Petition — Robison v. Oklahoma

1. 83-6589

IN THE \

SUPREME COURT OF THE UNITED STATES RECEIVE

Te he

- ‘NAIL October Term, 1983

é

OR

OLAN RANDLE ROBISON,

Petitioner,

-Vvo-

STATE OF OKLAHOMA,

Respondent.

WRIT OF CERTIORARI TO

THE OKLAHOMA COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTIORARI

MARY E. BANE

Oyler & Bane

‘Investors Capital Building

Oklahoma City, Oklahoma 73102

(405) 232-4601

COUNSEL FOR PETITIONER

l. Can the State of Oklahoma, consistent with the Eighth

and Pourteenth Amendments of the Constitution, employ statutory

aggravating circumstances which, as interpreted by the Oklahoma

Court of Criminal Appeals, do not significantly confine,

channel or regularize capital sentencing discretion?

2. Can the State of Oklahoma use the aggravating

circumstance that the petitioner “knowingly created a great

risk of death to more than one person" in a manner that permits

multiple punishments based on one set of facts?

QU SST IONS PRESENTED. . > . . * ° > > . >. * > . . > . 7 > .

OPINION BELOW. . ° . . * ° > > 7 . > ° . > . . . . . . > >

JURISDICTION . . . eo . . o * . . . . . . . . . . * . . . .

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THIS CASE... ++ +e ee © @ &

STATEMENT OF THE CASE. .. + ++ +2e+eeeeeeeeeeee

Course of Proceedings. ...++++*+s#+e2e 2 28 ee #

Evidence At Trial. ... +. +«+s-e+eeseeee eee ees

Sentencing Phase ...++s 2eeee eee eee eee

HOW THE FEDERAL QUESTIONS WERE DECIDED BELOW. ..+ +s «+

REASONS FOR GRANTING THE WRIT. . . «© + © © © © © © © © @

I. THE STATUTORY AGGRAVATING CIRCUMSTANCES

THAT THE MURDERS WERE “ESPECIALLY

HEINOUS, ATROCIOUS OR CRUEL", AND THAT

PETITIONER “KNOWINGLY CREATED GREAT RISK

OF DEATH TO MORE THAN ONE PERSON" DO NOT

CONTROL ARBITRARINESS IN THE EXERCISE OF

CAPITAL SENTENCING DISCRETION.

II. IMPOSITION OF THE DEATH PENALTY AGAINST

PETITIONER IS IMPERMISSIBLE UNDER THE

FIFTH AND FOURTEENTH AMENDMENTS TO UNITED

STATES CONSTITUTION BECAUSE IT INVOLVES

MULTIPLE PUNISHMENTS BASED ON ONE SET OF

FACTS.

CONC LUSION a7 s * . e oe * * . . . ° ° . . o . . .

INDEX TO APPENDIX. ~ . 7 . - >. - . . 7 > >. . . .

A. Opinion of the Court of Criminal Appeals

B. Order Extending Time Within Which to File

Petition for Writ of Certiorari

C. Statutory Provision Involved in thaw ase

oocUC NWlUlUC OUmUCMPmUC WCU CUD

17

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

OLAN RANDLE ROBISON,

Petitioner,

-~against-

THE STATE OF OKLAHOMA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE OKLAHOMA COURT OF CRIMINAL APPEALS

To The Honorable, The Chief Justice, and Associate Justices

of the United States Supreme Court:

Petitioner, Olan Randle Robison, prays that a writ of

certiorari issue to review the decision of the Oklahoma Court

of Criminal Appeals on January 13, 1984, affirming his

convictions on appeal and sentences of death.

OPINION BELOW

The opinion of the Court of Criminal Appeals is designated

for official publication, but has not appeared in the Pacific

Reporter. It is set out at Appendix A.

JURISDICTION

The judgment of the Oklahoma Court of Criminal Appeals was

entered on January 13, 1984, and an order extending until April

12, 1984 petitioner's time to file this petition for writ of

certiorari was entered on March 8, 1984 by the Honorable Byron

R. White, Associate Justice of the United States Supreme Court

(Apendix B). No date for petitioner's execution has been set.

The jurisdiction of this Court is invoked under 28 U.S.C. §1257

(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

; D

This case involves the Fifth Amendment to the Constitution

which provides in pertinent part:

*"(NJor shall any person be subject for

the same offense to be twice put in

jeopardy of life or limb."

and the Eighth Amendment to the Constitution which provides in

relevant part:

"Excessive bail shall not be required, nor excessive

fines imposed, nor cruel or unusual punishments

inflicted."

and the Fourteenth Amendment to the Constitution which provides

in pertinent part:

*(NJor shall any State deprive any person

of life, liberty or property, without due

process of law."

This case also involves the following Oklahoma statutes: 21

0.8. 1981 §701.7; 21 0.S. 1981 §701.9; 21 0.S. 1981 §701.10;

21 0.S. 1981 §701.11; 21 0.S. 1981 §701.12; 21 0.8. 1981

$701.13, which are set out at Appendix C.

STATEMENT OF THE CASE/1

Course of Proceedings

Petitioner and two others/2 were charged with three counts

of murder in the first degree resulting from events that

transpired on June 12, 1980. (R-1l, p. 1-5) On March 27, 1981,

Petitioner was convicted on all three counts by a McClain

County District Court jury. (R-1l, p. 13-14) On March 28,

1981, that same jury sentenced petitioner to death for each

murder count. (R-1l, pp. 15-19). Pursuant to 21 0.8. 1981

$701.12, the jury found the following aggravating circumstances

present in all three killings: (1) that petitioner was

previously convicted of a felony involving the use or threat of

violence to the person; (2) that the petitioner knowingly

created a great risk of death to more than one person; and (3)

the existence of a probability that the petitioner would commit

criminal acts of violence that would constitute a continuing

threat to society. (Id). The jury found that as to victim

Averil Bourque that her murder was especially heinous,

atrocious or cruel, but that the murders of Julie Shelia

Lovejoy and Robert Leon Swinford were not. (Id). The jury found

that none of the murders were committed to prevent lawful

arrest or prosecution. (Id.) On April 28, 1981, petitioner's

motion for new trial was overruled, judgment and sentence was

imposed, and a death warrant was signed. (Id). at 7-8, 9-10,

11-12).

T7 The record in the Court of Criminal Appeals consists of

three bound transcript volumes (hereafter Tr. ), and two

bound copies of the pleadings (hereinafter R-l, R-2).

2/ Johnny Gillum was later tried and received sentences of life

imprisonment. William Starr Jordan was allowed to enter

negotiated pleas of guilty for life imprisonment.

