Opposition Brief — Maynard v. Cartwright

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NO. 87-519 PREM EP uz

IN THE SUPREME COUPT OF THE UNITED S/ATES

OCTOBER TERM, 1987

GAFY MAYNARD, et @l.,

Petitioners,

vé.

WILLIAM THOMAS CARTWRIGHT

Fespondent.

MOTION POR LEAVE TO PROCEED JN PORMA PALPERIS

Respondent, Willian Thomes Cartwricht, moves fcr .eave *

proceed in this Court jp fornia paupers&s pursuant to Fue 46 of

the Rules of this Court.

Respondent is incarceratec in the Oxianhore State Ferntertie:

and is without funds with which to ¢é the COEtE bs ehas

proceeding. He sought anc was rante leave tc proceec is s6sc2

pauperis in the Urited Stetes Listrict .- 4 the Easterr

District of Oklahoma anc in the ite ‘ tc cf Agre

for the Tenth Circuit.

The undersignec attorney, wes aeppoirte E counsel £<

respondent by the Court of Appeals uncer the Critinal Justice Act

of 1964, as amended, and, pursuant to Fule 4€ cf the Rules

this Court, an affidavit in support of this motion is net

required.

sy Dana

MANDY WELCF

1660 Cros# Center [rive

-snr* ©

Norman, Oklahora 301s

(405) 325-3331

ATTORNEY FOR RESPONDENT

CERTIFICATE OF SERVICE

I, Mandy Welch, a member of the Bar of this Court, hereby

certify that on November Ba, 1987, a copy of the foregoing was

mailed by first-class, postage prepaid mail, to: SUPE SOUl oF oan

David Lee Jctober Tern 198

Assistant Attorney General

112 Capitol Building

Oklahoma City, Oklahoma 73105

ATTORNEY GENERAL Of}

_ ; — - Meee ae

WILLIAM THOMAS CARTWRIGHT

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION Tc

PETITION FOR WRIT OF CERTIORAR

THE UNITED STATES COURT OF AP

” TENT cCrTrecrrr

MANDY WELCH

Appellate Public

1660 Cross Center

Norman, Oklahoma 302

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TABLE OF AUTHORITIES

Cases Page

Barclay v. Florida, 463 U.S. 939 Tae £6¢¢n0eceeus 4,10,11,12,13

Booker v. Wainwright, 764 F.2d 1371 (220m CAPs BOOB) . occc cs G

Eddings v. State, 616 P.2d 1159 (Okla. Crim.

App. 1980), rev’d, Eddings v. Oklahoma,

Coe ae ee COD S40 ce Cu uAUeeueabewewsuneeédciecewnk 3

Evans v. Thigpen, 631 F.Supp. 274 (S.D. Miss. 1986),

aff’d, 809 F.2d 239 (Sth Cir. ME Te ee re eee 9

Francois v. Wainwright, 741 F.2d 1275 (220 Cir. 1964) ccs 9

Furman v. Georgia, 408 U.S. 238 ce we Stee hs aee bas ee we mae 4,5

Godfrey v. Georgia, 446 U.S. 420 CAPOe) «08s 6e ee 1,4,5,6,7,8,9,10

ie i | eee een $,7

Irvin v. State, 617 P.2d 588 (Okla. Crim. Ss GOSS) ceeckcs 3

Nuckols v. State, 690 P.2d 463 (Okla. Crim.

Se? eee S065 0 06nseencumnuleeweuudundueeséscécésecbus 3

Parks v. Brown, 823 F.2d 1405 See Seen) TD Seusbec’ kee ks 12

Proffitt v. Florida, 428 U.S. 242 Serre 6666600 666%e006% 3,9,6,7

State v. Dixon, 283 So.2d 1 (Fla. os | Be ae ee ea eee oe 3

Turner v. Bass, 753 F.2d 342 (4th Cir. 1985),

rev’d sub nom., Turner v. Murray,

a ee CO Oe I be Oe ob er 9

Welcome v. Biackburn, 793 F.2d 672 (Oe Cae. BBOG) ccvccccen 15

White v. Wainwright, 809 F.2d 1478 C220R CAP. BEST) ccccvces 93

Wilson v. Butler, 813 F.2d 664 (5th Cir. Been <énawnaceeees 15

Zant v. Stephens, 462 U.S. 862 SR Stebbaiendwesasesnee 4,10,12,13

Treatises

Rosen, e j in « va

j n j a -~ a d s

SEAMGOEG, 64 W.C.L. Rev. 941 (1966) ..ccccccccccccccccccccee 6

No. 87-519

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

GARY D. MAYNARD AND THE

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Petitioners,

WILLIAM THOMAS CARTWRIGHT,

Responde-.t.

