuse to impose the death penalty.
Similarly, the majority opinion of the Oklahoma Court of
Criminal Appeals totally ianores this Court's Opinion in Adars
v. Texas, 448 U.S. 28 (1980). Juror Musgrave was excused
merely because she could not acree to a verdict imposince thre
death penalty without 1° doine violence to her conscience. he
so properly stated hy Sudece Prett in his dissent: “Whether it
would do violence to her conscience tf not the issue. The mere
fact that one's conscience miaht he violated or affected Pv
that juror’s decision to impose the death penalty, if not
grounds for excusal under Witherspoon." A jury selected
accordina to the interpretation placed on Witherspoon if the
instant case, is one uncommonly willine to condemn a mar to
Adie. Witherspoon v. Illinois, 39] U.S. at 521. This Court
should summarily reverse Petitioner's death sentence or
Witherspoon error will run rampant in future Oklahoma capital
cases.
=18<
4
4
—
.
THIS COURT SHOULD GRANT CFRTIORAPI TO
CLFAR UP THE OKLAHOMA COUPT OF CRIMINAL
APPEALS' INTERPRETATION OF THE
AGGRAVATING CIRCUMSTANCE "CRUEL, HFINOUS
AND ATROCIOUS" BECAUSE THE OKLAHOMA COUP™
OF CRIMINAL APPEALS' INTERPRETATION FAILS
TO NARROW THE CLASS OF PERSONS FLIGIBIF
FOR THE DEATH PFNALTY, IN VIOLATION OF
THE FIGHTH AND FOURTEENTH AMENDMENTS TC
THE UNITED STATES CONSTITUTION.
The Court of Criminal Appeals affirmed the findina of the
aqaravatina circumstance "especially heinous, atrocious and
cruel. The court stated the definition of the circumstance
adecuately aquided the jury. This definition stated:
"you are further instructed that the term
heinous as that term is used in these
inetructions, means extremely wicked or
shockinaly evil, ance that atrocious means
outraaeously wicked and vile: ane crue)
means desianed to inflict a hich ACearee
of pain, utter indifference to, or
enjiovment of, the sufferina of others:
pityless.
.
Petitioner, on appeal to the Oxlanora Court of Criminal
Appeals contended that to fall within the catecory of this
aacravatine circumstance, & eubstantial amount of phvsical or
mental torture must preceed the killine. State v. Dixon, 238
So.2¢ 1 (Fla. 1973). The Court of Criminal Appeals in its
Opinion, stated:
"However, in construing 21 0.S. Supp.
1976 6701.12 (4), we are not hound only
hy the limitation tha* our interpretation
not be open ended.” Citing Gregg v.
Georgia, supra.
It is interesting to note that the Oklahoma Court of
Crimina) Appeals does not even address this Court's decision in
Godfrey v. Georgia. 446 U.S. 420 (1980). The Oklahoma court
cateaorizes the shooting Pv petitioner in his own home of
several peoples, one of whom beine his wife and two heino his
brother-in-laws, as a mass murder and determines that the acts
are atrocious as defined in the instructions.
-19-
It should be noted that this is not the Cklahoma Court of
Criminal Appeals’ first enlargement of the sc pe of this
aagoravatina circumstance. This Court noted ‘n Eddings v.
Oklahoma, 455 U.S. 104 (19€2).
"We understand the Court of Criminal
Appeals to hold that the murder of a
police officer in the performance of his
duties is heinous, atrocious or cruel
under the Oklahoma statutes. See Roberts
v. Lovisiana, 431 U.S. 633 (1977).
However, we doubt that the trial itudce's
understanding and application of this
agaravatina circumstance conform to that
@earee of certainty recuired hv our
decision in Godfrey v. Georcia, 446 U.S.
420 (1980)." See n.3, Supra. Footnote 4
to this Court's Opinion in Eddines.
The open ended construction of this aacravatine
circumstance shows that the Oklahoma Court of Criminal Appea)
hae failed to narrow the class of persons eliaible for the
death penalty. As this Court recently stated in Zart v.
Stephens, __U.S.__» 5S] L.W. 4891 (1983):
"Thue in Godfrey v. Georcia, 446 U.S. 420
(1980), the Court struck down an
acoravatine circumstance that failed to
narrow the class of persons eliaible for
the death penalty. Justice Stewart's
Opinion for the plurality concluded that
the aaoravatine circumstance described ir
sub section (b)(7) of the Georcia statute
as construed ty the Georgia Sunreme
Court, failed to create any in.erent
restraint on the arbitrary and capricious
infliction of the death sentence hecause
a person of ordinary sensibility could
find that almost every murder fit the
stated criteria. Moreover, the facts of
the case itself, did not distinauish the
murder from any other murder. The
plurality concluded that there was no
principal way to distinouish this case in
which the death penalty was imposed, from
the manv in which it was not."
The open ended construction placed on this agaravating
circumstance hy the Oklahoma Court of Criminal Appeals cannot
withstand constitutional scrutiny under the Eiahth and
Fourteenth Amendments. It is imperative that this Court clear
-20-
up the Oklahoma Court of Criminal Appeals interpretation of
this aggravating circumstance and summarily remand this cause
to the Oklahoma Court of Criminal Appeals in licht of this
Court's Opinion in Godfrey are 7ant, supra.
IV.
THIS COURT SHOULD GRANT CERTIORAPI TO
REQUIRE THF OKLAHOMA COUPT OF CRIMINAL
APPEALS TO FULFILL, IN PETITIONFR'S CASF,
THE CONSTITUTIONAL MANDATE OF
PROPORTIONALITY RFVIFW UNDER THE FICHTR
AND FOURTEENTH AMENDMENTS IN CAPITAL
CASES AND PETITIONFR'S DUF PROCFSS RFIGH™
TO PROPORTIONALITY REVIFW GUARANTEED
UNDER THE OKLAHOMA STATUTFS.
By statute, the Oklahoma Court of Criminal Appeels is
recuired to include in its decision, a reference to those
eimilar cases which it took intc consideration in determirince
whether the death penalty is excessive or A@ieproportionate to
the penalty imposed in similar cases, 21 0.8. €70).13(C) (3) and
(E) .
Trice Court in Hicks v. Oklahora, 447 U.S. 3243 (1980) held
that Petitioner's interest in the exercise of jury discretion
in imposina punishment ie not merely a matter of state
procedural law, but is a liberty interest the fourteent>
amendment preserves acainst arbitrary deprivation by the
State. The liberty interest to Petitioner in proportionality
review of capital sentences is as important as the statutory
right to have a jury impose sentence. Petitioner contends that
the Oklahoma Court of Criminal Appeals' refusal to compare this
case to similar cases under Oklahoma law, violated well
established procedures of proportionality review by the
Oklahoma Court of Criminal Appeals. The Oklahoma Court of
Criminal Appeals, in all recent cases affirming death
sentences, has required this comparison. See Generally, Smith
@2l-
vy, State, 6589 P.2d 330 (Okl.Cr. 1983); Ake Vv. State, 6&3 P.2¢
1/Ok1.Cr. 1983); Munn wv. State, «£8 P.2d 462 (Ok1.Cr. 1983)
(Modifvine petitiorer's sentence to life imprisonment!
Parke v. State, £81 P.2¢ 686 (Ok1.Cr
It is hard to imacine that a state created richt to
proportionality review in sentencine can he violateé bv virtue
of an appellate iudce distualifyine and a state trial judcce
replacina him and making a Aecieion not to crart Petitioner
proportionality review comparins cimilar cases as requires
under Oklahoma law.
Petitioner also contends that as a matter of federal
constitutional law, the estandaré of proportionality review
recuired under the Fiaker are Fourteenth Amendments was
violated by affirmine Petitioner's corviction without cormparine
it to other Oklahoma capital convictions. As stated earlier in
thie section, Oklahoma until Petitioner's case has routinely
compared death cases to eacr other to determine if the deat
peralty in one case is proportionate to the death penalty in
another /4. This Court currently has pendine bedore it the
case of Pulley v. Harris, §1 L.W. 2678 (1983) wherein this
Court will deride what type of proportionality review in
capital cases is recuired by the Eiahth and Fourteenth
Amendments. The standard of appellate review in petitioner's
case is no different than the standard condemned by the Fourth
Amendment. Harris v. Pulley, 692 F.24 1183. This Court should
crant certiorari to determine the appropriate proportionality
review required under the Eiahth ana Fourteenth Amendments.
47 For a discussion on proportionality review in Oklahoma, see
Murn v. State, 658 P.2d 482 (Okl.Cr. 1983) Plurality Opinion of
Judge Cornish who excused himself in Petitioner's case.
o32@
For the reasons stated above, the petitioner requests a
writ of certiorari be cranted.
ROBERT A. RAVITZ2
First Assistant Public Defender
Oklahoma County
320 Robert S. Kerr-409
Oklahoma City, Oklahoma 73102
(408) 236-2727, ext. S5@2
CERTIFICATE OF SERVICE
I, Robert A. Ravitz, certify that I mailed a copy of this
Petition for Certorari and all accompanying Gocuments to
Michael C. Turpen, Attorney Gereral, State of Oklahoma, Suite
-23-
‘
wt be
CHARLES WILLIAM DAVIS,
Appellant,
-vs- No. F-78-140 & F-78-141
THE STATE OF OKLAHOMA,
Appellee.
-OPINION-
POWERS, Special Judge:
The appellant was convicted of Murder in the First Degree
and sentenced to death in Oklahoma County cases no. CRF-77-2905 and
2906. The jury assessed the Geath sentence after finding the
following three (3) aggravating circumstances in each case: that
the murder was especially heinous, atrocious or cruel; the
defendant was previously convicted of a felony involving the use or
threat of violence to the person; the Gefendant knowingly created a
great risk of death to more than one person. On March 16, 1978, the
Ronorable David M. Cook imposed the judgments and sentences, and
the sentences of death were stayed by this Court in its Order of
March 23, 1978, pending the resolution of this appeal. Oral argu-
ment was heard by this Court on August 31, 1981.
The two victims of an early morning shooting on August 13,
1977, at the appellant's apartment in Oklahona City, were Dennis
McLaughlin and Robert Wayne Jones. Wounded but not killed during
that same incident were Kathy Jones Rogers, also known as Kathy_>
Jones Davis, and Henry Jones. A total of six (6) bullets were fired
from the .38 caliber revolver.
Three days prior to the homicide, the same four individuals
met with the appellant at a Humpty Dumpty store parking lot in
Sapulpa, apparently with reference to the marital separation of
Kathy Rogers and the appellant. Robert Jones and Henry Jones,
Kathy's brothers, and Dennis McLaughlin, their friend, accompanied
Kathy to the Sapulpa meeting.
The group then appeared at the appellant's apartment early
on Saturday morning, August 13, to remove Kathy's possessions from
. the apartment of her estranged husband. Kathy Rogers and Renry
Jones testified that the four first stoppec by the Oklahoma City
Police station to obtain protection in their visit to the
appellant's apartment, but they were unsuccessful. After all of
Kathy's property had been removed from the premises, the four
returned to the apartment for a final survey, anc it was at this
point that the appellant shot then.
In his first proposition of error, the appellant maintains
that the trial court denied him his right to present mitigation in
his behalf and deprived him of due process and equal protection of
the laws when the court failec to provide funds for expert
witnesses or to give him a presentence investigation.
This Court has held that there is no right to State funds to
hire an investigator or a4 psychiatrist to present mitigating
factors on behalf of a defendant. Eddings v. Stace, 616 P.2¢ 1159
(Ok1l.Cr.1980). The right to counsel is guaranteed by the
Constitution, but that right hes not been interpreted to include
expert assistance in the determination of appropriate punishment.