On January 13, 1984, the Oklahoma Court of Criminal Appeals

affirmed the judgment and sentences of the District Court. It

also determined, as required by 21 0.8. 1981 §701.13(c), that

(1) the sentence was not imposed under the influence of

passion, prejudice, or any arbitrary factor; (2) the evidence

supported the aggravating circumstances found; and (3) the

sentence was not disproportionate or excessive to the penalty

imposed in similar cases, considering both the crime and the

defendant.

Evidence at Trial

On the morning of June 13, 1980, John Swinford discovered

the bodies of Julie Shelia Lovejoy, Averil Bourque, and Robert

Leon Swinford at the victims’ home near Velma, Oklahoma. (Tr.

p. 372-375) Ms. Bourque and Robert Swinford, who were living

together as boyfriend and girlfriend, were found in the same

bedroom. (Id). Ms. Lovejoy, a house-mate, was found in

another bedroom. (Id). The home was in a desheveled state when

the bodies were found. {Tr. 370-371) The victims died from

wounds caused by .22 caliber and .380 caliber shells./3 With

the exception of a wound to Ms. Bourque's chest, the evidence

of powder burns indicated all were shot individually at short

range. (Tr. p. 567; 571; 578; 579; 593). According to one

witness, the appellant indicated all of the victims were

individually shot. (635-640). No medical testimony was

presented regarding the pain or suffering of any of the victims.

37 Mr. Swintord died from two gunshot wounds in the back. Ms.

Bourque was shot four times, once in the chest, cnce in the

right ear, and twice in the forehead. Ms. Lovejoy died from a

single gunshot wound to the face. Ballistic reports showed

that all of the wounds except those to Ms. Bourque’s forehead,

were inflicted with a .380 caliber shell. (Tr. pp. 1014-15)

—

Jewelry estimated at $6,000 to $8,000 was found in a purse at

Ms. Bourque's feet. Missing from the home was Mr. Swinford's

watch, and a .22 caliber pistol.

The State used various witnesses to link petitioner with

the crime. Friends of petitioner testified that on June 12,

1980, petitioner consumed drugs and alcohol at his home at

Hearldon, Oklahoma before leaving that afternoon with William

Starr Jordan and his Jordan's girlfriend. (Tr. 418-420) When

petitioner returned, he was heavily intoxicated (Tr. 420-421).

He called Johnny Gillum in Wichita Falis, Texas, before passing

out for several hours. (Tr. 418, 423, 428) When he awoke,

Gillum, Jordan and petitioner loaded several guns into an

automobile belonging to petitioner's girlfriend (Tr. 561, 608,

652, 692, 717, 736). They left. Returning around 11:00 p.m.

with a suitcase, an errty purse, some jewelry, and some

pictures, (Tr. 729), everyone at the house immediately packed

and went to Wichita Falls, Texas. (Tr. 613).

At Wichita Falls, petitioner was alleged to have had a

woman clean a spot of what appeared to be blood off his boot

(Tr. 492, 515, 573), and to destroy the photographs. (Tr. 348,

512, 610, 695) The jewelry also was sold. One witness

reported that petitioner and Gillum disposed of a .380 caliber

pistol in Lake Arrowhead, which was later recovered by

police./4 (Tr. 616)

One witness testified that petitioner tol. her of shooting

the people in Velma, and that one of the women had a gun. (Tr.

635-640) Two other witnesses testified petitioner told them he

had participated in a robbery/murder of three persons.

Another witness stated that petitioner was aware that Ms.

Bourque possessed valuable jewelry. (Tr. 457, 458, 497).

77 & second pistol, a .22 caliber, was reportedly disposed of

by William Star Jordan. It too was later recovered by police.

Sentencing Phase

At sentencing phase, the prosecutor successfully moved for

incorporation into the second stage of all first stage

evidence, and introduced a judgment and sentence showing a

prior conviction of the petitioner for robbery with firearms

(Tr. 1196).

The State called no witnesses, nor did the defense. (Tr.

1196-1197) Wo mitigating evidence was presented and defense

counsel's argument consisted of six pages of transcript. (Tr.

1206-1212)

re". « ~--—-*+-* -——<]-wececes © ae

The Oklahoma Court of Criminal Appeals is required by

statute to determine whether a sentence of death is arbitrarily

imposed, and whether the evidence supports the jury's finding

of any statutory aggravating circumstances. 21 0.8. 19861

$701.13 (c) (1) (2).

That Court has already affirmed the constitutionality of

both the aggravating circumstances in question. Odum v. State,

651 P.2d 703 (Okl.Cr. 1982); Burrows v. State, 640 P.2d 533

(Okl.Cr. 1982).

oorenre e+ -me -——< - ee <8 ©28 1ee-———y eoewewe o*

CONTROL ARBITRARINESS IN THE EXERCISE OF

CAPITAL SENTENCING DISCRETION.

Title 21 0.8. 1981 §701.12, lists two aggravating

circumstances pertinent to this case that are

unconstitutional---that “the defendant knowingly created a

great risk of death to more than one person” (21 0.8. 1981

$701.12(2) and that “the murder was especially heinous,

atrocious and cruel.” (21 0.8. 1981 §701.12(4). These

provisions, as interpreted by the Oklahoma Court of Criminal

Appeals, are unconstitutional as they do not confine,

regularize, or chanel capital sentencing discretion. When an

aggravating circumstances is not utilized and interpreted in a

limiting and consistent manner, it is unconstitutional.

Proffitt v. Florida, 428 U.S. 242, 253 (1976) (Opinion of

Stewart, Powell and Stevens, J.J.); Gregg v. Georgia, 428 U.S.

153, 158 (1976); Woodson v. North Carolina, 428 U.S. 280, 303

(1976) (Opinion of Stewart, Powell and Stevens, J.J.). Both of

these aggravating circumstances were found in petitioner's

case, and the writ should be granted to vacate the death

penalty./5

37 The use of an overbroad or vague aggravating circumstance is

particularly troublesome in Oklahoma. This is because Oklahoma

law states only the statutory circumstances can be used in

aggravation, y) 0.8. 1981 §701.10, and because the improper

use of a statutory aggravating circumstance results in

modification of a sentence to life imprisonment. Johnson v.

State, 665 P.2d 815, on reh. 655 P.2d 826 (Ok1.Cr.

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ircumstance that the murder was e:

8 overbroad and inconsi

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This Court has already expressed some displeasure with the

way Oklahoma has interpreted this aggravating circumstance. In

Eddings v. Oklahoma, 455 U.S. 104 (1982), this Court noted that

the trial judge had round the aggravating circumstance of

heinous, atrocious and cruel because the crime was designed to

inflict a high degree of pain and utter indifference to the

rights of a police officer. Id. at 108, n. 3. The Court

observed:

"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 statute...However, we

Goubt the trial judge's understanding and

application of this aggravating

circumstance conformed to that degree of

certainty required by our decision in

Godfrey v. Georgia, 446 U.S. 420 (1980)."