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

This brief is submitted by respondent Cartwright in

Opposition to the petition ior a writ of certiorari filed by

petitioner State of Oklahoma.

COUNTER-STATEMEN] OF QUESTIONS PRESENTED

(1) Did the Oklahoma Court of Criminal Appeals violate the

Eighth and Fourteenth Amendments by upholding a death sentence

based upon the aggravating circumstance that the murder was

“especially heinous, atrocious, or cruel," where neither the jury

instructions nor the Court of Criminal Appeals defined or applied

that aggravating circumstance in such a manner as to avoid the

arbitrariness condemned in Godfrey _v. Georgia, 446 U.S. 420

(1980)?

(2) Can respondent’s death sentence stand under the Eighth

and Fourteenth Amendments where one of the two statutory

aggravating circumstances found by the jury is constitutionally

invalid and the sentence was imposed pursuant tc a statute that

required the jurors to balance the aggravating and mitigating

circumstances?

COUNTER-STATEMENT OF THE CASE

Respondent Cartwright was employed by Hugh and Charma Riddle

in their construction business in 1981 and 1982. T 381-82. Mr.

Cartwright injured his leg on the job. T 409. He was fired

after he and Mr. Riddle had a disagreement over the payment of

medical bills for treatment of his work-related injury. T 477-

78.

Several months after being fired, Mr. Cartwright went to the

Riddles’ home to discuss a settlement of his Claim for medical

benefits. T 482. Ms. Riddle unexpectedly discovered mr.

Cartwright in the hall with a shotgun belonging to her husband.

According to her testimony, she grabbed the gun, "pushed it aside

and it went off." T 391, 411. She fell and mr. Cartwright shot

her again. T 412. Mr. Cartwright then went into the living room

and shot Mr. Riddle. T 392. He died instantly. Thereafter, mr.

Cartwright and Ms. Riddle struggled and he stabbed her with a

knife.2 fT 394.

Mr. Cactwright voluntarily turned himself in to the

authorities two days after the crime. T 220. At that time, he

was emotiona.ly distraught, shaking, and had @ifficulty talking.

T 223, 224. 440. The evidence at trial indicated that he

suffered a 1:ss of memory regarding many of the events preceding

and following the offense. T 487-90.

The shooting of Mr. and Ms. Riddle was strikingly

inconsistent with Mr. Cartwright’s previous history. He had no

prior criminal record of any sort. T 468-71. Further, he had no

history of violent or assaultive behavior. According to the

testimony of relatives and previous employers, Mr. Cartwright had

always been a good and dependable employee, had not shown any

1 mr. Cartwright received a 75-year sentence for the attack

on Ms. Riddle.

tendency toward violence, and had usually avoided disputes. T

430-67. He had been a good friend and valued employee of the

Riadles. T 405, 475, 478. However, when Mr. Riddle fired him

over a disputed medical bill, he felt betrayed and apparently

suffered considerable emotional distress.

Prior to trial, the prosecutor filed a Bill of Particulars

alleging three aggravating circumstances under the Oklahoma

capital sentencing statute. Okla. Stat. Ann. tit. 21 §§ 701.12

(2), (4), (7) (West 1983): (1) Mr. Cartwright created a great

risk of danger to more than one person; (2) the murder was

“especially heinous, atrocious, or cruel"; and (3) there was a

probability that Cartwright would commit future crimes of

violence that would constitute a threat to society. The jury,

finding the first and second aggravating circumstances but not

the third, returned a death sentence. 2

The Oklahoma Court of Criminal Appeals -- which once rvled

in another case that the “especially heinous" circumstance must

be applied according to the narrowing instruction approved in

Proffitt v. Florida, 428 U.S. 242, 255-56 (1976)23 but which

thereafter abandoned such a requirement? -- applied no narrowing

2 The instructions which directed the jury’s consideration

of the “especially heinous" circumstance were the following:

As used in these Instructions, the term ‘heinous’ means

extremely wicked or shockingly evil; ‘atrocious’ means

outrageously wicked and vile; ‘cruel’ means pitiless,

or designed to inflict a high degree of pain, utter

indifference to, or enjoyment of, the sufferings of

others.