Furthermore, the appellant's assertion that the court should have
granted the requested presentence investigation report is without
merit. The purpose of the presentence investigation is to provide
*...a recommendation as to appropriate sentence, ané specifically a
recommendation for or against probation.” Laws 1975, ch. 369, § 1;
now 22 0.S.Supp.19380, § 982. That statute specifically excluces
those cases in which the death penalty is imposed. And this Court
has held that the denial of pretrial motions for a presentence
investigation report and appointment of a psychiatrist in a case in
which a defendant has been sentenced to death was mot error under
this statute. Irvin v. State, 617 P.26 $88 (Okl.Cr.1960),
reaffirming Bills v. State, 585 P.26 1366 (1978).
The appellant alleges, in his second argument, that the jury
was selected in violation of the standards mandated by the United
States Supreme Court. Certain jurors were excluded for cause, over
the objection of defense counsel, as a result of their beliefs
TT
*» regarding the death penalty.
‘ In Witherspoon v. Illinois, the Supreme Court held "...that
. a sentence of death cannot be carried out if the jury that imposed
or recommended it was chosen by excluding veniremen for cause
simply because they voiced general objections to the death penalty
or expressed conscientious or religious scruples against its
infliction.” 391 U.S. 510, 8& S.Ct. 1770, 20 L.Ed.2d 776 (1968),
at 20 L.Ed.24 784-85. In a footnote to that opinion; the Court
said, "The most that can be demanded of a venireman in this regard
is that he be willing to consider all of the penalties provided by
state law, and that he not be irrevocably comnitted, before the
trial has begun, to vote against the penalty of death regardless of
the facts and circumstances that might emerge...." Footnote 21, at
20 L.Ed.2d 785.
In the case before this Court, the trial court
systematically asked the jurors two questions as foliows:
In a case where the law and the evidence warrant
in a proper case, could you, without doing violence
to your conscience, agree to a verdict imposing the
Death Penalty?
If the juror's reply was negative, the court asked:
If you found beyond a reasonable doubt that the.
Defendant in this case was guilty of Murder in the ?
First Degree, and if under the evidence, facts and >,
circumstances of the case the law would permit you to
consider a sentence of death, are your reservations »
about the Death Penalty such that regardless of the
law, the facts and the circumstances of the case, you
would not inflict the Death Penalty?
The appellant contends that in excluding several of the
jurors the trial court violated the rule in Witherspoon. A review
of the record indicates that Juror Rockel was properly excluded due
to her inability to positively answer that she could inflict the
Geath penalty under the appropriate circumstances. Furthermore,
the following jurors were properly excluded: Rood, Childress,
Silloway, Derrick and Hearst. However, the exclusion of three
others requires a more thorough anaivels.
The court conducted the following voir dire of Juror
Metivier:
THE COURT: I ask you: In a case where the law and
the evidence warrant, in a proper case, could you,
without doing violence to your conscience, agree toa
verdict imposing the Death Penalty?
MS. METIVIER: I have problems with that.
THE COURT: You what?
MS. METIVIER: I have problems with that.
THE COURT: You have problems with the Death Penalty?
And I ask you a second question: If you found beyond
a reasonable doubt that the Defendant was guilty of
Murder in the First Degree, and if under the evidence
and the facts and the circumstances of the case the
law woule permit you to consider a sentence of Death,
are your reservations about the Death Penalty such
that regardless of the law, the facts and the
circumstances of the case, you would not inflict the
Death Penalty?
MS. METIVIER: No.
THE COURT: You would not inflict the Death Penalty
in spite of the evidence, the law and the
circumstances of the case? Do I undéerstand you?
MS. METIVIER: Right.
MR. STUART: May I be allowed to ask an additional
question?
THE COURT: Yes.
MR. STUART: Ms. Metivier, my question, and I am
asking you, do I hear you right? Are you saying that
you could never impose the Death Penalty in any case?
You are not saying that under a proper case, that you
couldn't consider imposing the Death Penalty? ‘
MR. COATS: I object to the form of the question,
Your Honor.
TRE COURT: The form of the question is improper. It
is sustained,
MR. STUART: Ms. Metivier, you are not saying you
would automatically refuse to izpose the Death
Penalty in any case, are you?
MS. METIVIER: No, I’m not.
MR. STUART: That's all I have.
THE COURT: I ask you again: If you found beyond a
reasonable doubt that this Defendant was guilty of
Murder in the First Degree, and if uncer the evidence
and facts and circumstances of this case, the law
would permit you to consider a sentence of death, are
your reservations about the Death Penalty such that
regardless of the law, the facts and the
circumstances of the case, you woule not inflict the
Death Penalty?
The reason I repeat the question is
because you answered that you would not under any
circumstances inflict the Death Penalty when I first
asked the question. How do you answer the question
now?
MS. METIVIER: I just don't believe in taking one's
life. I'm not -=- You know, --
THE COURT: You are excused for cause.
MR. STUART: May I approach the bench?
THE COURT: Come to the bench.
(The following proceedings were had out of the hearing of the
jury.)
MR. STUART: I am going to object to excusing this
Juror for cause. I will move for a mistrial on-the
basis of this. This Juror answered my questions of:
Would you automatically refuse to impose the Death
Penalty? And she saic No.
THE COURT: The objection is overruled.
The Juror Metivier answered "I have problems with that" when
asked if she could, in a proper case, agree to imposing the death
sentence. She answered “Right” when asked if she would not inflict
the death penalty in spite of the evidence, the law, and the
circumstances. When that question was repeated by the Court, she
answered "I just don't believe in taking one’s life.®
Although the Juror gave conflicting answers to questions by
the Court and Counsel, her answers, when viewed in their entirety,
Clearly indicated her inability to consiéer the death sentence
under any circumstances.
We mow examine the excusing for cause of Juror Dragus.
While the majority of her answers were tentative, she positively
stated that she would not inflict the death penalty. And although
the question defense counsel was prohibited froz posing was no more
confusing than the court's questions, it, nevertheless, was not the
appropriate question. Juror Dracus had alreacy given a positive
indication of her inability to vote for capital punishment.
Finally, we consider the excusing on voir dire of Juror
Musgrave:
THE COURT: In a case where the law and the evidence
warrant, in a proper case, could you, without doing
violence to your conscience, agree to a verdict
imposing the Death Penalty?
MS. MUSGRAVE: I believe I could.
THE COURT: That is not a sufficient answer. I take
that as being an answer tantamount to saying that you
don't know. I will ask it again.
In a case where the law and the evidence warrant,
that is a proper case, could you, without doing
violence to your conscience, agree to a verdict
imposing the Death Penalty?
MS. MUSGRAVE: I don't believe I could.
THE COURT: You don't believe you could? If you
found beyond a reasonable doubt that the Defendant in
this case was guilty of Murder in the First Degree
and if under the evidence, facts and circumstances of
the case the law would permit you to consider a
sentence of death, are your reservations about the
Death Penalty such that regardless of the law,-‘the
facts and the circumstances of the case, you would
not inflict the Death Penalty?
MS. MUSGRAVE: No.
THE COURT: Ma'am?
MS. MUSGRAVE: No. I don't think I would.
THE COURT: You would not? °
MS, MUSGRAVE: Huh-uh.
THE COURT: Is that a positive answer?
MS, MUSGRAVE: Yes, Sir.
THE COURT: Or not?
MS. MUSGRAVE: Yes, Sir.
MR. STUART: The same objection, Your Honor.
THE COURT: All right. The objection is overruled.
MR. STUART: May I be allowed to ask one question?
THE COURT: Yes, you may.
MR. STUART: Miss Musgrave, I believe I heard you say
to that final guestion that you Gon't think you
would. Now, that -- Do I hear that to mean chat you
could possibly impose the Death Penalty in some
particular case?
MS. MUSGRAVE: Yes. That is right.
MR. STUART: Yes, ma'am. That's all I have.
THE COURT: Well, I ask again. In this case if the
law and the evidence warrant, in a proper case, if
this is a proper case, could you, without doing
violence to your conscience, agree to a verdict
imposing the Death Penalty? I cannot accept anything
short of a positive response to that question, Miss
Musgrave. Yes or no?
MS. MUSGRAVE: No. I would say no.
THE COURT: All right. Anything further?
MR. STUART: Yes, sir. May I approach the bench?
THE COURT: Yes.
(The following proceedings were had out of the hearing of the
jury.)
Mr. STUART: At this time, we move for a mistrial,
and we would object to any excusing of Mrs. Musgrave
for cause as on this second question she said, "I
think I could." She told me she could in a proper --
She didn't say she couldn't in any case, and that is
what Witherspoon is directed at, and we strenuously
object to excusing this Juror.
MR. COATS: I would say Counsel's questions were so
leading that she would answer it -- She has fairly
answered the Judge's questions set out by the Court
which is proper, and we move to have her excused.
MR. STUART: May I further say on the record that I
think the Judge's question regarding this particular
case is not the proper question. A proper case is to
be determined by the Jury. This case is not in point
now. They can't properly even consider it. The
proper question is whether or not they could consider
imposing the Death Penalty in some case or a proper
case. Not this particular case.
THE COURT: The Defendant's objection is overruled.
The Juror will be excused for cause.
(The following proceedings were had in the hearing of the jury.)
THE COURT: Thank you, Mrs. Musgrave, You are
excused for cause.
Pirst, Juror Musgrave indicated that she believed that she
could agree to the death penalty without doing violence to her
conscience. The court demanded a more positive answer and she said
that she didn't believe she could agree to the death penalty
without its having an effect on her conscience. Then the court
asked her his standard, "Would your reservations prevent you from
voting for the death penalty?" question. She said, "No," followed
by, "No. I don't think I would.” The defense attorney then asked
if that meant she could possibly impose the death penalty in a
particular case, and she said, "Yes. That is right." Finally, the
court asked her his standard, "Could you agree to a verdict
imposing the death penalty without its doing violence to your
conscience?” question, and she answered, "No."
As was the case in the voir dire of the Juror Metivier, the
answers of the Juror Musgrave were also conflicting and confusing.
However, when viewed in their entirety, her answers also clearly
indicated her inability to consider the death sentence under any
circumstances,
The Supreme Court has held that @ sentence of death cannot
be upheld if potential jurors are excludec from the panel imposing
that punishment on the basis of their personal beliefs about the
death penalty. Witherspoon, supra. The only legitimate concern
upon voir dire of the jury panel is whether they will consider the
imposition of the death sentence, as one of the alternatives
provided by state law, should the case be appropriate. for that
punishment.
The voir dire examination of the jurors Metivier, Dragus ane
Musgrave, as set out herein, followed the guidelines set forth in
Koonce v. State, 456 P.2d 549 (Ok1.Cr.1969) and Gibson v. State,
501 p.2€ 891 (Okl.Cr.1972). When the voir dire examination is
viewed in its entirety as to each juror, anc in the light most
favorable to the defendant, the trial jucge could only conclude
that the mind of each juror was that sai¢c juror was irrevocably
committed, before the trial began, to vote against the penalty of
death regardless of the facts and circumstances that might emerge
in the course of the proceedings. Their answers were ambiguous,
hesitant and equivocal. The trial judge was in a position to view
the facial expressions, voice inflection, and mannerism in
answering the questions on voir dire. Ee evaluated the responses
from the totality of the courtroom environment and experience on
that day. The record supports his evaluation. Accoréingly, no
error occurred in excusing the jurors.