Id. at 109, n. 4. In Godfrey v. Georgia, 446 U.S. 420 (1980),

this Court concluded that Georgia was interpreting a similar

aggravating circumstance in such a broad way that the Eighth

and Fourteenth Amendments to the United States Constitution

were being violated. The Oklahoma cases provide such little

guidance that there is no assurance that the death penalty will

not be imposed in an arbitrary and capricious manner, thereby

creating a death penalty scheme not unlike that condemned in

Furman v. Georgia, 408 U.S. 238 (1972).

The Oklahoma court has, at times, indicated that the

heinous-atrocious-cruel circumstance applies only when the

facts approached torture or mental suffering. Smith v. State,

659 P.2d 330 (Okl.Cr. 1983), reversed on other grounds _

U.S. __» 104 &.Ct. 324 (1983) (victim beaten into helplessness

and put in the back of a pickup truck. Died of smoke

inhalation after co-defendant set truck on fire). Ake v. State,

663 P.24 1 (Ok1.Cr. 1983) U.s. + cert. granted,

-9-

a 4 = ee te on be oo erro mtn ot tues

(1984) (bound victims, discussed killing family, and ignored

plea for mercy before shooting victims). Odum v. State, 651

P.2d 703 (Okl.Cr. 1982) (when victim shot once in neck and died

within ten minutes of asphyxiation there was no evidence «f any

physical or mental suffering whatsoever and the manner of

killing cannot said to lie at the ‘core’ of the statutory

aggravating circumstance)".

However other cases from Oklahoma display a pattern of such

broad interpretation of this particular aggravating

circumstance that the infliction of the death penalty based on

the heinous-atrocious-cruel circumstance is arbitrary and

capricious. In Hays v. State, 617 P.2d 223 (Okl.Cr. 1980), the

defendant shot a person twice and the Oklahoma Court of

Criminal Appeals, without eluding to any great suffering or

unusually pitiless action, determined that the circumstance

supported the finding of the heinous-atrocious-cruel

aggravating circumstance. See also Irvin v. State, 617 P.2d

588, 598 (Okl.Cr. 1980) (unnecessary to prove the homicide was

pitiless or tortuous to the victim.) In Eddings v. State, 616

P.2d 1159, 1168 (Okl.Cr. 1981), rev. on other grounds 455 U.S.

104 (1982), noted above, the Oklahoma Court appeared to rely on

the fact the victim of the gunshot blast was a police officer

in its determination that the evidence supported the

heinous-atrocious-cruel circumstance. In Boutwell v. State,

659 P.2d 322 (Okl.Cr. 1983), the Oklahoma Court said that the

heinous-atrocious-cruel aggravating circumstance was supported

because the robbers planned in advance to murder the victin,

and because the defendant and the victim knew one another. In

Burrows v. State, 640 P.2d 533, 543 (Okl.Cr. 1982), the

Oklahoma Court found support for the heinous-atrocious-cruel

aggravating circumstance because the pregnant woman was shot

four times, did not linger for a long time, but had time to

-10-

~~ ee ee ee < —— oe Rem e ayee ere «ee . {.

know that the life she carried also would die. In Davis v.

State, 665 P.2d 1186 (Ok1.Cr. 1983, the support for this

fe circumstance was that it was a mass murder (two

killed) involving multiple gunshot wounds to the victim. And

finally, in Stafford v. State, 669 P.2d 285, 299 (Okl.Cr.

1983), the court reasoned that the “unprovoked murders

committed upon a family wh” had taken time as they made their

way to the funeral of a loved to stop and help a fellow

citizen" supported this aggravating circumstance.

Although the shooting of a person is a detestable act,

there is nothing about shooting which makes a murder so unusual

as to be atrocious as compared with other homicides. The

aggravating circumstance being discussed here, and the death

penalty in general, should be reserved only for those types of

homcide which are significantly more outrageous than others.

See e.g., Godfrey v. Georgia, supra. Appellant respectfully

contends that the heinous-atrocious-cruel circumstance is being

arbitrarily appiied here and in other Oklahoma casess, see

Furman v. Georgia, supra, and this Court should grant

certiorari to resolve this issue.

—_ < — ~ o- oe - Se re ee re ee ae ee eee ee ee

The use of this aggravating circumstance, where each of the

victims were killed by the distinct act of shooting each victim

individually at short range, shows Oklahoma's interpretation of

this aggravating circumstance lacks particularized guidance to

insure controlled and reasoned jury discretion. Proffitt,

supra; Jurek v. Texas, 429 U.S. 262 (1976); Gregg v. Georgia,

supra.

Initially, it is necessary to note that other states with

the same or similar aggravating circumstance have used it in a

narrowly channeled sense. Georgia has a similar aggravating

circumstance: knowingly creating "a risk of death to more than

one person in a public place by means of a weapon or device

which would normally be hazardous to more than one person."

Georgia Code §27-2534.1(b) (5) (1977). Although the above phrase

is more specific and precise than Oklahoma's, it was challenged

in Gregg v. Georgia, supra, as being vague, overbroad, and

subject to widely different interpretations, thereby creating a

substantial risk that the death penalty would be arbitrarily

imposed by the jury. This Court in Gregg, admitted the phrase

was “susceptible of an overbroad interpretation." However, the

court stopped short of striking the circumstance because it

approved with the construction given if in Chenault v. State,

234 Ga. 216, 215 S.E.2d 223 (1975). Chenault involved a

defendant who stood up during Sunday morning church service and

shot and killed the organist and another person, before

randomly opening fire on the entire congregation. However, the

Georgia Supreme Court later interpreted this aggravating

circumstance to apply where several persons are present and the

defendant uses the weapon, which by its nature threatens the

lives of others than the

intended vicitm. See Jones v. State, 234 Ga. 820, 256 S.E.2d

907 (1974).

The state of Louisiana has an almost identical aggravating

circumstance involving the “risk of death or great bodily harm

to more than one person". La. Code Crim. Proc. Anot. art.

905.4(d) (West Supp. 1978).

In the case of State v. English, 367 &.2d 815 (La. 1978),

this aggravating circumstance was one of four found by the

jury. The Louisiana Supreme Court found that the “risk of

death" circumstance did not apply to facts where the defendant

intended to commit each murder by a distinct act of shooting

each victim individually at short range. In English, the

defendant had abducted the victim and the victim's companions.

The Louisiana Supreme Court recognized the legislative intent

might have contemplated acts which kill and create the risk at

the same time, such as arson or firing into a crowd. The

broadest construction considered was where a single course of

conduct “contemplates and causes" the knowing creation of a

great risk of death, such as the abduction here. Id. at 823-24.