T 620.

3 In Proffitt, the court held that by limiting the

application of the heinous, atrocious, or cruel circumstance to

"*the conscienceless of pitiless crime which is unnecessarily

torturous to the victim,’" the state provided adequate guidance

to the sentencer. 428 U.S. at 255-56 (quoting State v. Dixon, 283

So.2d 1, 9 (Fla. 1973)). The Oklahoma court appeared to adopt

this limitation in j , 616 P.2d 1159, 1167-68

(Okla. Crim. App. 1980), rev’d on cther grounds sub non., Eddings

v. Oklahoma 455 U.S. 104 (1982).

4 See, e.g., Irvin v. State, 617 P.2d 588, 598-99 (Okla.

Crim. App. 1980) (not mandatory to include the “unnecessarily

torturous to the victim" language in instructions to jury);

, 690 P.2d 463, 471-73 (Okla. Crim. App.

1984) ("suffering of the victim is not the major factor we

consider regarding this aggravating circumstance") .

definition in Mr. Cartwright’s case. Rather, it found the

“especially heinous" circumstance had been established "in light

of the circumstances attendant to the murder," without specifying

any criterion, factor, or aspect of the "circumstances" that

explained or limited the application of this aggravating

circumstance. Cartwright v. State, 695 P.2d 548, 554-55 (Okla.

Crim. App.), cert. denied, 473 U.S. 911 (1985) (App. E. at 23-25).

The Tenth Circuit, in a unanimous en bane opinion, granted the

writ as to Mr. Cartwright’s sentence of death. Cartwright v.

Maynard, 822 F.2d 1477 (10th Cir. 1987) (App. A). It held that

the “especially heinous" standard had been applied in a vague and

overbroad manner in violation of Godfrey v. Georgia, 446 U.S. 420

(1980), and that Mr. Cartwright’s death sentence could not stand

where one of two aggravating circumstances found by his

sentencing jury was constitutionally invalid, since "(ajn

aggravating circumstance in Okla*oma plays e2 critical role in

guiding the discretion of the sentencer...." 822 F.2d at 1482.

REASONS FOR DENYING THE STATE’S

PETITION FOR WRIT OF CERTIORARI

There is no issue worthy of certicrari presented by this

case. The Tenth Circuit’s unanimous en bane opinion is clearly

correct. It faithfully follows the fundamental constitutional

principles established by this Court in Godfrey v. Georgia, 446

U.S. 420 (1980), Zant v. Stephens, 462 U.S. 862 (1983), and

Barciay v. Florida, 463 U.S. 939 (1983). Contrary to

petitioner’s main argument, there is no conflict among the

circuits.

THE GODFREY ISSUE

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

required “that where discretion is afforded a sentencing body on

a matter so grave as the determination of whether a human life

should be taken or spared, that discretion must be suitably

directed and limited so as to minimize- the risk of wholly

arbitrary and capricious action." Gregg v. Georgia, 428 U.S.

153, 189 (1976). Following Furman, Oklahoma and other states

adopted death penalty statutes setting forth various aggravating

circumstances to be considered by the sentencer. In Gregag v.

Georgia, supra, the Court held that a facially vague aggravating

circumstance was not necessarily unconstitutional becauge the

state courts could adopt narrowing constructions sufficient to

focus the jury’s attention on objective criteria that would avoid

arbitrary and capricious results. See also Proffitt v. Florida,

428 U.S. 242, 255-56 (1976).

In Godfrey v. Georgia, supra, the Court considered whether

Georgia had adopted a constitutionally narrowing construction of

its statutory "vileness" aggravating circumstance (i.e., whether

a murder is “outrageously or wantonly vile, horrible or inhuman

in that it involves torture, depravity of mind, or an aggravated

battery to the victim"). Godfrey, following a prolonged and

heated marital dispute, shot his wife and mother-in-law and

assaulted his young daughter. The wife and mother-in-law each

died instantly. In reversing Godfrey’s death sentence, the Court

pointed out that the Georgia Supreme Court had upheld it under

the vague and subjective "vileness" standard without requiring,

as previous cases had done, evidence of objective facts of

"torture, depravity of mind, or an aggravated battery to the

victim.’" 446 U.S. at 430-31. Thus, Georgia had failed to

provide a “principled way to Gistinguish [a] case, i. which the

death penalty [is] imposed, from the many in which -t is not."