The appellant's third proposition accresses the excusing for
cause of jurors who cannot state that they could consider the death
penalty under Witherspoon vis a vis the challenge of jurors for
implied bias, R.L. 1910, § 5859; now 22 0O.S.1981, § 660. The
State's classification of this as a suggestion by the appellant
that this Court ignore the mandate of the Supreme Court in
Witherspoon or hold 22 0.S.1981, -§ 669, unconstitutional is
unfounded. The Supreme Court did not hold that jurors who could
mot consider the death penalty must be excluded, it simply said
that was a valid basis for exclusion.
The argument that Section 660 precludes excusal for Cause
under Witherspoon has been rejected by this Court. Gibson, supra,
and Koonce, supra. We are unpersuaded that these holdings should
be reconsidered,
In his fourth proposition, the appellant states that the
jury instructions unconstitutionally shifted the burden of Proof to
him to mitigate the homicide from murder to manslaughter, Grawing
the Court's attention specifically to Instructions No.5, 5A, 1, 8,
9, 10, and 14. He alleges that he was reguired to prove that his
actions we-e executed in the heat of passion upon adequate
Provocation and in the absence of malice, which effectively forced
him to prove that the homicide was manslaughter, not first degree
murder, citing Sandstrom v. Montana, 442 0.S. 510, 99 S.Ct. 2450,
61 L.Ed.2d 39(1979); and Mullaney v. Wilbur, 421 U.S. 684, 95
S.Ct. 1881, 44 L.Ed.2d 508 (1975); ane Gistinguishing Patterson y.
New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.24 281 (1977).
The trial court's instructions have been examined. In
Instruction No.5, the court defined and reguired proof beyond a
reasonable doubt of all of the elements of murder in the first
degree, with emphasis on malice. Circumstantial evidence was the
subject of Instruction No.6. In the seventh instruction,
manslaughter in the first degree was defined as a lesser included
offense of murder in the first degree, with emphasis on absence of
malice and heat of passion. Instructions No.8, 9 and 10 defined
heat of passion, adequate provocation, and absence of malice.
Instruction No.14 summarized the definitions of murder in the first
degree and manslaugtter in the first Gegree, with emphasis on the
~ State's burden to prove all elements beyond a reasonable doubt and
the operation of presumptions in the defendant's favor.
The State charged the appellant with murder in the first
degree and proved each and every element of that crime. Included
within that crime under the facts of ‘this case is manslaughter in
the first degree, and the court carefully instructed the jury
regarding each and every element of that crine. See both the
majority and concurring opinions in Morgan v. State, 536 P.2d 952
(Ok1.Cr.1975). The use of the word “reduce” in comparing
manslaughter to murder when instructing on the heat of passion upon
-9-
adequate provocation, as was done in Instructions 8 and 9, does not
Operate to shift the burden of proof to the defendant. The State
was mot required to prove absence of malice and heat of Passion
upon proof that the appellant had committed murder with malice
aforethought. However, the jury was free to interpret the facts
‘proved and determine that the State had proved manslaughter rather
than murder. This bears no relationship to any proof demanded of
the appellant. .'
The appellant maintains that Mullaney vy. Wilbur, supra,
controls. In Mullaney, a statutory presumption Operated against
the defendant that he had committed the homicide with malice
aforethought. This presumption, however, could be rebutted upon
proof, by the defendant, that he had acted in the heat of passion,
Mullaney's jury was instructed that malice aforethought and heat of
passion are inconsistencies and that the defendant could negate the
former by proving the latter. The Supreme Court held that this was
a shifting of the burden of persuasion to the Gefendant, in
contravention of his right to due process of the law.
In Patterson v. New York, supra, the Statutory scheme
provided for the affirmative defense that the defendant had acted
under an extreme emotional disturbance for which there was a
reasonable excuse, The Supreme Court held that the Patterson
court, unlike Mullaney, did not shift the burden to the defendant
to disprove any fact essential to the offense because the
affirmative defense of emotional disturbance bore no direct
relationship to any element of murder. Unlike Mullaney, nothing
was presumed in Patterson. The Court held, "To recognize at all a
mitigating circumstance does not require the State to prove its
nonexistence in each case in which the fact is put in issue..." 53
L.Ed.2d at 291.
The principal of Patterson is applicable even though
Patterson involved proof of an affirmative defense. The State is
not required to prove the nonexistence of a lesser included crime
in order to prove the greater crime. Accordingly, Mullaney is not
-10-
applicable because no presumptions Operated to relieve the State of
its burden to prove each and every element and
shifting to the defendant of any burden of proof,
Instruction No.5A, to which the Gefense's
Overruled, reads as follows:
You are further instructed that a Gesignt
Geath may be inferred fron the fact of the
when that killing is done by the use of a 4
weapon in such a manner as naturally and pro
there was no
Objection was
© effecs
killing
angerous
Sadly to
cause death unless the circumstances raise’ a
reasonable doubt whether such Gesign existed
The appellant maintains that this instructio
unconstitutional presumption struck Gown in Sandstr
nN parallels the
om v. Montana,
_———
Supra. In Sanéstrom, the jury was told that "the law Presumes that
@ person intends the Ordinary consequences of his y
thus effectively absolving the State fron proving
element beyond a reasonable doubt,
The distinction is obvious. In the cas
Oluntary acts,"
each and every
e at hand, no
Presumption was declared. An inference was provided, but the jury
was not directed that a legal presumption should Or would be
followed,
As his fifth assignment of error, the appellant seexs
reversal on the basis of certain instructions which he Says denied
him his right to have his Claim of self-defense co
jury. Specifically it is alleged that Instructions
12B misstated the law and denied him his self-defe
nsidered by the
No.12, 12A, ana
nse theory; and
that Instruction No.12A shifted the burden of Proof to him. The
only objections made at trial went to 12A and 12B as repetitive ana
confusing.
The primary argument is that Instruction No.12, which
parallels the self-defense instruction discredited by this court in
Neal v. State, 597 P.2d 334 (Okl.Cr.1979), denied the appellant his
right to an instruction on his theory of defense.
entitled to an instruction on his defense when
A defendant is
that theory is
Supported by the record. Holt v. State, 278 P.24a 855 (ORL. Ce.
1955).
= Te
The following Instruction No.12 was given by the trial
court;
In this case, the defendant, as one of his
defenses, says that at the time of the difficulty,
he did, he was acting in his necessary self defense
to protect himself from the unlawful attack of his
adversary, and when @ person is unlawfully attacked
in such manner as to induce in him a reasonable
belief that he is in danger of losing his life, or of
Suffering great bocily harm, he is not required to
retreat, but has the right to stand his Sround and
use whatever force that seems necessary to repel the
attack in order to save himself fron Ceath, or to
Prevent what appears to him to be great bodily injury
threatened to himself, but he should at the time use
@ll reasonable means, apparent toa reasonable person
under the Circumstances, to avoid such danger, before
It is not necessary for this defense that the
defendant's Ganger should have been actual or real,
@l1l that is necessary is that the Gefendant, from his
Stancpoint, and under all the circumstances in the
case, had reasonable cause to believe, and dia
honestly believe, there was imminent danger to his
life or of great bodily injury being done to hin, ana
in determining whether Or not the defendant acteg in
his own necessary self Gefense, you shall view the
Circumstances as they then existed from the
standpoint of the Gefendant, and viewing the
Circumstances from that standpoint, you shall
determine whether or mot he was acting reasonably in
his own necessary self defense,
Should you find from the evicence in this case
that the defendant: acted in his own necessary self
defense, or should you-entertain a reasonable doubt
thereof, you should Qive the defendant the benefit of
Such doubt and acguit him.
The same instruction was criticized by this Court in Neal Vv.
State, supra, and the assault and battery conviction was reversed,
In that decision, this Court said, "This instruction is confusing
at best, It states that the appellant did not have a duty to
retreat; but it then Provides that he should have used ‘'al)
reasonable means,...to avoid [the] danger.'* Neal at 337,
However, Neal was not reversed on the basis of that instruction
alone. The evidence was not overwhelming and the Prosecutor relied
on the confusing instruction to argue that the defendant had not
tried to retreat before defending himself, Porter vy, State, 611
P.2d 278 (Okl.Cr.1980).
-12-
The record includes five instructions Gefinin and
explaining the self-defense theory and applicable law. Instruction
No.1ll defines justifiable homicide and introduces the concept of
self-defense, Instruction No.l2 is the Neal instruction
—
Instruction No.12A describes th
0
circumstances under which one
might reasonably fear that he is in Ganger of injury or death at the
hands of the deceased resulting in a justifiable homicide
Instruction No.12B defines "necessary self-defense” as "a necessity
imminent at the time of the killing and not prior thereto." that
instruction also qualifies the defense to the extent that, shoulé
the ceceased flee and the defendant pursue him when he is no longer
in danger, it is not a killing in self-defense, And, finally,
Instruction No.13 deals with a situation in which the defendant is
the initial aggressor, in which case self-defense does not apply.
An important concept in that instruction is stated as follows:
But one who is not the aggressor and is in a place
where he has a right to be, when violently assaulted,
Or when by the hostil [sic] conduct or Gemonstration
of another, he is induced to apprehend a design on
the part of the latter to take his life or inflict
upon him some great bodily harm may, without
s
retreating, stand his ground and resort to the use of
such force and violence as to hi: seems reasonably
necessary for his own safety, even to the taking of
y — ee ee
—
—
-
-
life, and such killing will Be justifiec on the
ground of self-defense, even though such danger was
mot real, but apparent. [Emphasis added.)
This instruction breaks down the inherent inconsistency of
Instruction No.12 by further explaining the concept of neans that
are reasonable to avoid the danger against which the Gefendant has
acted to secure his own safety. Our thorough examination of these
instructions and the law on self-defense reveals that the appellant
was not denied his defense theory.
Also attacked are two portions of the closing arguments by
the prosecutors, which the appellant cites to bring this case
directly within the Neal rule. However, an examination of those
arguments reveals no improprieties nor exacerbation of any
confusion created by Instruction No.12. |
Finally, an attempt is made to characterize Instruction
No.12A as shifting the burden, in violation of Mullaney v. Wilbur,
Supra. That argument, however, is completely without merit. No
~] 3~
part of the cited instruction indicates that the defendant bears
the burden to prove beyond a reasonable doubt that he acted in self
@efense. Furthermore, the citation to Berrier v. Egeler, 583 F.2d
515 (6th Cir.1978), cert. den. 439 U.S. 955, 99 S.Ct. 354, 58
L.Ed.2a 347 (1978), is inappropriate. In Berrier, the jury was
instructed that the defendant had to prove self defense. Yet,
under Michigan law, proof of the absence of sel® éefense is an
element of murder, which must be proved by the State... The Sixth
Circuit Court of Appeals reversed the conviction because of an
unconstitutional shifting of the burden of proof, citing In re
Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.£d.2d 368 (1970);
Mullaney v. Wilbur, and Patterson v. New Yors, supra. However,
the law in Oklahoma does not include the absence of self defense as
an element of murder. No error is found.
In his sixth assignment of error, the appellant argues that
the trial court erroneously overruled his pretrial motion in limine
to exclude a prior murder conviction from use in impeachment. The
motion was not re-urged at trial, and the evidence of the prior
conviction was admitted when the appellant testified in his own
behalf, and not when the State cross-examined him, as had been
anticipated by the pretrial motion.