The English case indicated it was doubtful the aggravating

circumstance was proven in that case and clearly indicated that

the risk must be contemplated and created at the outset of a

"single course of conduct", such as the abduction or the random

firing into a crowd, and does not exist at the time of a

distinct, individual close-range shooting. Therefore, even the

broadest construction contemplated in English is

distinquishable from a case where there are separate, distinct

shootings.

In the recent case of Francois v. State, 407 &.2d 885, 891

(Fla. 1982), the Plorida Supreme Court refused to find the

circumstance existed where defendant entered a victim's house

-_- - ~s ee en

to rob him and, in the course of the episode, killed the victim

and five of his house guests who arrived in the interim. The

court called the trial judge's conclusicn that the others who

approached the house would have been endangered “pure

speculation", citing White v. State, 403 &.2d 331 (Fla. App.

1981). Id. at 891. In Lucas v. State, 376 &.2d 1149, 1153

(Fla. 1979), the court found the circumstance to exist because

the defendant engaged in a "raging gun battle" to kill the

victim with two others present.

Oklahoma, on the other hand, has again shown its desire to

apply an aggravating circumstance in a broad and inconsistent

pattern. Oklahoma has held that a person dees not create a

risk of death to one he holds in ..1s arms while he is shooting

at a third person, according to one ot three separate opinions

in an Oklahoma death penalty case. Burrows v. State, 640 P.2d

553 (Okl.Cr. 1982) (Cornish, J. concurring in part and

dissenting in part). Although Judge Cornish's decision that

the evicence did not support the aggravating circumstance was

not explained in detail, the inference was that a risk of death

cannot be created to a person who is not in the line of fire.

The Oklahoma decision that comes closest to being factually

within the plain meaning of §701.12(2) is Jones v. State, 648

P.2d 1251, 1259-60 (Ok1.Cr. 1982). There the defendant

irrationally and for no apparent reason opened fire on several

people in the same area of a public bar.

However, other cases have not been so clear and finding of

this circumstance has been questioned by commentators. E.g.,

Hays v. State, 617 P.2d 223, 231-32 (Okl.Cr. 1980) and Note,

Criminal Procedure: Creating Great Risk of Death to More than

Aggravating Circumstance, 34 Okl. L. Rev.

One Person as an

325,335-336 (1981). In Hays, the court found this circumstance

eee

where there was only one victim. Apparently, the court felt

that Hays’ subsequent pointing of a weapon at a carload of

teenagers, at a time removed from the killing, supported the

jury finding of this circumstance, although the Court of

Criminal Appeals gave no rationale for its decision. In Chaney

v. State, 612 P.2d 269 (Ok1.Cr. 1980), sentence vacated on

other grounds, _F.2d __—ss« (10th Cir. 1984), the Court found,

without more, that the defendant created a great risk of death

to more than one person in that “he did in fact kill without

authority of law two persons..." Id. at 282 n. 1. The

implication here is the fact that more than one person died

meets this aggravating circumstance.

This implication is now, apparently, the law in Oklahoma.

In Stafford v. State, supra, the court found this aggravating

circumstance. The court noted:

"Immediately after having shot Melvin

Lorenz, the appellant open fired on

Linda, and then stalked his third victim,

young Richard Lorenz, as he crying in the

darkness {for his mother and father].

These facts amply support the aggravating

circumstance that the appellant created a

risk of death to more than one person."

And, in the instant case, the court found:

"It is apparent from the facts of the

case that the three murders created a

risk of death to more than one person as

the three victims resided in the same

house and were all present when the

appellant and his two co-defendants

appeared to rob them. The jury's finding

in this regard is adequately supported."

Robison v. State, Slip Op. p. 10.

Of course, this interpretation totally ignores the word

"risk". Every victim faces an overwhelming risk of death

immediately prior to death. If the risk of death is created at

the moment a homicidal impulse arises, where is the line to be

drawn to include those who are endangered by the risk? Must

the risk be created with the same fatal act? Does it include

only people in the line of fire, the same room or area, or

house, or even the same neighborhood? Risk has been defined as

"the possibility of suffering harm or loss; danger...a factor,

element or course involving uncertain danger, hazzard. The

American Heritage Dictionary of the English Language, 1121

(1965). Because Oklahoma has interpreted this aggravating

circumstance in a broad and inconsistent manner in this and

other cases, a writ of certiorari should issue to vacate the

death sentence.

II. IMPOSITION OF THE DEATH PENALTY AGAINST

PETITIONER IS IMPERMISSIBLE UNDER THE

FIFTH AND FOURTEENTH AMENDMENTS TO UNITED

STATES CONSTITUTION BECAUSE IT INVOLVES

MULTIPLE PUNISHMENTS BASED ON ONE SET OF

FACTS.

Although three people died as a result of the episode which

is the subject of petitioner's convictions, the evidence does

not constitutionally support the aggravating circumstance of

creating a great risk of death to more than one person. It was

impermissible to use the fact that Averil Bourque and Shelia

Lovejoy died to justify a death penalty for the killing of

Robert Swinford, when, at the same time, the prosecution used

fact that Ms. Lovejoy and Mr. Swinford died to justify a death

penalty for the killing of Ms. Bourque. This cross-utilization

of the fact of three deaths is contrary to the double jeopardy

principles set forth in the Fifth Amendment to the United

States Constitution made applicable to the states through the

Fourteenth Amendment.

Federal constitutional double jeopardy principles do not

permit either multiple convictions or multiple punishments

based on one set of facts. Whalen v. United States, 445 U.S.

685 (1980); Harris v. Oklahoma, 433 U.S. 682 (1977). It is

clear that a great risk of death to more than one person did

not occur three times in petitioner's case. Yet the

aggravating circumstance of creating a risk of death to more

than one person has been found to exist three times in the

instant case. Thus petitioner has been convicted and punished

three times for the same conduct.

One of three separate opinions in Burrows v. State, supra,

notes that a person cannot create a risk of death to a person

whom he holds in his arms while shooting a third person. As

noted above, Judge Cornish's decision that the evidence did not

support the aggravating circumstance was not explained in

detail, although it is apparent from the context that the

determination was made that a risk of death could not be

created to a person who was not in the line of fire. Of

course, in petitioner's case, the evidence did not support a

conclusion that any of the three victims were in the line of

fire when the other were shot.

Thus under the Fifth and Fourteenth Amendments to the

United States Constitution, the death pensity of petitioner was

improper, and this Court should grant certiorari to consider

this issue.

CONCLUSION

For the foregoing reasons, the petition for Writ of

Certiorari should be granted.

Dated: oO nee 2 \2.\8384.

Respectfully submitted,

aR ee

Oyler & Bane

Investors Capital Building

Oklahoma City, OK 73102

(405) 232-4601

COUNSEL OF RECORD

(Petition for Writ of Certiorari

Only)

———— oe - - - ° eos een eee hee

APPENDIX A

Opinion of the Court of Criminal Appeals

‘o .