446 U.S. at 433.

The Tenth Circuit correctly recognized that Godfrey controls

this case. The two case are factually indistinguishable in all

material respects. Here, as in Godfrey, the victim died

instantly from a gunshot wound. 5 Here, as in Godfrey, Oklahoma

5 Indeed the sequence cf events was not materially different

in either case, except that Godfrey killed two persons and Mr.

Cartwright killed one. Godfrey shot and killed one victim with a

shotgun, by shooting her through the window of her trailer. He

then entered the trailer and struck and injured his daughter with

the barrel of the shotgun. Thereafter, he pointed the gun at the

second homicide victim and shot her in the forehead, killing her

instantly.

had once interpreted its “especially heinous" factor as requiring

evidence of physical abuse or torture -- an objective standard

approved by this Court in Proffitt v. Florida, supra. But here,

as in Godfrey, the Oklahoma court abandoned any narrowing

construction of the vague Statutory phrase and sanctioned the

death sentence based on a subjective and open-ended consideration

that gave the sentencer unbridled discretion to find the

“especially heinous" circumstance on the basis of all the facts

in the case. As the Tenth Circuit explained in Mr. Cartwright’s

case,

The discretion otf a sentencer who can rely upon all of the

circumstances of a murder is as complete and as unbridled as

the discretion afforded the jury in Furman. No objective

standards limit that discretion.

822 F.2d at 1491.6

As the Tenth Circuit’s opinion makes manifest, Cartwright is

thus a straightforward application of Godfrey to a case arising

under Oklahoma’s capital sentencing statute. The Tenth Circuit’s

statement of the Godfrey requirements neither extends nor

reframes nor even Significantly elucidates the holding or the

plain implications of Godfrey. There simply is no constitutional

point or principle for which Cartwright could be cited that is

not already fully controlled by Godfrey.

Cartwright does, of course, add an analysis of Oklahoma law.

But Oklahoma law is a matter of no nstional consequence. Neither

Oklahoma law nor the application «f an unembroidered federal

constitutional principle to a peculiar body of Oklahoma caselaw

is an appropriate subject for this cCourt’s certiorari

jurisdiction. Indeed, the Court has long made it a practice to

defer to the judges of the federal circuit courts in their

reading of state law, since they are closer to it and more

6 As a leading commentator has noted, "The Oklahoma Court of

Criminal Appeals’ view of its state’s ‘especially heinous,

atrocious, or cruel’ aggravating circumstance has proven to be

remarkably inclusive.... [I]t has used whatever it finds

distasteful about a murder to affirm an especially heinous

finding." Ror on, S ~ i

Circumstance in Capita] Cases -- The Standardless Standard, 64

N.C.L. Rev. 941, 986 (1986).

familiar with the landscape of state court decisions than this

Court can possibly be.

Even as-:to state law, however, the Tenth Circuit has not

purported to write the last word. Rather, it has carefully

adhered to the limits of constitutional intrusion permitted--

indeed required -- by Godfrey. To dress the case up as worthy of

this Court’s plenary review, the State is forced to distort the

Tenth Circuit’s holdings in this respect. For example, the State

says that "(t)he opinion of the Tenth Circuit in Cartwright can

be read to imply that the aggravating circumstance "especially

heinous, atrocious, or cruel’ must be limited to those cases

where the victim suffered from physical abuse, and factors such

as the attitude of the killer cannot be considered...."

Petition, at 24. The Tenth Circuit does not say, and its opinion

cannot “be read to imply" anything of the sort. What it says--

as it must under Godfrey, Gregg, and Proffitt -- is that the

Oklahoma Court of Criminal Appeals is obliged to give some sort

of limiting construction to the “especially heinous" aggravating

circumstance, and that the limiting construction adopted by the

court must be adhered to in its review of sentencers’ findings of

the “especially heinous" circumstance. Further, the Tenth

Circuit says -- as Godfrey squarely holds -- that if a state

court decides tc confine the "especially heinous" circumstance to

cases involving torture or physical abuse, as it could properly

do under Proffitt, it cannot turn this limiting principle on and

off at random and approve a finding of the especially heinous

circumstance where physical abuse is lacking.