A motion in limine is a written pretrial motion to preclude
evidence which would have no proper bearing on the issues and would
prejudice the jury. Tahdooahnippah v. State, 610 P.2d 808
(Okl.Cr.1980). The ruling on a motion in limine is advisory only,
and@ an incorrect ruling is not reversible error. In fact, no error
occurs until the matter arises during trial, an objection is
entered, and, at that time, the trial court incorrectly permits or
prohibits it. Teegarden v. State, 563 P.2d 660 (Okl.Cr.1977). In
the case at hand, the appellant's own testimony was the source by
which the jury was exposed to the evidence of his prior conviction.
No relief is available on appeal.
The seventh proposition on appeal addresses the trial
court's denial of the appellant's motion for continuance, filed on
the first day of trial, which was based upon the pendency of a
-l4-
Collateral attack on the prior murder conviction in Missouri. That
conviction, arising out of a guilty plea, was allegedly secured in
Violation of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23
L.Ed.2d 274 (1969).
In interpreting the "Postponement for Cause” Statute, 22
O.S.1981, § 584, this Court has acknowledged that the fuling rests
with the sound discretion of the trial court, which will not be
disturbed absent abuse, and this is particularly true where the
motion is offered on the date set for trial. Kirk v. State;:, 555
P.2¢ 85 (Okl.Cr.1976). Further, as the State argues on appeal, the
pendency of an appeal from a conviction does not render the
evidence of that conviction inadmissible. Newcomd v. State, 23
Okl.Cr. 172, 213 P. 900 (1923); now a part of the Evidence Code, at
12 0.S.1981, § 2609(e). The same rule applies to a pending
collateral attack on a conviction. Therefore, Judge Cook properly
exercised his discretion when he overruled the motion for
continuance, knowing that the prior conviction, and evidence of the
pending collateral attack, would be admissible evidence.
The excusing of a juror by the trial court, on defense
counsel's motion, and substitution of an alternate juror, over
objection of defense counsel, is urse2 as error in the eighth
assignment. The defense had entered a =ozion for a mistrial upon
the court's excusing of the juror, who had expressed the fear that
she would be prejudiced by her previous contact with two State's
witnesses, whom she recognized when they testified. The appellant
urges this Court to reconsider its holding in #ashington v. State,
568 P.2d 301 (Okl1.Cr.1977), and find, instead, that 22 0.S.1981, §
60la, operates to the exclusion of all other causes upon which a
juror may be excused.
Our review of the transcript indicates that the trial judge
meticulously proceeded in the questioning of this juror, when she
notified the court of her prior knowledse of the two witnesses,
and, in the discussion with counsel, gave consideration to the
argument that a mistrial should be declared. However, the court
then found that an alternate juror had already been selected and
-15-
that defendant would not be prejudiced by the
alternate.
Ourct held that 22 0.5.
ion of an alternate for a
regular juror in the case of illness or death, is not
ry : rh i h ePanlvie¢ ; ExnrnA whe :
(1930), in which the California court found that the substitution
i Se > hee ee a eh sie i ec to@ a
had not substantially affected the rights of the defendant, This
_ = 9 a : } , ‘ ' : .
Court continued by acknowledging the trial court's inherent power
Ok1.Cr.103, 101 P.2d 289 (1940), which relied on Bo
State, 4 Okl.Cr.576, lll P. 1006 (1910) In Boutcher, this Court
held,
If, for any reason, the trial court is of the
Opinion or even suspects that any given juror is not
faic and impartial..., it is not only the right, but
is is also the duty, of the court to excuse such
juror either upon
Or upon the mo
challense. Boute
.
the challenge of one of the parties
ion of the cour ithout such
ial
£
’
t
c
i
t
The appellant seeks reversal on a minor, technical matter,
Stating that the enactment of 22 0.5.1981, § 60la, abrogated the
discretion of the trial judge to substitute a juror for any cause
other than illness or death There is no merit to this argument. “2
, , . ~
A multiple hearsay problem is érawn to this Court's
attention in proposition number nine. A statezent allegedly made
by the now deceased Robert Jones relating a threat made by the
appellant to him was elicited from Henry Jones on direct
examination. The statement was admitted into evidence only,
an in camera hearing in which the trial court scrutinized the
question of the admissibility of both of the hearsay statements.
The testimony of Henry Jones admitted, after the trial court's
ruling, was as follows:
He told me that Charlie said he had a gun and that he
Ought to pull it out and shoot’ us all. (TR.510)
Robert Jones, while still at the scene of the confrontation, made
this statement to Henry Jones immediately after his encounter with
the appellant, Charles Davis, the Wednesday before the homicide.
-l6-
Our examination of this twofold statemen: conmvinces us that
the trial judge accurately analyzed the Statements and that Henry
Jones' testimony was properly admitted. First, there was the
appellant's statement to Robert Jones, in effect a threat to kill
Robert and the others, This statement was properly admitted to
incicate the declarant's intent toward future conduct. Shepard Vv.
—_4___
United States, 299 U.S. 96, 54 $.Ct. 22
76 L.EG.196 (1933); Mutual
<<
Life Ins.Co. v. Hillman, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ea. 706
we «
(1892); Wadley v. State, 553 P.2d 520 (Ox1.Cr.1976); and Sallee y,
State, 544 P.2d 902 (0k1.Cr.1976). This hearsay exception is now
in effect by legislation. Laws 1978, ch. 285, § 803; now 12 Os.
1981§ 2803 (3).
a
The second portion of this hearsay evidence consists of the
Statement made by Robert Jones to Henry Jones immediately afte
"
er
x
@
alleged threat by the appellant. This clearly falls within the
excited utterance exception, which this Court has held admissible,
although it is hearsay, "...because it is thought to have
Z 3
independent indicia of reliability. That is, an excited utterance
—
mace contemporaneous with a Specific event, which relates to or
describes the event, is held to be reliable because its nearness to
the stimulating event excludes th possibility of premeditation ana
fabrication." (Citations omitted) Bisnop v. State, 581 P.2d 45 at
48 (0k1.Cr.1978). Thus, the sincerity of the statement is
reliable. Now see 12 O.S.i961, § 2803(2).
Finally, these hearsay Statements demonstrate a
trustworthiness within the spirit of the specific exceptions. 12
O.S. 1981, § 2803(24); and § 2804(B)(5). The allegation of error
is not supported by the law,
In his tenth argument, the appellant contends that the trial
court erroneously ruled inadmissible the testimony of his probation
officer, in which she would have testified that the appellant had
Stated to her, after the homicide, that his actions were in self-
defense. The evidence allegedly should have been admitted under
the hearsay exclusion, which is now embodied in 12 0.8.1981, §
2801 (4) (a) (2). The pertinent portion of Section 2801 is as
follows:
-]7=
4. A statement is not hearsay if:
(a) the declarant testifies at the trial...and is
subject to cross-examination concernin the
Statement, and the statement is
(2) consistent with his testimony and is offereg to
rebut an express or implied charge against hin of
recent fabrication...
Rowever, in this trial, the excluded evidence was offered prior to
any testimony establishing self-defense, and therefore it could not
have properly been characterized as a prior consistent statement to
rebut any State's evidence tending to establish recent fabrication.
In proposition number eleven, the appellant addresses the
failure of the trial court to declare a mistrial when the appellant
testified to evidence of another crime. The following dialogue
occurred on cross-examination of the appellant by the District
Attorney:
Q. Now, how many guns did you own during the weex
A. Two.
Q. What kind of guns were they?
A. A .25 automatic and a .38 automatic.
Q. All right, sir. What about State's Exhibit No. 28?
et that gun?
A. On, right after -- The next de after they pulled r
those guns on me up there in Sapu.la.
Q. All right. You already had two guns. Why did you
get another one?
A. Well, Kathy had one of them.
Q. All right.
rt
+S
0
A. And the State Highway Patrol in Chandler haa
ther one.
- How did they get it?
- They took it off me.
- On the freeway.
° Is that after you had been at this meeting in
pulpa?
Q
A
Q. Where did he take it off you?
A
Q
S
As. ‘TOs, 61.
Q. So you had a gun up there with you?
A. Yes,sir,
MR. STUART: Your Honor, may I approach the
bench?
4
=19<
THE COURT: Yes.
(The following proceedings were had out of the hearing of the
Jury.)
MR. STUART: At this time, the Defendant moves for
a mistrial because of the admission of evidence of
another crime at the arrest by the Highway Patrolman
and its prejudicial affect. [sic] I don't see any
probative value.
MR. COATS: He volunteered it. I didn't
specifically ask him about it.
THE COURT: Overruled.
There are several bases upon which the trial court's ruling
is sustainable: the invitation of this evidence both by an
unresponsive answer and by the appellant's own testimony regarding
the meeting in Sapulpa and the existence of certain guns, Hainta v.
State, 596 P.2d 906 (0kl.Cr.1979); failure by defense counsel to
object in time to prevent the jury from hearing this evidence; and
the giving of an instruction by the court in which evicsence of
other crimes was to be considered only for limited purposes.
However, the primary issue here is whether the evidence of other
crimes affected the verdict of the jury, and we find that it did
not. These facts are susceptible to this Court's ruling in Agee v.
State, 562 P.2d 913 (Okl.Cr.1977), where there was only an
implication of another crime, obvious only to defense counsel. "To
extend the protection of this [other crimes] rule to every possible
implication which might be conceived by Gefense counsel would be a
severe stretching of the rule. This Court is not willing to extend
the rule this far." Agee, supra, at 916.
Improper impeachment is the subject of the twelfth
proposition on appeal. The appellant testified, on direct
examination, to his former conviction for murder. During cross-
examination, the State elicited evidence of related parole
violations.
Although both parties addressed this issue on appeal,
neither cited relevant authority. Dick v. State, 596 P.2d 1265
(Ok1.Cr.1979). This alleged error will not be considered.
-19-
In his thirteenth assignment of error, the appellant calls
this Court's attention to the following argument made by the
District Attorney at the close of the first stage of trial:
MR. COATS: --.-I thought and believed that it was
Murder in the First Degree when I filed this case...1
think we believe that it is now.
*_ * *
{An objection was entered and overruled.)
e+eI am equally convinced at this point, listening-to
the evidence of the witnesses. I think the evidence
amply demonstrates, all the way through here, and
that you may be compelled to the one ultimate
conclusion, and that is this Defendant committed two
cases of Murder in the First Degree...
The prosecutor is permitted to draw logical inferences and
state his conclusions based upon the evidence. Williams yv. State,
557 P.2d 920 (Ok1l.Cr.1976). However, it is improper for the
prosecutor to state his personal opinion or to influence the jury
to rely on his expertise as the State's attorney. See Davis v.
State, 413 P.2d 920 (Okl.Cr.1966). We find that the first portion
of the District Attorney's argument, in which he states that he
believed it was Murder in the First Degree at the time of filing, if
error was harmless when weighéd against the evidence of guilt.
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.ed.2¢ 705
(1967); James v. State, 637 P.2d 862 (Okl.Cr.1981).
Under his fourteenth assignment of error, the defendant
argues that the misconduct of the prosecutor during closing
arguments in the second stage of the trial proceedings irreparably
prejudiced the defendant's right to a fair and impartial trial.
The statements of the prosecutor in his final argument of
which defendant complains are as follows: "We are losing the
ability to become angry. Doesn't it sometimes--Don't you sometines
feel that sometimes we have got to stand up and say no more? You
know? No more."
After defendant's objection was overruled, the prosecutor
continued, "That has got to stop? and you cannot commit crimes of
this kind with impunity. And a life sentence for this man isn't
punitive. We tried that already. And it didn't work....*
-20-
He continues further,
- » «If Suppose you don't do it, and you pick up the
morning paper in a month or a week or five years, and
he has killed somebody else. How do you live with
that? How do you say to yourself: You know, if I had
had the courage to do what was right and what the
evidence compels and what the law requires, if I had
had the courage to do it then, it wouldn't have
happened. Not only is there a distinct possibility
that by coming out and saying no more, that you might
deter others from this act... .