. : n cout ot SEO.

JAN 1

IN THE COURT OF CRIMINAL APPEALS OF THE or Res,

: Ross N. Lillard Jr

OLAN RANDLE ROBISON, CLERK

FOR PUBLICATION

Case No. P-81-388

Appellant,

THE STATE OF OKLAHOMA,

Se wae OTS a ar er

Appellee.

OPINION

BRETT, : Judge:

Olan Randle Robison, wecliaih, was convic

counts of Murder in the First Degree in Stephens County District

Court Case No. CRF-80-165. In accordance with 21 0.8.Supp. 1976,

§ 701.11, the jury fixed punishment at death by lethal injection,

in all three counts.

- - . Appellant was convicted for the deaths of Julie Sheila

and -Robert Leon Swinford,

Lovejoy, Averil Bourque, all of whom

shared a house on the outskirts of Velma, Oklahoma. A robbery

apparently precipitated their deaths, which was evidenced by the

disheveled state of their home when their bodies were discovered

1980. The victims died from wounds

inflicted by a .22 caliber pistol and a .360 caliber pistol.

the morning of June 12,

The state presented a number of witnesses at trial who

implicated appellant and two other men, Johnny Gillum and William

in the murders. Sharon

Starr Jordan, One of the witnesses,

Briscoe, was appeklant's girlfriend aad it was her apartment in

Healdton, Oklahoma, where several persons, including appellant, had

gathered on June ll, 1980, to discuss a future amphetamine

_ Throughout the day appellant censumed drugs and

alcohol until he finally passed out in the early evening, but not

until after he had called Johnny Gillum in Wichita Falls, Texas,

requesting that Gillum come to Healdton because he was needed.

When Gillum arrived and successfully awakened appellant, the two of

them and William Starr Jordan took several guns from the apartment

and -loaded them in Sharon Briscoe's car. Appellant stated that he

was going to “get some gold® or E “get cich® end the these aun SeRt;. |

laboratory.

Sth -_

after returning sometime before 11:00 p.m. with a

suitcase and an empty brown purse, appellant gave one of the women

in the apartment a lady's watch, a man's watch, and a pocket knife.

He then had her clean his boot, which contained a spot that Séimed

like blood. Appellant also removed his blood-stained shirt. Upon

appellant's orders, everyone packed and left that night for Wichita

Falls, Texas.

Patricia Brumfield was with appellant and Johnny Giliun -

later that night when they travelled to Lake Arrowhead where

suitcases and & gun were tossed into the water. the gun, a .380

caliber pistol was later recovered. At trial, Ms. Brumfield

testified that appellant told her of shooting the people in Velma;

that one of the women was naked and had a gun. He also told her

that they did not find the gold they had gone after. Appellant

requested that Ms. Brumfield retrieve a .22 pistol from William

Jordan, but she discovered that Jordan had disposed of it.

- - . wo other witnesses for the State also testified of being

told by appellant that he had participated in murdering three

people during a robbery.

_When the crime scene was processed, jewelry was

discovered in a purse beneath Averil Bourque's body on her bed. A

jeweler estimated the value to be between $6,000 and $8,006. It

was revealed at trial that appellent was aware that Ms. Bourque

possessed valuable jewelry. Among possessions discoverec missing

from the house following the murders was Robert Swinford's watch,

‘cnt a -22 caliber pistol.

*e ; i

3 Appellant initially contends that the trial court erred

in denying Lis motion for change of venue. He attempted to support

this contention prior to trial through the affidavits of three

recidents in Stephens County who verified that appellant could not

receive a fair trial in that County because of the extensive

pretrial news coverage of the triple slayings which prejudiced the

citizens of that county against appellant and thereby rendered it

impossible to empanel a jury which did not have a fized opinion

concerning his guilt. -~ “=

=. sige

The applicable rule to this issue is stated in Hammons v.

State, 560 P.24 1024 (Ok1.Cr.1977), as follows:

When considering a motion for «a change of

venue, the presumption of law is that a

defendant can get a fair and impartial trial in

the county in which the offense charged was

committed. The presumption is rebutable, but

the burden of persuasion is upon the defendant.

Fry v. State, 91 Okl.Cr. 326, 218 P.2d 643

50). “A mere showing that pretrial publicity

was adverse to the defendant is not enough.

Shapard v. State, Okl.Cr., 437 P.2d 565 (1967).

endant must show by clear and convincing

evidence that jurors were specifically exposed

to the publicity and that he was thereby

prejudiced. Tomlinson v. State, Okl.Cr., 554

P.2d 798 (1976). The granting of a change of

venue is a discretionary matter within the

‘powers of the trial court and unless it is

clear from the record that the trial court has

abused its discretion, or committed error in

judgment, this Court will not overrule the

trial court, especially where there has been an

extensive voir dire examination to determine

the prejudicial effect of the pretrial

publicity. Shapard v. State, supra.

While it is true that appellant sought to rebut the

presumption in favor of his receiving a fair and impartial trial in

Stephens County through the affidavits and testimony of the three

affiants, we are compelled to agree with the trial judge that he

4id not meet success. | 3

The newspaper accounts of the homicides do not appear to

be adverse to appellant, although they relate the fact that he was

. , Charged with the crimes and give some background information about

him. The jurors each truthfully conveyed that they had been

exposed to publicity concerning the crime through the news media,

but through voir dire it we- established that their prior knowledge

would not act to prejudice then. They each indicated they could

render a fair judgment on the evidence presented in court aside

from information they may have obtained outside of court. Thus, no

abuse of discretion was shown by the trial court's denial of change |

of venue. 3

II.

Appellant urges reversal of his conviction because of

comments made by the prosecutor that amounted to comments on

appellant's right to remain silent. The initial incident essigned

as error occurred during voir @ire when the prosecutor questioned «

prospective juror concerning the consideration be would give to

“Sage 8 ee. ae

*s (te tre fy

'

Gefendant’s bias, ANCerest, BNC CLEGIOLALLY SHOULS HS vestity. The

law in this area is that it is error for the prosecutor to comment

at any stage of the jury trial upon the defendant’s right to remain

silent. Hanf v. State, 560 P.24 207 (Okl.Cr.1977).

When a similar situation arose in Stover v. State, 617

P.2d 898 (Okl1.Cr.1980), this Court reversed the conviction. The

reversal was predicated on the prosecutor's comzents followed by

defense counsel's timely objection and motion for mistrial.

Defense counsel did not object to the comments in the present case,

which is mandatory for preservation of the error; thus, there is no

basis for review of this alleged error other ehen to review it for

fundamental error. Having found none, this allegation provides no

grounds for reversal.