Compounding this distortion, the State says that the Tenth

Circuit held that “because the Oklahoma court cf Criminal

Appeals, in reviewing cases in which [the especially heinous

circumstance) ... ha({s) been found, has held that either the

attitude of the killer, the manner of the killing, or the

suffering of the victim can be used to uphold a jury finding...,

the Oklahoma court hafs)} not interpreted the aggravating

circumstance in a way that genuinely narrow{s] the class of

persons subject to the death penalty." Petition, at 22-23.

Again, the Tenth Circuit held nothing of this sort. To the

contrary, what the Tenth Circuit did was to explore each of these

dimensions -- the killer’s attitude, the manner of the killing,

and the victim’s suffering -- as the Court of Criminal Appeals

has developed each, to see if any of the dimensions imposed any

genuine restriction upon the classification of murders as

heinous, atrocious or cruel. Only after finding that none of

these dimensions imposed any such restriction did the Tenth

Circuit hold that the Oklahoma court had failed to adhere to

Godfrey, according to Godfrey’s Plain terms. 822 F.2d at 1489-

91.7

Thus, contrary to the State’s depiction of the Tenth

Circuit’s opinion, the Tenth Circuit in no respect mandated that

Oklahoma adopt any particular limiting principle in applying the

“especially heinous" aggravating circumstance. It determined

only that Oklahoma had neither adopted nor adhered to such a

principle. And in making this determination, the Tenth Circuit

left open to the Oklahoma Court of Criminal Appeals the option of

avoiding any future Godfrey problems by reinstating the

“unnecessarily torturous" limiting principle which it originally

adopted but then abandoned, or by adopting any other Clarifying

in-:erpretation of the “especially heinous, atrocious, or cruel"

le nguage that the Court of Criminal Appeal might choose, within

7 The court did note that Oklahoma’s definition of "cruel"

(see n. 2, supra), in focusing on the suffering of the victim and

the defendant’s attitude toward it, “is somewhat more

precise...." 822 F.2d at 1489. There were, however, two reasons

that this definition failed to cure the Godfrey problem:

First, the Oklahoma court has clearly rejected the

argument that the suffering of the victim is the major

factor to be considered under this aggravating

circumstance.... Second, because the Oklahoma court has

emphasized that “a murder need only be heinous,

atrocious, or cruel,... even if the definition of cruel

was adequate, the vague definitions of atrocious and

heinous would still allow a sentencer to rely upon an

unconstitutionally vague standard in determining that a

murder satisfies this aggravating circumstance.

id. at 1489-90 (citations omitted) (emphasis in original).

the wide latitude left by Godfrey and undiminished by the

Cartwright opinion itself.

The State’s final attempt to nake its petition seem worthy

of plenary review is its manufacture of conflicts between the

Tenth Circuit in Cartwright and other circuits. The State

asserts that other federal circuits have upheld the application

of other states’ “especially heinous" provisions to cases

factually similar to mr. Cartwright’s, see, e.g., Petition, at

23-24, 25-26, and that the Fourth Circuit’s decision in Turner v.

Murray® is inconsistent with Cartwright because Turner

distinguished Godfrey on grounds that imply that the Fourth

Circuit “reviewed the attitude of the killer in determining

whether the evidence supported the aggravating circumstance,

which was identical to the review conducted by the Oklahoma Court

of Criminal Appeals in this case," Petition, at 26-27. All of

this is vastly wide of the mark, inasmuch as the Tenth Circuit

never purported to decide whether mr. Cartwright’s particule-

offense could or could not have been characterized as especially

heinous, atrocious, or cruel on the facts, had the Oklahoma Court

of Criminal Appeals chosen to adopt a limiting principle against

which to measure those facts. 2? Nor did the Tenth Circuit hold

8 Turner _v. Bass, 753 F.2d 342, 351-53 (4th Cir. 1985),

; , Turner _v. Murray, 90 L.Ed.2d 27

(1986).

9 Indeed in all the cases cited by the State as factually

Similar cases, the states involved had adopted and adhered to a

variant of the “unnecessarily torturous" limiting principle. See

Turner _v. Bass, 753 F.2d at 351-53 (applicable where aggravated

battery of the victim preceded the killing); i °

631 F.Supp. 274, 284 (S.D. Miss. 1986), aff’d, 809 F.2d 239, 241

(Sth Cir. 1987) (applicable only to “’conscienceless or pitiless

crime which is unnecessarily torturous to the victim’"); Francois

v. Wainwright, 741 F.2d 1275, 1286 (11th Cir. 1984) (applicable

only to cases involving physical or psyctological torture);

» 764 F.2d 1371, 1380 (llth Cir. 1985) (same) ;

, 809 F.2d 1478, 1485 (1lith Cir. 1987) (same).