After a further objection was overruled, the P
m"
oO
Ww
o
0
c
er
Oo
"
continued:
Suppose that you know by your judgment here and by
having the courage to stand up and say it, suppose
you just deter one other person fron committing this
crime. Cause o.e person to think just a minute
before they do it. Before they pull that trigger,
and they won't, and the score is even....
In support of this allegation, defendant cites a number of
cases wherein this Court has held that argument of counsel should
be particular to the circumstances Surrounding the crime of the
individual defendant and not for the need of the community to speak
Out and deter others. (Mitchell v. State, Okl.Cr., 408 P.2d S66.
Ball v. State, Okl.Cr., 375 P.2d 340; Potter yv. State, Okl.Cr., 511
P.2d 1120; should not attempt to make the defendant bear the burden
for an entire group of wrongdoers (Chase v. State, Okl.Cr., 541
P.2d 867); and should not attempt to get the issue of parole before
the jury. (Evans v. State, Okl.Cr., 541 P.2d 469).
None of the cases cited by defendant deals with argument of
counsel in the second stage of a proceeding involving the death
penalty. There was evidence in the case before us, during the
second stage of the trial, that the defendant had been previously
convicted of murder, and he did return fron prison to kill again,
“not once, but twice, and caused serious bodily injury to two
others. Nor can the remarks of the prosecutor be considered an
"unmistakable reference” to the pardon and parole systen,. Ris
remarks were derived solely from the direct evidence presented
during both stages of the trial. The prosecutor was justified in
his remarks, which fell within the boundaries of permissible
closing argument.
=2)-
Furthermore, any alleged error which night have occurred was
waived by the defendant's failure to request that the jury be
admonished to disregard the statement. In Sallee v. State, suosra,
this Court held that for an alleged error to be properly preserved
for review by this Court on appeal, defense counsel must not only
voice a timely objection, but must also request that the jury be
admonished to disregard the statement. In that case, the defendant
failed to request an admonishment and the court held he failed to
of the comments alleged as error.
For his fifteenth assignment of error appellant arsues that
the Oklahoma death penalty statute, 21 0.8.1981 § 701.9,
constitutes cruel and unusual punishment; violates his right to due
process and equal protection of the laws; perpetrates the arbitrary
infliction of the death penalty; and reveals the total absence of
any statutory mitigating circumstances.
That the death penalty is not cruel and unusual punishment
was firmly established in Gregg v. Georcia, 428 U.S. 153, 96 S.Ct.
2909, 49 L.Ed.2¢ 859, (1976). We reiterate that it was
constitutionally incorporated into our criminal procedure. Eddings
"i State, 616 P.2d 1159 certiorari granted 450 U.S. 1040, 101
§.Ct. 1756, 68 L.Ed.2d 237, (remanded for resentencing), therefore
it comports with due process and equal protection regquirezents,.
While it is true that as it appears 21 0.S.1981, § 701.9
Goes not enumerate specific mitigating circimstances as recuired by
Gregg, supra, this is mot grounds for reversal because in its
instructions the trial court submitted eight such circumstances and
further instructed that the jury need not confine its deliberations
to them. They were allowed to consider any additional circumstance
in mitigation which appeared from the evidence. No error occurred,
Appellant's sixteenth assignment of error is that 21 0.S.
1981, § 701.9 is unconstitutional because the State has failed to
show that the death penalty fulfills a compelling State interest
which cannot be gratified by less drastic means.
-22-
Rowever, this rationale was not acopted by the Supreme Court
in Gresg v. Georgia, supra:
: Although we cannot invalidate a catesory of penalties
because we deem less severe penalties adequate to
serve the ends of penolocy, .. . the sanction
imposed cannot be so totally wi t penological
justification that it result in he gratuitous
infliction of suffering. 428 U.S. 182, 183.
ee
Therefore in assessing a punishrent selected by a
Gemocratically elected legislature asainst the con-
stitutional measure, we presume its validity. We may
mot require the legislature to select the least
severe penalty possible as lons as the penalty
selected is haete cruelly inhumane or Ges proportionate
to the crime invoked. And a heavy bu rden rests on
those who | aati attack the juégrnent of the
representatives of the people.
Therefore this proposition is without merit.
For his seventeenth assignment of error appellant alleses
that instruction number five unconstitutionally shifted the burden
of proof to the defendant:
You are instructed that in the event you unanimously
find that one or ~*more of these aggravating
circumstances existed beyon a reasonable doubt,
then you would be authorized “te consicer imposing a
sentence of death.
If you do not unanimously find beyond a reasonable
doubt one or more of “the Statutory aggravating
circumstances existed, then you would not be
authorized to consider the penalty of death. In that
event the sentence would be imprisonrsent for life.
If you do unanimously find one or more of these
Seprerating circumstances ema aly then you would
not be authorized to consider th penalty of death,
In that event the sentence would ro imprisonment for
life.
If you do unanimously find one o: more of these
aggravating circumstances existed beyond a
reasonable doubt and you further find that such
- aggravating circumstance or circunstances is
outweighed by the finding of one or more mitigating
circumstances the death penalty shall not be imposed,
In that event the sentence would be imprisonment for
life.
Similar instructions have passed constitutional muster. In Chaney
v. State, supra, we held:
The jury was also instructed in accordance with
Section 701.11 that the sentence would be life
imprisonment if they found no aggravating
circumstances or if mitigating circumstances
Outweighed the aggravating circumstances they found.
We hold these instructions gave the jury sufficient
guidance to prevent an arbitrary or discriminating
application of the death penalty.
-23-
We find that the burden of proof was not shifted by these
instructions.
For his eighteenth proposition of error appellant contends
that the aggravating circumstance that the offense committed was
especially heinous, atrecious and cruel is unconstitutionally vague
and overbroad. We reject this contention ané reaffirm our decision
in Chaney, supra, that Instruction No. & gave the jury adeguete
guidance: *
You are further instructed that the tern 'heinous,®
as that term is used in these instructions means
extremely wicked or shockingly evil, and that
‘atrocious' means outrageously wicxed and vile; ane
‘cruel' means designed to inflict 2 high degree of
pain, utter indifference to, or enjoysent of, the
suffering of others; pitiless.”
For his nineteenth assignment of error appellant asserts
that the evidence by the prosecution is insufficient as a matter of
law to prove beyond a reasonable doubt the eggravating circumstance
that the crime was especially heinous, atrocious, or cruel. He
essentially argues that in order for the crime to fall within this
category a substantial amount of physical or mental torture must
precede the killing; which has been the general interpretation of
the Florida court. State v. Dixon, 283 So.2¢ 1 (Fla. 1973). See
Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2950, 49 L.Ed.2d 913.
However, in construing 21 0.S.Supp.1976 § 701.12(4), we are not
bound only by the limitation that our interpretation not be open-
ended. Gregg v. Georgia, supra. Accordinsly we find that since
appellant perpetrated a mass-murder by inflicting multiple gunshot
wounds to his victims the jury was presented with sufficient
evidence from which they could find the acts “atrocious” as defined
in the instructions. No error occurred,
For his twentieth assignment of error appellant argues that
the instructions of the trial court during the second stage of the
trial proceedings were inadequate as a matter of law. Particularly
arguing that the jury was not instructed properly under 21 0.S.
Supp.1976, § 701.11 that they may refuse to impose the sentence of
death after finding the presence of an aggravating circumstance
which outweighs mitigating circumstances, appellant demands
reversal, Appellant did not object at trial and offers no
authority for his proposition. We find that the instruction's
-24-
fairly and accurately stated the applicable law. Batie v. State,
545 P.24 797 (Okl.Cr.1976).
For his twenty-first assignment of error appellant argues
that error occurred in an instruction which allowed the jury to
consider all the facts and circumstances presented in the first
stage of the proceedings in considering che correct punishment.
However this contention is without merit in light of -Lockett v.
Ohio, 438 U.S. 585, 98 S.Ct. 2954, 57 L.£2.25 973, 98 S.Ct. 2954
(1978) where the Court reld
. « ewe conclude that the Eighth ans Fourteenth
Amendments require that the sentence in all but the
rarest kind of capital case, mot be precluded fron
considering as a mitigating fact OF any aspect of a
3 eny of the
defendant's character or recor a=
circumstances of the offense tha: t
proffers as a basis for a sentence less
In appellant's twenty-second proposition, appellant
complains of Instruction No. 13 to the second stage of the
proceedings:
You should not allow sympathy, sentizent or prejudice
to affect you in reaching your decis:=n, oF any other
arbitrary factor. You should avoid env influence of
passion or prejudice when imposing sentence.
No. 6 You are not limited in your cons.ceration to
these minimum mitigating circumstarces, if any your
find from the evidence in this case. «at are and
what are not additional mitigating c.rcscstances is
for you the jury to determine.
The appellant specifically argues that Instrcction No. 13 precluded
the jury from considering as mitigating circ=amstances of character
and prior record. We do not agree. When re2d with No. 6, the
context of these instructions bound the j-rors5 to confine their
deliberation to objective analysis of the evicence presented and to
dispense with any deep seated bias or arsitrariness. No error
occurred.
For his twenty-third assignment of error appellant argues
that the trial court improperly instructee she jury to unanimously
return a verdict and select a verdict form in violation of 21 0.5.
Supp.1981 § 701.11. Furthering his arguzent for reversal, it is
argued that § 701.11 mandates the trial court to instruct the jury
to render a life sentence if they cannot reasonably agree to a
verdict; that the court would intervene it they could not agree.
=-25-
Jury verdicts in Oklahoma crizinal Procedure must be
Unanimous. 22 0.S.198l1, § 921, 922. When read in conjunction with
21 0.S.1981, § 701.11, it is clear that in a Capital case (1) a
verdict for the sentence of death must be unanimous and accompanied
by an aggravating circumstance, (2) death will not be imposed if
the jury unanimously finds that mitigating factors Outweigh
aggravating circumstances, (3) that a jury verdict recommending
life imprisonment must be unanimous, (4) that if the jaory cannes
agree within a reasonable time the court shall dismiss the jury and
record a life sentence.
As his final assignment of error appellant complains of
Instruction No. 5 to the second Stage of the proceedings. Ee
argues that he is entitled to an instruction to the effect that if
the jury may refuse to impose a sentence of Geath even if the
aggravating circumstances outweigh the mitigating circumstances or
if none exist, .
We find that the trial court instructions correctly stated
the law and particularly that languase of the first paragraph
"authorized to consider imposing a sentence of Ceath” left the jury
free to consider either life or ceeth in a fair manner.
Accordingly no error occurred.
Finally, as required by 21 O.S.1961, § 701.13(B) this Court
makes the following findings with regarc to sentences of death
which have been imposed by the jury. Accordingly we find that: (1)
the sentence of death was not imposed under the influence of
passion, prejudice, or any other arbitrary factor; (2) the evidence
Supports the jury's finding of Statutory asgravating circumstances
as enumerated in 21 0.S.1981, § 701.12; (3) and the sentence of >
death is not excessive or Gisproportionate to the penalty imposed
in similar cases after considering both the crime and the
defendant.
For the reasons herein stated, the judgment and sentence
appealed from should be, and the same is hereby, AFFIRMED.
Judge Tom R. Cornish filed his recusesent in this appeal and
the Honorable Donald E&, Powers, District Judge for the 23rd
Judicial District was appointed to serve in his stead. Judge
Powers authored this opinion.