Appellant also complains of statements made during

closing argument, which he alleges were comments on his failure to

take the stand in contravention of 22 0.S.1981, § 701. We have

read the.closing--argument and are of the opinion that the comments

were no more than reasonable comments on reasonable interpretations

of the evidence. See Cobbs v. State, 629 P.2d 358 (Ok1.Cr.1981).

Only when taken out of context, as appellant has done, do the

remarks appear to be emphasizing appellant's failure to testify.

Furthermore, no objections were entered when the remarks were made

and any error which could have occurred was waived.

. Itt.

Appellant's third argument urges reversal because of the

tainted in-court identification of appellant by Terry Henderson who

had undergone hypnosis prior to identifying him. Ms. Henderson had

been travelling past the murder victims’ home the night of the

murders when a car containing at least two occupants was backing

out of the driveway. After hearing of the murders, she contacted

the sheriff's office and gave a description of the car and one of

the occupants.

During the investigation of the murders, Ms. Henderson

underwent hypnosis. At trial appellant. sought to have her

testimony excluded, , but was unsuccessful. When the witness

in the car.

This Court has not deviated from the rule pronounced in

Jones v. State, 542 P.24 1316 (Okl1.Cr.1975), that statements made

in a hypnotic state are inadmissible “when offered for establishing

the truth of the statements." But the issue in the present case is

not resolved by that rule. The issue at hand is whether a witness

testified, she positively identified appellant as the man she saw |

may make an. in-court identification following hypnosis when no

identification had been made prior to the hypnosis. We think not.

Through our research, we have discovered that the Arizona

Supreme Court shares the saze view on hypnosis as we have come to

hold, The Arizona Court held inadmissible testimony given by a

witness who had been hypnotized with regard to the subject on which

he was to testify. Testimony by a witness who had been hypnotized

was held inadmissible from the time of hypnosis forward in State v.

Mena, 128 Ariz. 226, 624 P.2d 1274 (1981). The court reasoned:

4 - — Jt-is generally agreed that hypnosis is a state

of altered consciousness and heightened

- suggestibility in which the subject is prone to

experience distortions of reality, false

- memories, fantasies and confabulation (the

"filling in of memory gaps with false memories_

-Or inaccurate bits of information"). In the

context of pretrial interrogation under

hypnosis, these distortions, delusions and

. confabulations are apparently aggravated by

the.tendency of a subject to respond in a way

he believes is desirable to the hypnotist.

This may happen even without any intent or

awareness on the part of the hypnotist or the

: subject.

-- .In addition, a person may assimilate the

distortions, delusions and confabulations he

Gevelops under hypnosis as part of his own

memory. After the hypnotic session has ended,

the subject would then perceive those

hypnotically induced impressions to be

reflections of his actual past observations.

The determination of the guilt or innocence of

an accused should not depend on the unki.own

consequences of a procedure concededly used

for the purpose of changing in some way a

witness’ memory. Therefore, until hypnosis

gains general acceptance in the fields of

medicine and psychiatry as a method by which

memories are accurately improved without undue

Ganger of distortion, delusion or fantasy, we

feel that testimony of witnesses which has been

tainted by hypnosis should be excluded in

criminal cases. .

3

-

J

:

~ »

We realize that it will often be difficult to

determine whether proffered testimony has been

produced by hypnosis or has come from the

witness’ own memory, unaffected by hypnotic

suggestion. In order to ensure against the

dangers of hypnosis, therefore, this Court

will consider testimony from witnesses who

have been questioned under hypnosis regarding

the subject of their offered testimony to be

inadmissible in criminal trials from the time

of the hypnotic session forward.

We adopt the holding of the Arizona court in the case at

hand with regard to the subject matter of Ms. Henderson's testimony

from the point of hypnosis forward, which includes her in court

identification of appellant. The identification was inadmissible

and the trial court erred in permitting it to be made.

Nevertheless, this error is not grave enough to predicate reversal

of the conviction. The evidence apart from Ms. Henderson's

identification is far too overwhelming for us to conclude that her

identification determined the verdict.

Pie, ak, Colas ee y Iv.

--

a

"Appellant argues in his Fourth assignment of error that

evidence regarding appellant's character and prior offenses was

improperly admitted at trial and resulted in prejudice to hin. The

alleged improper evidence was introduced through the testimony of

Sharon Briscoe, a witness for the State, who in one instance

remarked that appellant was one of several people gathered at her

apartment the day of the murders to plan the erection of an

amphetamine laboratory. Although not objected to, and therefore

* not preserved for appellate review, we nevertheless find that the

-witness' explanation was relevant and therefore properly

admissible. Relevant evidence is evidence that has any tendency to

make more or less probable a material fact in issue. President v.

State, 602 P.2d 222 (Okl.Cr.1979).

Testimony given at trial revealed that money was needed

to set up the amphetamine laboratory, and the apparent motive

behind the murders was robbery. We find that the evidence of the

amphetamine laboratory was explanatory of the motive for the

commission of the murders. The fact that the evidence of the lab

reflected in some part on appellants character is outweighed by the

pact actaaioatiials ti tacts ee a oe

probative value of disclosing the motive of robbery for committing

the murders. .

In another statement Ms. Briscoe explained that she slept

with appellant, and he complains that this was an improper comment

on his character. It has long been the rule that the State may not

attack the defendant's character unless the defendant puts his

character in issue by introducing evidence of good character.

Doser v. State, 88 Okl.Cr. 299, 203 P.2d 451 (1949). Although

there are certain times where such a remark would be improper, we

do not think Ms. Briscoe's comment in the context in which it was

made can be construed as an attack on appellant's character.

During Ms. Briscoe's testimony, it also surfaced that

appellant had a prior record, was on probation for an unspecified

offense, and at the time of the murders had an upcoming court

appearance. Appellant's trial counsel diligently objected to such

testimony when it was offered, the objections were sustained, and

the jury was admonished not to consider it. .

_We note that the _remarks were not elicited by the

prosecutor. Moreover, even though they were improper, as they

could be construed as offered to prove the character of- appeliant

in eter to show he acted in conformity therewith,.we do not

believe that the evidence in any way affected the verdict. In the

instant case, the court's admonishment to the jury cured any error.

Kitchen v. State, 513 P.2d 1300 (Okl.Cr.1973).

Vv.

Appellant filed a motion for new trial based on newly

_ discovered evidence which he claims was erroneously overruled by

the trial court. Whether or not a motion for new trial based on

newly discovered evidence is granted is largely within the

discretion of the trial judge. Garcia v. State, 545 P.2d 1295

(Okl.cr:1976). | Marlow v. City of ‘Tulsa, 564 P.2d 243

(Ok1.Cr.1977), enunciates the following guidelines for determining

whether a trial court abused its discretion in overruling a motion

for new trial: 1) Is the evidence material? 2) Did the accused

or his counsel mo due diligence to discover the evidence

before the trial? 3) Is it cumulative? 4) Is there a reasonable

probability that. if the meee discovered evidence had been

a ss a ie pee

's a < oa gir ad eh, pice set ae

- introduced at the trial it would have changed the results. 14., at

” 245.