Whether the finding of heinous, atrocious, or cruel in Mr.

Cartwright’s case would have been sustained in these states is

irrelevant, for Godfrey’s rule cannot be satisfied simply because

there is some other state in which the finding would have been

Sustained under a properly limited application of the

circumstance. Instead, Godfrey entitles the condemned person to

have the finding of his aggravating circumstances measured

against limiting principles that have been adopted and applied

with reasonable consistency by the courts in which he has been

sentenced and in which his sentence is reviewed.

that there would be anything wrong with the Oklahoma Court of

Criminal Appeals’ considering a killer’s attitude as relevant to

the “especially heinous" circumstance, ¢t0 long as the

consideration of this factor complied with Godfrey in defining a

particular attitude that would establish the “especially heinous"

circumstance and adhering to that definition. What the Tenth

Circuit did hold was the following:

We make no judgment as to whether the attack in this

case was ‘especially heinous, atrocious, or cruel.’ We

hold only that the Oklahoma courts failed to guide the

sentencer’s discretion with constitutionally adequate

standards.

822 F.2d at 1492.

THE STEPHENS ISSUE

In determining the effect of the sentencer’s reliance in Mr.

Cartwright’s case on a constitutionally invalid aggravating

circumstance, the Tenth Circuit again conducted a straightforward

analysis, on the basis of the principles articulated by this

Court in Zant v. Stephens, 462 U.S. 862 (1983), and Barclay v.

Florida, 463 U.S. 939 (1983). Even the State does not fault this

analysis.+° Instead, the State directs its entire effort toward

manufacturing a non-existent conflict between the Tenth Circuit

and the Fifth Circuit on this question. The State’s fabrication

is tased upon a misunderstanding of Stephens and Barclay and

their differing analyses with respect to "“non-balancing,"

Georjia-type death penalty statutes and "balancing," Florida-type

death penalty statutes. The Tenth Circuit, however, plainly

understood these differing analyses.

Whether a death sentence must be vacated if one of two or

mcre statutory aggravating circumstances found by the jury is

subsequently held to be unconstitutional “depends on the function

of the jury’s finding of an aggravating circumstance under [the

state’s) capital sentencing statute...." Stephens, 462 U.S. at

10 Indeed the State did not argue before the Tenth Circuit,

nor has it argued here, that the sentencer’s improper

consideration of the “especially heinous" circumstance had no

effect on Mr. Cartwright’s sentence.

864. In examining the Georgia statute in Stephens and the

Florida statute in Barclay, this Court identified significant

differences between "the function of the jury’s finding of an

aggravating circumstance" under the Georgia and Florida statutes.

In Stephens, the Court found that the sole function of the

jury’s finding of an aggravating circumstance in Georgia is to

narrow the class of persons eligible for the death penalty. 462

U.S. at 875. Upon the jury’s finding of one statutory

aggravating circumstance, the defendant becomes death-eligible.

Once the defendant is death-eligible, the jury may in its

discretion impose the death penalty after considering all the

facts and circumstances of tie case.

(T)he jury is not instructed to give any special weight

to any aggravating circumstance, to consider multiple

aggravating circumstances any more significant than a

Single such circumstance, or to balance aggravating

against mitigating circumstances pursuant to any

special standard. Thus, in Georgia, the finding of an

aggravating circumstance does not play any role in

guiding the sentencing body in the exercise of its

discretion, apart from its function of narrowing the

class of persons convicted of murder who are eligible

for the death penalty.

id. at 873-74 For these reasons, so long as one valid statutory

aggravating circumstance is found, as in Stephens, the function

of finding an aggravating circumstance in Georgia -=- narrowing

the class of death-eligible defendants -- has been fulfilled.

id. at 879. If one or more of the other aggravating

circumstances is improperly found, that error is harmless. Jd.

at 886-89.

In contrast to Georgia’s statutory scheme, the function of

the finding of an aggravating circumstance in Florida is not

simply to narrow the Geath-eligible class, but, rather, to guide

the discretion of the sentencer. When an aggravating

circumstance is found in Florida, it must be weighed against the

mitigating circumstances. If it outweighs the mitigatins

circumstances, death can be imposed. Although “the sentencing

authority is not required to impose the death penalty” at this

point, Barclay 463 U.S. at 963 (Stevens, J., joined by Powell,

J., comcurring), the sentencer’s discretion “is more

circumscribed” at this point than at the corresponding point in

Georgia’s capital sentencing process. id.