=26-
. AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
THE HONORABLE DAVID M. COOK, DISTRICT JUDGE
CHARLES WILLIAM DAVIS, appellant, was convicted of Murder in the
First Degree, in Oklahoma County District Court, Cases No. CRF-77-
2905 and CRF-77-2906. He was sentenced to ceath and appeals.
AFFIRMED.
ROBERT A. RAVITZ
ASSISTANT PUBLIC DEFENDER
OKLAHOMA COUNTY
OXLAHOMA CITY, OXLAHOMA
Attorney for Appellant
JAN ERIC CARTWRIGHT
ATTORNEY GENERAL
STATE OF ORLAHOMA
SUSAN TALBOT
ASSISTANT ATTORNEY GENERAL
TOMILOU GENTRY LIDDELL
LEGAL INTERN
OKLAHOMA CITY, OXLAHOMA
Attorneys for Appellee
BUSSEY, P. J.: Concurs :
BRETT, J.: Concurs in part and dissents in part
While I agree that the conviction for Murder in the First
Degree should be affirmed, I cannot concur with the majority that
the death sentence should be affirmed because I believe that Jurors
Metivier and Musgrave were excused in violation of Witherspoon v.
Illinois, 391 U.S. 510, 88 §.Ct. 1770, 20 L.Ed.2d 776 (1968).
When the court asked Juror Metivier the question ending,
*...-{AJre your reservations about the [djeath [p)enalty?" She
answered, "No.
A negative response to that question must be
interpreted to mean, "No, mv reservations are not such that I would
not inflict the death penalty.” However, the trial judge,
attempting to clarify the confusing question, asked .t more simply
and she indicated that she would not inflict the death penalty. ->
At this point, Juror Metivier had given two answers in
Girect conflict. Then the defense attorney asked her if she was
saying that she would automatically refuse to impose the death
penalty, and she replied, "No, I'm not." The court repeated its
second question, and her reply reflected her beliefs when she said,
loontusion apparently stems from the use by the court of a
question couched in negative language.
-27-
"r just don't believe in taking on
her willingness to consicer death
The Supreme Court has held
be upheld if potential jurors ace
e's life...” It did not reflect
as a punishsent.
that a sentence of death cannot
excluded from the panel imposing
that punishment on the basis of their personal beliefs about the
death penalty. Witherspoon, Supr
upon voir dire of the jury panel i
a. The only legitimate concern
s whether they will consicer the
imposition of the death sentence, as one of the alternatives
provided by state law, should the case 5e appropriate for that
punishment.
with this in mind, the trial court's standard first question
is not pertinent. he second question is confusing to read, and it
*
must be even more confusing to
Metivier's response to the defense
for cause of this juror was error.
hear. Given that, ané Juror
attorney's question, the excusal
I also believe that the majority's analysis of the voir dire
of Juror Musgrave is clearly err
indicated that she believed that
oneous. First, Juror Musgrave
she couléd agree to the ceath
penalty without doing violence-to her conscience. The court
demanded a more positive answer
believe she could agree to the cea
and she said that she Gidn't
th penalty without its having an
effect on her conscience. Then the court as*ed her his standard,
"Would your reservations prevent
penalty?” question. She said, ”
think I would.” The defense attor
you from voting for the death
No,” followed by, "No. I don't
ney then asked if that meant she
could possibly impose the death penalty in a particular case, and
she said, “Yes. That is right.”
standard, "Could you agree to a ve
Finally, the court asked her his
rdict imposing the death penalty
without doing violence to your conscience?” question, and she
02
answered, “No. As I have alr
eady said, whether it would do
2rhe crucial determination is whether the juror would
conscientiously consider the death
alternatives, not whether it wuold
penalty as one of the punishment
affect her conscience.
‘
.
-28-
_
violence to her conscience is not the issue. This voir dire is
replete with confusion, and the only two things that are clear are
as follows: It would affect her conscience. And this would not
prevent her from considering the death penalty under the
appropriate circumstances.
er
oe
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-29-
iLED
ne MwNA. ArmEAlS
|
oa |
a
Qn
t
IN THE COURT OF CRIMINAL APPEALS OF THE STATE
|
CHARLES WILLIAM DAVIS, ) | Ross N Lillard, Jr. |
: CLERK
Petitioner, )
Respondent. )
ORDER DENYING PETITION FOR REHEARING
AND DIRECTING ISSUANCE OF MANDATE
ih
NOW on this Ff doa day of June, 1983, after having examined
the petitioner's petition for rehearing in the above styled and
numbered cause, and being fully advised in the premises, this Court
finds that it should be, and the same hereby is DENIED. The Clerk
of this Court is directed to issue the mandate forthwith.
IT IS SO ORDERED.
7
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 7 taay of
4 -
June, 1983.
tDING JUDGE
DONALD E. POWERS, JUDGE
APPENDIX C
Petition for Rehearina in the
Oklahoma Court of Criminal Appeals
FILzZD
PTR ietee, AMPEALS
we bse oe oe
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA
MAY 31 1983
CHARLES WILLIAM DAVIS, Ross N Lillard, Jr
)
)
F-78-140
-Ve- ) No. F-78-14)
)
)
)
)
THE STATE OF OKLAHOMA,
Respondent,
PETITION FOR PEFFAPING
The Petitioner, CHARLFS WILLIAM DAVIS, respectfully
requests this Court reconsider its opinion of May 9, 1983 ana
recall that opinion for the following reasons:
1) The Court's Opinion affirming the excusal of Jurors
Musgrave and Metivier violated the Cefencent's rights under the
Eighth and Fourteenth Amendments to the United States
Constitution and was improper in light of the Supreme Court's
continued acherence to the standard of Witherspoon v, Illinois,
391 U.S. 510 (1968).
2) Petitioner's rights under the Sixth, Eighth and
Fourteenth Amendments to the United States Constitution were
violated by the Court's decision Genying state funds to hire a
Psychiatrist to present mitigating factors on behalf of the
defendant.
3) The Eighth and Fourteenth Arenérents to the United
States Constitution were violatea by the prosecutorial
misconduct during the sentencing stage of the trial Proceedings.
4) The interpretation of the eggravating circumstance
especially “heinous, atrocious or cruel” violates the
Gefendant's due process rights under the Ficghth and Fourteenth
Amendment in light of the interpretation placed on "cruel,
heinous and atrocious” by the Oklahoma Court of Criminal
Appeals.
5) This Court should reconsider its tolding that Oklahoma
law allows for a mandatory imposition of the death penalty if
aacravating circumstances outweiah miticetina circumstances or
if no mitigating ci
f) The Fiahth an Fe rt e > Arer - e~< reé irerenrt ‘
proportionality review in capital cases recuires modification
of the instant case to life imprisonment.
7) The defendant was denied reliability in sentencing as is
constitutionally required under the Eiahth anc Fourteenth
Amendments to the United States Constitution by virtue of the
cross examination of the Petitioner wherein the State elicited
evidence of related parole violations.
Respectfully submitted,
Pah KA
ROBERT A. RAVITZ
First Assistant Public Defender
CEPTIFICATE OF SERVICE :
This is to certify that a true and correct copy of the
above and foreaoing PFTITION FOR REHFARING was served to the
Attorney General in and for the State of Oklahoma this 3lst day
Reba Uf Roof
ROBERT A. RAVIT
of May, 1983.
Fit
cot g Beale
MAY 3) 1983
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA
Ross N Lilard, Jr
CHARLES WILLIAM DAVIS,
Petitioner,
‘oo
)
)
)
) . ;
-vs- ) No. F-/3¥-/4/
)
THE STATE OF OKLAHOMA, )
)
)
Respondent.
BRIEF IN SUPPORT OF PFTITION FOR REHFAPING
PROPOSITION I
THE COURT'S OPINION AFFIRMING THE EXCUSAL
OF JURORS MUSGFAVE AND METIVIER VIOLATED
THE DEFENDANT'S RIGHTS UNDER TKE EIGHTH
AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND WAS IMPROPER IN
LIGHT OF THE SUPREME COURT'S CONTINUED
ADHERENCE TO THE STANDARD OF WITHERSPOON
V. ILLINOIS, 391 U.S. 510 (1968).
The Court's Opinion fails to consider the United States
Supreme Court's continual concern that jurors be excluded only
on the basis that they make it unmistakably clear that they
would automatically vote against the imposition of capital
punishment without regard to any evidence that might be
developed at the trial of the case before them, and (2), that
their attitude toward the death penalty would prevent them from
making an impartial decision as to the defendant's guilt.
Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, quoting
Witherspoon v. Illinois, 391 U.S. 510, n. 21. Implicit in the
reaffirmation of Witherspoon by the United States Supreme Court
is the Court's concern that state appellate courts throughout
the nation not condone Witherspoon violations s0 as to stop the
ongoing stream Of Witherspoon cases getting reversed in the
federal courts.
This Court in addition to the affirmation of Petitioner
Davis' death sertence, must he concerned with the precedential
affect that an improper discussion of Witherspoon will have on
state trial judces throughout the State of Oklahoma. If state
trial judges continue to allow for the type of voir dire that
went on in the instant case, Witherspoon error will run rampant
through capital cases from Oklahoma, eventually going to the
4
federal courts. To condone Witherspoon error in the instant
case will allow state trial judges to excuse jurors improperly
and will prevent the state's legitimate right to exercise the
Gecision of the people to have a constitutionally valid death
penalty imposed where appropriate.
In Burns v. Estelle, 592 F.2d 1297, Judge Gee emphatically
points out the fact that despite the court's feelings that a
proper case for the death penalty has feen shown, Witherspoon
Goes not allow it. In Burns, Judae Gee states:
"Witherspoon v. Illinois and its progeny
form the legal terrain of this difficult
and distressing case. Its
factual merits are not involved, so that
mercifully we are spared recounting the
pitiful details of the gross and brutal
murder which the evidence arply shows
this habeas petitioner committed. The
only points before us concern the matter
in which the jury then imposed his death
penalty was constituted. Sufficive to
say that if any crime merits such
punishment, it is thoroughly deserved by
Burns. Nevertheless, a faithfu
observance of the Supreme Court authority
forbids its imposition here and it falls
to us to say so.”
Burns was affirmed by a unanimous Fifth Circuit en bane on
rehearing in Burns v. Estelle, 626 F.24 396 (1980) after the
United States's Gecision in Adams, supra. A review of the voir
dire in Burns as set out in the en banc opinion also written by
Juece Gee, conclusively shows that the jurors excused in Burns
were far less committed to considering the death penalty than
those excused in the instant case for petitioner.
Similarly in Moore v. Estelle, 670 F.2d 56 (1982), a juror
similar to the jurors in petitioner's case, was hesitant
regarding her feelings about capital punishment. Near the end
of her lencthy questionina, she summed up her position as "if
you make me co it, I'll do it riqht.” The court concluded her
exclusion was improper.
In the instant case, the Court when faced with Juror
Musacrave, was faced with a juror who stated that she could
possibly impose a death penalty in some particular case but the
court, requiring this juror to qo further and qive a definitive
positive answer, improperly excluded this juror. Similarly,
Ms, Metivier never stated she was irrevocably committed to not
considering the death penalty but only that she did not believe
in taking ones life. These two jurors’ excusal falls far short
of the recuirement of the United States Supreme Court in
Witherspoon. To condone the excusal in this case will allow
state trial judges to excuse people improperly and put in
jeopardy every potential capital conviction the state obtains.