In the present case, appellant secured an affidavit from

codefendant, Johnny Gillum. Gillum stated that appellant was aleep

in the backseat of Sharon Briscoe's car when the murders occurred

and had no knowledge of them until the crimes had been carried out.

He further stated that the man seen and identified by Terry

Renderson was not appellant, but William Starr Jordan.

Gillum's trial was held several days after appellant's;

he was found guilty, and sentenced to life imprisonment. Appellant

argues that had Gillum been called to testify in appellant's trial

prior to his own, he would have refused to incriminate himself

through his testimony.

It is our opinion that the trial court did not err when

it overruled the motion for new trial. The facts of this case

indicating appellant's guilt are so strong that there is no

reasonable -probability that the jury's verdict would change if the

new evidence were introduced. Testimony from at least five

witnesses implicated appellant in the murders through conversations

they had_with him or overheard, and observations they made both

before and after the murders occurred. Under these circumstances

we find no abuse of discretion on the part of the trial court in

overruling appellant's motion for new trial.

VI.

Appellant submits that the prosecutor went beyond the

| scope of guidunen _Guring closing arguments in both stages of the

trial to arouse passions and prejudices of the jurors and also

expressed his personal opinion of appellant's guilt. Our review of

the closing arguments reveals that the appellant's claims are for

the most part unfounded. Prosecutors are entitled to make

reasonable comments on the interpretations of the evidence See

Cobbs v. State, 629 P.2d 368 (Okl.Cr.1981). When the prosecutor

stated that he represented the victims, the one instance where we

agree that the prosecutor deviated from the above-stated rule, the .

defense counsel failpd to object. Had he objected our conclusion

would be no ‘different, however, as the commert meee: was improper

but could not have ateeowns the. verdict. Accordingly, appellant

*°, . 2

@.4 . me 40 “se ee ta Ps Se ES es eee »

.° was not denied a fair and impartial trial by the remarks of the

prosecutor and reversal or mcdification is not justified.

VII.

Pive cof the photographs of the victims introduced by the

State at trial are claimed by appellant to be gruesome and admitted

into evidence solely to arovse the passions and prejudice of the

jury. The photographs depict the victims as they were found at the ;

crime scene and the facial view >f one victim at the autopsy. The

general rule as to admissibility of photographs is that they are

admissible when they are relevant to issues before the court and

when their probative value is not outweighed by danger of prejudice

to the accused. Vierrether v. State, 583 P.2d 1112 (Okl1.Cr.1978).

The probative value of photographs of murder victims can

be manifested numerous ways including showing the nature, extent,

and location of wounds, Glidewell v. State, 626 P.2d 1351

(Ok1.Cr.1981), depicting the crime scene, Deason v. State, 576 P.2d

778 (Okl.Cr.1978); and corroborating the medical examiner's

testimony. Bills v. State, 585 P.2d 1366 (Okl.Cr.1978). The

probative value of the photographs in the instant case is derived

from each of the elements of the cited cases. Thus, the

photographs possess probative value, which is not outweighed by

prejudice to appellant.

VIItI.

One of the State's photographic exhibits depicted an

0.S.B.I. agent holding a string stretched to a hole in the wall in

order to illustrate the trajectory of a bullet in relation to the

_. .@ead body of Averil Bourque. Appellant claims that such a posed

photograph was inadmissible at trial under the rule that posed

photographs showing various assumed positions intended only to

illustrate a hypothetical situation are inadmissible as evidence.

The rationale of the rule forbidding admission of such photographs

is to guard against “stage setting” for the purpose of re-enacting

the crime as the State theorizes it happened. Roberts v. State, 82

Okl.Cr. 75, 166 P.2d 111 (1946). i

- eS Although it is our opinion that the photograph should not

. have been admitted into evidence because its purpose was no more

than to show the State's theory of what happened in aAveril

Bourque's bedroom the night of the murder, we do not find the

photograph to be nearly as offensive as the one admitted in

Roberts. There being no apparent prejudicial effect that could

have arisen from admission of the photograph into evidence, we find

no basis on which to grant relief. :

Ix.

~~

Title 21 0.8.1981, § 701.13(C) requires this Court to

make ‘three Geterminations in addition to consideration of

appellant's assigned errors. ‘The first determination is whether

the death penalty was imposed under the influence of passion,

prejudice, or any other arbitrary factor. We have carefully

reviewed the transcript in this regard and find it devoid of

prejudices or bias. And, while it is true that the victims resided

in a small community where there may be strong feeling concerning a

crime such as this, we are confident that the penalty imposed was

not influenced by passion, prejudice, or any other arbitrary

factor.

Second, a determination must he made on whether the

evidence supports the jury's findings of statutory aggravating

circumstances. The following aggravating circumstances were found

by the jury: (1) the defendant knowingly created a great risk of

death to more than one person; (2) the defendant had previously

been convicted of a felony involving the use or threat of violence

.to the person; anti (3) the existence of a probability that the

Gefendant would commit criminal acts of violence that would

consitute a continuing threat to society. Additionally, a fourth

aggravating circumstance, me murder was heinous, atrocious, or

cruel, was found to exist in the case of Averil Bourque.

It is apparent from the facts of the case that the three

murders created a risk of death to more than one person as the three

victims resided in the same house and were all present when

appellant and his two codefendants arrived to ih them. The jury's

‘finding in this regard is adequately supported.

—eeeererereRR_aaaawewers$sXee—=eEOO~ EEE

- modified the death sentence to life

a certified judgment and sentence of appellant's 1973 conviction

for armed robbery. This particular conviction supports the jury's

finding that appellant had previously been convicted of a felony

involving the use or threat of violence to the person.

Furthermore, the calloused manner in which the crimes were

committed supports the finding that there is a probability that

appellant would commit future acts of violence which would be a

continuing threat to society. hats Jal ee

, Averil Bourque's death was the result of multiple gunshot

wounds. She was shot once in the left breast, once in the right

ear, and twice between the eyes. The wounds in the ear and between

the eyes were at close range as evidenced by powder burns

surrounding the wounds. A death occurring at close range by two

gunshots between the eyes amply supports a finding that the death

occurred in a heinous, atrocious or cruel manner.

ss ~ Finally, after considering whether the sentence of death

is excessive or—disproportionate to the penalty imposed in similar

cases, which its the third determination that this Court must make,

we conclude that it is not. The death penalty was ‘upheld in

Stafford v. State, 669 P.2d 285 (Okl.Cr.1983), Stafford v. state,

665 P.24 1205 (Okl.Cr.1983), and Hays v. State, 617 P.2d 223

(Ok1.Cr.1980), which are all cases where the victims of robberies

weré shot and killed as occurred in the instant case. Furthermore, .