This Court, in its decision in the instant case, has invoked
the standard for approving Witherspoon error Cevoid of any
rational basis under Witherspoon with the potential affect of
nullifying constitutionally valid death penalty cases on
improper cuestioning by state trial jucces.
This Court should reconsider its decision upholding the
propriety of the voir dire excusals in the instant case.
PROPOSITION IT
PETITIONEF'S RIGHTS UNDER THE SIXTR,
EIGHTH AND FOURTEENTH AMENDMENTS TO TRE
UNITED STATES CONSTITUTION WERE VIOLATED
BY THE COURT'S DECISION DENYING STATE
FUNDS TO HIRE A PSYCHIATRIST TO PRESENT
MITIGATING FACTORS ON BEHALF OF
DEFENDANT.
wus
-me
nm
To guard against the arbitrary and ceoricious infliction of
the death penalty which caused a majority of the state's
statutes on capital punishment to be voiced by the United
States Supreme Court decision in Furman v. Georgia, 408 U.S.
238 (1972), the United States Supreme Court in affirming the
capital punishment statues of Florida, Georgia and Texas in
1976, concluded that the separate sentencing hearings following
conviction or adjudication of a capital offense which dealt
with the character and record of the individual and the
circumstances of the crime and authorizing the defense to beina
before the jury whatever mitigating circumstances related to
the individue’ defendant aquaranteed that the constitutional
infirmity found in the state statutes in Furman, supra had in
fact been alleviated. See Greac v. Georcia, 428 U.S. 153,
Proffitt vy. Florida, 428 U.S. 262 and Jurek vy, Texas, 628 U.S.
262. Similarly, the United States Supreme Court has found that
@ Capital punishment Statute that has the effect of Preventing
@ sentencer fron considering al} potentially mitigating factors
reflected in a Particular Gefendant's Cheracter ané
Circumstances is constitutionally infirm, because it preventea
the sentencer fror considering any espect of the Gefendant's
cheracter ana record as independently mitigating factor, Se,
Lockett y, Ohio, 438 u.s, sSge6 (1978) .While the Gefendant in the
instant case, was given an Opportunity to Present evidence in
Mitigation, the Petitioner an indicent, was unable to produce
his wife Gearly as shown by the mitigating evidence, that is
hiring a psychiatrist who coulda have testified to the emotiona)
instability Of the defendant ana the true love ang the reasons
behind the killing. This denial was solely a result of the
Oklahoma statutes that prohibit any type of funds for experts
anc prohibit any type of analysis by the stete mental hospitea)
regarding petitioner's condition except such condition to
determine whether he is competent to eid ana assist his
attorney. See Generally 22 o.s,. 1175.2. In the instant case,
the Petitioner was Genied his rights to effective assistance of
counsel to effectively Present a mitigational Stage to ecua)
Protection and due Process under both the Eighth ana Fourteenth
Amendment by this Court's continual approval of the Standard
is necessary to attempt to save Petitioner's life. Petitioner
contends that this Procedure is constitutionally infirm ana
requests that this Court vacate its decision affirming the
death penalty as far as Petitioner is concerned,
PROPOSITION III
THE EIGHTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION WE?2
VIOLATED BY THE PROSECUTORIAL MISCONDUCT
DURING THE SENTENCING STAGE OF THE TRIAL
PROCEEDINGS.
This Court in apparent abandonment of the United States
Supreme Court's holding in Gardner v. Fioriga, 430 U.S. 349
recuiring reliability in capital cases tes allowed a clearly
improper and prejudicial closing arcume-: on behalf of the
prosecutor in Stage Two and condoned it on the grounds that
there is no Oklahoma case law regarding secende stage capital
cases to support the Petitioner's contention that the argument
violated established Oklahoma law. This particular part of the
Court's Opinion is in contradiction of recers established
Oklahoma capital cases regarding improper argument. Counsel
initially contended that the comments recarcing the ability of
the jury to become angry was not improper. A thorough reading
of this Court's decision in Hacer v. State, €12 P.2d 1369
(Okl.Cr. 1980) tells otherwise. In Hager, this Court held that
arguments based on juror's emotions are improper in the second
stage of a capital case, the sare arcqurer: rage by the
prosecutor in the Hager case appealing to the emotions of the
jury was the product of a reversal in Fecer. This Court
cannot, in its opinion state that this particular araument is
proper in light of this Court's cecision in Eager, supra.
Similarly, a majority of this Court in their specially
concurring opinion in Jones v. State, 660 P.26 634 (0*1.Cr.
1983) admonished the prosecutors that it was improper to place
the jurors in the posture of community watchdog. In the
instant case this too was done. The prosecutor's comments
dealt with the community's need to stop these type of crimes
the defendant cannot continue to act with impunity that a life
sentence was tried and was not punitive ané cidn't work and his
comments regarding the need to look into the future and see
that in four or five years, the defendant haé killed somebody
else. Further, comments under the deterrent effect of the
4
-5-
death penalty have also been held to be improper by this Court
in the capital case of Hacer, supra. FPecently, the Eleventh
Circuit in Hance v. Zant, 696 F.24 940 (llth Cir. 1983) held a
prosecutor violated the Eighth and Fourteenth Amenémrents by
arguing that prisoners would not be safe with petitioner in
prison and that he micht escape; that he, the D.A., would sleep
better with Hance cead; and that a vote for death was the
jurors' part in the battle acainst crime. The Court stating:
"this dramatic appeal to gut emotion has
no place in the courtroom, especially in
acase involving a penalty of death.”
This Court cannot in following Oklahora precedent, overrule the
Gecision in Jones and Hacer and expect to have an appellate
court determine that the Oklahoma Court of Criminal Appeals is
attempting to look at Oklahoma capital cases anc apply a
meaningful basis from d¢istinaquishinge those cases in which the
death penalty was imposed and those cases in which it was not.
See Generally Goddfrey v. Georgia, 446 U.S. 420 (1980). The
prejudicial argument in this case goes contrary to well
established law in capital cases in the State of Oklahoma.
This Court should reconsider its holding and modify the
defendant's sentence to life imprisonment.
PROPOSITION rv
THE INTERPRETATION OF THE ACTPAT2 “ING
CIRCUMSTANCE ESPECIALLY “SETs:Css,
ATROCIOUS OR CRUFL” VIOLATES “Hr
DEFENDANT'S DUE PROCESS RIGF"S CVrrp TEE
EIGHTH AND FOUPTFENTH AMENDYEN@™ -* LIGHT
OF THE INTERPRETATION PLACED ¢% *Cerer,
HETNOUS AND ATROC IOUS" BY TEI OFis20O™Ma~
COURT OF CRIMINAL APPEALS,
In Godfrey v. Georgia, 446 U.S, 42- -F0), the Unitea
States Supreme Court held that the Fic+-=+ s-a Fourteent>
Amendments to the United States Constitcti-c- Prohibited en
@ppellate court fror adopting a broad e-% 7#obe construction of
@n aggravating Circumstance, The Cours i- od frev concludea
that petitioner's crimes cannot be saié to save inflicted a
consciousness materially more Cepravee *=a- ary Person cuilty
of murder. In the instart case, this Ceusrs concluded that the
Petitioner perpetrated @ "mass murder” ++ imflicting Multiple
wounds on his victims, was sufficient to ce-s up with the
eggravating circumstance "cruel, heinous, a-4 atrocious” as
defined by the Oklahoma Court of Criminal Arseals in Chanev wv,
State, supra.
TO categorize this Crime @© a mass pester end that
therefore said mac- murder renders an offenes "crue), heinous
anc atrocious” is to obviously cateaorize this egsravating
Circumstance vague ana overbroad under tre E.crth and
Fourteenth Amendments to the United States Cexstitution. The
instant case involved a domestic Gispute wherein the Gefendant
was at home when the People came to his he-e. If this Cour+
holds that "cruel, heinous ana etrocious” a>slies to a mass
murder, obviously this is not the type of case to fall within
the category. What we are referring to uréer those types of
cases is a situation where numerous people ere killed in «
Planned, intended design to kill these peo>le end not a Spur of
the moment killing which though it amounts +5 melice
aforethought, cannot be said to be more Cezraved than the
average killing of an individual.
In the instant case we Con't have what we vould have where
Six people are Simultaneously executed in 2 rest locker wherein
4
this Court could legitimately categorize the actions aS a mass
murder but a domestic situation where the defendant May have
Createc a great risk of death to more than one person but
certainly his actions cannot be said to he more Gepravec than
the stancard killing. This application in the instant case,
violates the United States Suprere Court's clear mandate in
Godfrey v. Georgia, supra, that the retitioner's Crime reflect
@ consciousness materially more Cepreve4 than any Person guilty
of murder. For gaid reasons, Petiticxer: recuests this Court to
reconsider its finding that this particular proposition is
Cruel, heinous and atrocious and mocify Petitioner's sentence
to life imprisonment.
PROPOSITION V
THIS COURT SHOULD RECONSIDER ITS FOLDING
TRAT OKLAHOMA LAW ALLOWS FOR A MANDATORY
IMPOSITION OF THE DEATH PENALTY IP
AGGRAVATING CIRCUMSTANCES OUTWEIGE
MITIGATING CIRCUMSTANCES OP IF “0
MITIGATING CIRCUMSTANCES WERP FOUND TO
EXIST.
This Court has continually refused to ecdress the issue
which it seemed to conclude in Irvir v. State, 617 P.2e€ S88
(Okl.Cr. 1980), that if the aggravatire circumstances Outweich
mitigating circumstances, death is manéatory. In Proposition
XX, counsel again arqued that the court erred in failing to
give a jury instruction which stated thas if the aggravating
circumstance or circumstances do not Ourweigh the finding of
one or more mitigating circumstances, the jury may still
Gecline to impose the sentence of death ard sentence the
defendant to life in prison. The Court stating that the
instructions contained the appropriate law and that therefore
there was not error to fail to instruct lixe this. Counsel
calls the Court's attention to the recen+ denials of certiorari
in Smith v. North Carolina; Wil.iams v. North Carolina; Pinch
v. North Carolina, 103 S.Ct. 474 wherein Justice Stevens,
respecting the denial of certioriari in these three North
4
Carolina cases states: "In each of these three capital cases,
the trial judge instructed the jury that it hed the duty to
impose the death penalty if it found thet one or rore
tas
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aggravating circumstances existed, the
circumstances were sufficiently subste 1 to call for the
Geath penalty ana that the agcravatince circunstances outweicahed
the mitigating circumstances.” Justice Stevens contendeé that
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these instruction
cuestion recarding compliance with the Cecrt'’s holding in
Lockett v. Ohio, 438 U.S. S8e@6. Justice f<evens contenced that
a mandatory ¢eath penalty where mitigatics circumstances aid
not outweigh aggravating circumstances may violate Lockett
because the death penalty ould be impose? in spite of factors
which may call for the less severe penait*.
Similarly, in King v. Mississippi, Ne. 0 82-6106, 33 Cr. Le
4039, Justice Marshall would grant certiorari "to decide the
constitutionality of instructing a jury tat it must sentence a
defendant to death if it finds that the prosecution has proved
aggravating circumstances that outweich riticating
ten whether such an
circumstances. There is @ eubstantia
instruction impermissibly prevents the iury from basing its
sentence on ‘factors which may call for e less severe penalty,’
Lockett v. Ohio, 438 U.S. see, 605 (1978), even though they do
not outweigh the aggravating circumstances proven by the
prosecution. Cf. Woodson v. North Caroliza, 428 U.S. 280
(1976) ."
It was entirely possible that the jury in the instant case,
concluded that the aggravating circumstearces outweighed the
mitigating circumstances ana were thus, b2seé on the court's
instructions required to give the death senelty. Had the jury
heen properly instructed that they may still eecline to impose
the death penalty if they feel the totality ef the
circumstances justified life imprisonment, the jury more than
likely could have concluded that the death penalty was
inappropriate in this case since it involved 2a 57 year old man
4
=-9-
eaemeassenes case ao sae: ao ——-———-p-- :
ann Tr
in the commission of a domestic dispute. This court shoule
therefore modify this sentence to life imprisonment.
PROPOSITION VI
THE EIGHTH AND FOURTEENTH AMENDMENTS
REQUIREMENT OF PROPORTIONALITY REVIEW IN
THE INSTANT CASE TO LIFE IMPPISONYENT.
This Court concluded in its findines thet the sentence of
Geath was not excessive or disproportionate to the penalty
imposed in similar cases after considering toth the crime ana
the defendant. This Court has continually closely scrutinized
capital cases to determine whether the death sentence was
arbitrary and capricious considering the facts of the case.
This Court in Burrows v. State, 640 P.2¢ 533 (Okl.Cr. 1982),
concluded that the death penalty imposed during a heat of
passion, domestic killing while amounting to first decree
murder, was not an appropriate case for the death penalty.
(Opinion of Cornish, J. concurring in part and dissenting in
part and Brett, presiding judce concurrirs in modification of
defendant's sentence).
Similarly, a plurality of this Court hes modified a
sentence of death wherein the Court concluded the homicide was
@ most gruesome anc sadistic murder remartable in its atrocity
and lack of provocation. See Munn v. Stete, 658 P.2d 482.
There has been an almost universal refuse! by juries and by
appellate courts in Oklahoma to affirm the sentence of death
wherein the killings arose during a domestic Cispute. A close
look at the cases cited by Judge Cornish in Munn v. State and
the uniform lack of capital cases affirmee by this Court
wherein the killing arose out of a domestic situation,
demonstrates clearly that a comparison recuired by the Fiahth
and Fourteenth Amendments of proportionality review and by the
Oklahoma statutes clearly require modification of Petitiorer's
sentence of life imprisonment.
-10-
PROPOSITION VII
THE DEFENDANT WAS DENIED PELIABILITY IN
SENTENCING AS IS CONSTITUTIONALLY
REQUIRED UNDER THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION BY VIPTUE OF THE CROSS
EXAMINATION OF THE PETITIONER WHEREIN THE
STATE ELICITED EVIDENCE OF RELATED PAROLE
VIOLATIONS.
It is well established law in Oklahoma that comments on
parole are improper in deciding guilt or innocence or
punishment. See Evans v. State, 541 P.26 269 (Okl.Cr. 1975)
dealing with improper comments of prosecutor during closing
argument. In the instant case, the comments elicited by the
District Attorneys on cross-examination, in addition to being
improper under Oklahoma law, violated the Eighth and Fourteenth
Amendments requirement of reliability in sentencing as required
by Gardner v. Florida, supra. It is highly likely that a jury,
knowing about the parole system and the fact that people get
out on parole and considering that in their verdict, defnied
the defendant his rights to have his death sentence determined
on the basis of aggravating and mitigating circumstances and
not on factors which are irrelevant to the sentencing Gecision.
It is therefore respectfully requested that this Court
reverse its holding and modify the Petitioner's sentence to
life imprisonment.
CONCLUSION
For the foregoing reasons and in light of new cases
interpreting capital punishment statutes by the United States
Supreme Court and the federal courts and in light of numerous
holdings from this Court regarding our death penalty statute
and its concern for reliability in sentencing, this Court
should recall its Opinion and modify the Petitioner's sentence
to life.
Respectfully submitted,
Tot 4
ROBFRT A. RAVIT
First Assistant Public fender
Oklahoma County
CERTIFICATE OF SFEPVICE
This is to certify that a true and correct copy of the
above and foregoing BRIEF IN SUPPORT OF PETITION FOP REHEARING
was served to the Attorney General in and for the State of
Oklahoma this 3lst day of May, 1983.
LET lard
Voir Dire Feaminat
ae!
Oklahoma Court of Crimi
Metivier and Musoer
HE COURT: I ask you: In a case where the law and
the evidence warrant, in @ proper case, coulé vou,
without doina violence to your conscience, agree to a
verdict imposing the Death Penalty?
MS, METIVIEP: TI have protlems with that.
THE COURT: You what?
MS. METIVIER: I have problems with that.
THE COURT: You have problems with the Death Penalty?
And I agk you a second cuestion: If you found beyond
a reasonable doubt that the Defendant was auilty of
Murder in the First Decree, and if under the evidence
ana the facts and the circumstances of the case the
law would permit vou to consider a sentence of Death,
are your reservations about the Death Penalty such
that reaardless of the law, the facts and the
circumstances of the case, you would not inflict the
Death Penalty?
MS. METIVIER: No.
THE COURT: You would not inflict the Death Penalty ir
spite of the evidence, the law anda the circumstances
of the case? Do I understand vou?
MS. METIVIER: FRiatt.
MR, STUART: Mav I be allowed to ask an additional
question?
THE COURT: Yes.
MR. STUART: Ms. Metivier, my question, and I ar
askina you, @o Tt hear vou riaht? Are you savina that
you could never impose the Death Penalty in anv case?
You are not savina that uncer a proper case, that vou
couldn't consider imposinc the Death Penalty?
MR. COATS: I object to the form of the question, Your
Honor.
THE COURT: The form of the question is improper. Tt
is sustained.
MR, STUART: Ms. Metivier, you are not sayina you
would automatically refuse to impose the Death Penalty
in any case, are you?
MS. METIVIER: No, I'm not.
MR. STUART: That's all I have.
THF COURT: I ask you again. If you found heyond a
reasonable doubt that this Defendant was guilty of
Murder in the First Degree, and if under the evidence
and facts and circumstances of this case, the law
would permit you to consider a sentence of death, are
your reservations about the Death Penalty such that
regardless of the law, the facts and the circumstances
of the case, you would not inflict the Death Penalty?
The reason I repeat the question is because you
answered that you would not under any circumstances
inflict the Death Penalty when I firs
c
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cuestion. How @o you answer the cue =3
MS. METIVIER: I dust don't believe in takira one's
life. I'm not--You know, --
THE COURT: You are excused for cause.
MR, STUART: May I approach the bench?
THF COURT: Come to the benct.
The following proceedinas were had out of the hearina of the
jury).
MR. STUART: I am coina to object to excusine this
Juror for cause. I will move for a mistrial on the
basis of this. This Juror anewered my auestions of:
Would vou automatically refuse to impose the Death
Penalty? And she said No.
THE COURT: The obtecticn 18 overruled.
THE COURT: Irn a case where the law and the evidence
warrant, in a proper case, could vou, without doinc
violence to vour conscience, agree to a verdict
imposina the Death Penalty?
MS, MUSGRAVE: TY helieve I could.
THE COURT: That is not a eufficient answer. I take
that as heinag an answer tantamount to savine that vou
don't know. I will ask it again.
In a case where the law ana the evidence warrant, that
is a proper case, could vou, without doina violence to
your conscience, acree to a verdict imposina the Deattr
Penalty?
MS. MUSGRAVE: I don't believe I could.
THE COUPT: You don't helieve you could? If you found
beyond a reasonable doubt thet the Defendant in this
case was cquilty cf Murder in the First Dearee ane if
under the evidence, facts and circumstances of the
case the law would permit you to consider a sentence
of death, are vour reservations about the Death
Penalty such that regardless of the law, the facts and
the circumstances of the case, you would not inflict
the Death Penalty?
MS. MUSGRAVE: No.
THE COURT: Ma'am?
MS. MUSGRAVF: No. T don't think I would.
THE COURT: You would not?
MS. MUSGRAVE: Hubh-uh.
THE COURT: Is that a positive answer?
MS. MUSGRAVE: Yes, sir.
THE COURT: Or not?
MS. MUSGRAVE: Yes, sir.
MR. STUART: The same objection, Your Honor.
THE COURT: All riaht. The objection is overruled.
MP. STUART: Mav I he allowed to aek one auestion?
THE COURT: Yes, you mav.
MR. STUART: Miss Muscrave, I believe I heard vou sav
to that final auestior that you don't think vou
would. Now, that--Do I hear that to mean that you
could possibly impose the Death Penalty in some
particular case?
MS. MUSGRAVE: Yes. That is riaht.
MR. STUART: Yes, ma'am. That's all I have.
THE COURT: Well, I ask aagain. In thie case if the
law and the evidence warrant, in a proper case, if
this is a proper case. could you, without doing
violence to vour consc:ience, aaree to a verdict
imposina the Neath Penalty: I cannot accept anythinec
short of a positive response to that question, Miss
Mueacrave. Yes or no?
MS. MUSGRAVF: No. I woulde sav no.
THE COURT: Al] riaht. Anvthina further?
R err: vw. Vec eir Maw 7 -roacr the rench?
Ke. 3) H z ak 6 av - approac rencr ;
THE COURT: Yes.
(The followina proceedinas were had out of the hearina of the
jury).
MR. STUART: At this time, we move for a mistrial, ane
we would object to anv excusine of Mrs. Musarave for
cause as on this second question she said, "I think I
could." She told me she could in a proper--She didn't
say she couldn't in any case, and that is what
Witherspoon is directed at, and we strenously object
to excusina this Juror.
MR. COATS: I would say Counsel's questions were so
leadina that she would answer it--She has fairly
answered the Judge's questions set out by the Court
which if proper, and we move to have her excused.
MR. STUART: May I further say on the record that I!
think the Judge's question regardina this particular
case is not the proper question. A proper case is to
be determined by the Jurv. This case is not in point
now. They can't properly even consider it. The
proper question is whether or not they could consider
imposing the Death Penalty in some case or a proper
case. Not this particular case.
THE COURT: The Defendant's objection is overruled.
The Juror will be excused for cause.
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IN THEE SUPPEMF COUPT OF TFE UNITED STATES
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CFPAPLES WIITLIAM Pavrs, )
Peeieiorer )
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| RECEIVED
STATE OF OFLAFOM,,
| AUG 1 1963
Orrice ve int LickK
REFIDAVIT IN SUPPORT OF woTtrox [L__SUPREY™ rowiar 1
TO PROCEED IN FOPNA PAUPFPIS
Reeponcert.
I, CFAPLFS WILLIAM PAVIS, beire first @ulv eworn, state
thet I am Petitioner in the above entitled case; that in
evpport of my motior to proceed without Feira recuiree to pav
fees, costs, or cive security therefore, I estate that hecause
of my poverty I am uratle to pav the costes of saie proceedince
or tec Give eecurif thorefors erase FF Reliave T ar ereielaert er
I wae pre: cue? Qrarter leave *7 praoceet without crete or
crounee of orvers . Avrirae procee rec rer &F ¢ Ctace ir ere
, au 4 b >”
Ovlahome Court of Criminal Arpreals.
I further ewear that the reenorses which T have mate tr the
cuestionse below relatinc te my ability to pay the cost
oroesecutinre thre arpeal are true:
1. Are vou presertlyv emploved?
Answer: No, I ar presertliv ir the
custody of the Oklahoma Department of
Corrections, servine the sentence for
which I am petitionine the Court for
review. I have heen imprisoned
since MARCH 1979.
2. Have vou received within the past
twelve monthe any income from a Fusiness,
professior or other form of
self-erployment, or in the forr of rent
pavrentse, interest cividends, or other
sources?
Answer: No.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.