_ £She factors which existed in the cases where this Court has either

1 2

or reversed the conviction

are not present in the case- at hand. Thus, we find that the .

assessed death penalty is neither excessive nor disproportionate.

For the reasons hereinstated, the judgment and sentence

appealed from should be, and the same is hereby, AFFIRMED.

1 ‘

Jones v. State, 660 P.2d 634 (Ok1.Cr.1983); Bap sae Vv.

State, 659 P.2d 343 (Ok1.Cr.1983); Boutwell v. State PRP. 322

TORI Cr .1983); Munn v. State, 658 B.2d doo (OkI-@r 21983); Odum v.

State, 651 P.2d 703. (Ok1.Cr.1983); Burrows v. State, 640 P.d 533

TOkI.Cr.1982); Franks v. State, 636 P.2d 361 (Ok1.Cr.1981); Irwin

v. State, 617 P. 2d 568 (Ok1.Cr.1980)

2coleman v. State, 670 P.24 596 (Okl.Cr.1983); Hall v.

State, 650 P.2d 693 (Okl.Cr.1982); Brewer v. State, 650 B.zd 54

TORI.cr.1982); Hager v. State, 612 P/Zd 1369 (OkI.Cr.1980).

During the second stage of the trial, the State admitted |

¢@ «+ <A APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY,

‘THE HOWORABLE GEORGE W. LINDLEY, DISTRICT JUDGE

OLAN RANDLE ROBISON, appellant, was convicted of eheee counts of

Murder in the First Degree, in Stephens County District Court, Case

No. CRF-80-165. He was sentenced to death and appeals. AFFIRMED.

Attorney for Appellant

JAN ERIC CARTWRIGHT

ATTORNEY GENERAL OP OKLAHOMA

SUSAN TALBOT

ASSISTANT ATTORNEY GENERAL

OKLAHOMA CITY, OKLAHOMA

Attorneys for Appellee

OPINION BY BRETT, J.,

BUSSEY, P.J., SPECIALLY CONCURS

CORNISH, J., CONCURS

BUSSEY, PRESIDING JUDGE, SPECIALLY CONCURRING:

I agree that the judgment and sentence should be affirmed

and that the record is free from any error which would justify

reversal or modification. The aggravating circumstances amply

support the imposition of the death penalty. I do not, however,

agree that the in-court identification of the defendant by witness

Henderson was so tainted, as to render it inadmissible for I am of

the opinion that the identification was based on her observations

of the defendant at the crime scene. In this regard her testimony

was merely cumulative of that established by other evidence.

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

eases oian isin ae } 2 FTRLICATION

-vs- ) Casé Ho, F-41-388

THE SYATE OF OKLAHOMA, ) P i

Appellee. 2 APR 2 jeu

.

. NOW, on this Qe day of April, 1984, this Court finds

that an error appears in the Opinion in the above styled and

numbered case delivered by this Court on the 13th day of January,

1984. :

IT IS THEREFORE THE ORDER OF THIS COURT, that pages 5 and

6 of the existing opinion be removed and the attached pages 5 and 6

be inserted. _ ; ”

IT IS SO ORDERED.- _. -

_ WITNESS OUR HANDS AND THE SEAL OF THIS COURT, this the

FeLt4 day of April, 1984.

APPENDIX B

Order Extending Time Within Which To File

Petition for Writ of Certiorari

Supreme Court of the Aunited States

No. A-717

OLAN RANDLE ROBISON,

7

Petitioner,

OKLAHOMA

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

=~ =

Upon Consiperation of the application of counsel for petitioner{,),

It Is Onparzp that the time for filing a petition for writ of certiorari in

the above-entitled cause be, and the same is hereby, extended to and including

Apirl 12 19.84

—_/s8/ Byron R. White

ee Te

Dated this _th

day of___March 19.84.

Cee" 638-6589

CASE NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983 Supreme Court, US

‘ OLAN RANDLE ROBISON, Petitioner

ORIG:NAL ! fran. Ss, Ct

be v. ;

THE STATE OF OKLAHOMA, Respondent.

ON WRIT OF CERTIORARI 10 THE OKLAHOMA COURT OF

CRIMINAL APPEALS

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The Petitioner, OLAN RANDLE ROBISON, moves that the Court

grant leave for him to proceed in forma pauperis. As grounds

for this Motion, the Petitioner would state that he is

currently confined in a penal institution and is unable to pay

the fees and costs associated with seeking review of this

Court. The factual grounds for this Motion are further

detaii.<? in the Affidavit of the Petitioner filed herewith.

For the reasons stated, the Petitioner requests that this

Motion be granted.

Respectfully submitted,

a

Oyler & Bane

217 S. Harvey

Investors Capitol Bldg.

—r City, Oklahoma 73102

(405)

COUNSEL FOR PETITIONER

IN THE SUPREME COURT OF THE UNITED STATES

OLAN RANDLE ROBISON, )

Petitioner,

‘

STATE OF OKLAHOMA,

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS

I, OLAN RANDLE ROBISON, being first duly sworn, state that

I am Petitioner in the above entitled case; that in support of

my motion to proceed without being required to pay fees, costs,

or give security therefore, I state that because of my poverty

I am unable to pay the costs of said proceeding or to give

security therefor; that I believe I am entitled to redress.

I was previously granted leave to proceed without OnORs, on

grounds of poverty, during proceedings on this case in the

Oklahoma Court of Criminal Appeals.

I further swear that the responses which I have made to the

questions below relating to my ability to pay the cost of

prosecuting the appeal are true:

l. Are you presently employed?

Answer: No, I am presently in the

custody of the Oklahoma Department of

Corrections, serving the sentence for

which I am petitioning the Court for

review. I have been imprisoned

since /9f/ °

2. Have you received within the past

twelve months any income from a business,

profession or other form of

self-employment, or in the form of rent

payments, interest dividends, or other

sources?

Answer: No.

3. Do you own any cash or checking or

savings account?

Answer: Yes, my institutional account

currently contains $ le 2. °

4. Do you own any real estate, stocks,

bonds, notes, automobiles or other

valuable property (excluding ordinary

household furnishings and clothing)?

Answer: No.

5. List the persons who are dependent

upon you for support and state your

relationship to these persons.

Answer: None.

I understand that a false statement or answer to any

questions in this Affidavit will subject me to penalties for

perjury.

STATE OF OKLAHOMA )

) SS:

COUNTY OF PITTSBURG )

of ody , 1984.

Subscrjbed and sworn to before me on this “2 day

Notary REKE tent

x

My Commission Expires:

96-2 7°

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