When aggravating circumstances are found in Florida, they

play a crucial role in guiding the sentencer’s ultimate exercise

of sentencing discretion. Unlike Georgia, where "the jury is not

instructed to give any special weight to any aggravating

circumstance, to consider multiple aggravating circumstances any

more significant than a single such circumstance, or to balance

aggravating against mitigating circumstances pursuant to any

special standard,” Stephens, 462 U.S. at 873-74, Florida does

instruct the jury in this fashion. In the Florida scheme,

therefore, the erroneous weighing of an aggravating circumstance

necessarily affects the sentencer’s choice of life or death, for

the weight of aggravating circumstances -- which is a critical

guidepost for that choice -- is improperly increased by that

error.

The Tenth Circuit correctly found that Oklahoma’s statutory

scheme is like Florida’s:

The purpose of an aggravating circumstance in the

Oklahoma statute is Gecidedly different from the

purpose of an aggravating circumstance in the Georgia

statute considered in Zant.... Oklahoma uses an

aggravating circumstance to guide the discretion of the

sentencer in determining whether the death penalty

should be imposed for a particular murder. Okla. Stat.

Amn. tit. 21, § 701.10 (West 1983). The sentencer must

balance all of the statutory aggravating circumstances

with all of the mitigating circumstances. Ookla. Stat.

Ann. tit. 21, § 701.11 (West 1983).

822 F.2d at 1480. Thus, Oklahoma, like Florida, “uses an

aggravating circumstance to guide the discretion of the sentercer

rather than to define which first Gegree murders are capital

offenses." Jd.)

= The importance of the aggravating circumstances in

guiding sentencing discretion in Oklahoma was further emphasized

by the Tenth Circuit in Parks v. Brown, 823 F.2d 1405, 1415 (10th

Cir. 1987), where the court read Oklahoma law as requiring the

imposition of death if aggravating circumstances outweigh

mitigating circumstances. Whether that reading of Oklahoma law

is accurate is not a question raised in this proceeding;

nevertheless, that Oklahoma law could reasonably be understood in

this way simply emphasizes how important aggravating

circumstances are in guiding the Oklahoma sentencer’s @iscretion.

Stephens and Barclay also establish that the effect of a

capital sentencer’s reliance on an invalid aggravating

circumstance depends “on the reasons that the aggravating

circumstance at issue... [is] found to be invalid.” Stephens, 462

U.S. at 864. Here, there is a critical distinction betw-er

errors of state law and errors of constitutional law. If the

aggravating circumstance is invalid because it is federally

unconstitutional, a “federal harmless-error analysis" must be

applied, to determine whether the sentencer’s consideration of

the invalid circumstance was harmless beyond a reasonable dourt.

Barclay v. Florida, 463 U.S. at 951 n.8 (referring to ne hy

Stephens, 462 U.S. at 884-89). If, on the other hand, the

aggravating circumstance is invalid solely under state law, no

such analysis is necessary, because "a ‘mere error of state law’

is not a denial of due process." [d.

In undertaking this part of the Stephens analysis in Mr.

Cartwright’s case, the Tenth Circuit was fully aware cof the

Gistinction to be made between state-law error ani federal

constitutional error. 822 F.2d at 1481-83. Categorizing the

basis for invalidity of the "especially heinous" asg¢gravatins

circumstance in Mr. Cartwright’s case, the Tenth Circuit found

that the circumstance was invalid because it failed to comport

with the Eighth Amendment’s requirement of m2aningful channeling

of capital sentencing discretion. Id. at 1482. Because the

circumstance was invalidated on this ground, the Tenth Circuit

correctly recognized that the burden then f::.1 upon the State to

show that the erroneous consideration of the circumstanc

harmless beyond a reasonable doubt. Jd. at 1482-83.

It was at this point that the Tenth Circuit concluded that

the State could not make such a showing in Mr. Cartwright’s case,

because of “the function of the finding of an aggravatins

circumstance" in Oklahoma, Stephens, 462 U.S. at 864.+* As the

12 as we have already noted, the State did not even attempt

to demonstrate that the erroneous consideration of the

“especially heinous" circumstance was harmless in Mr.

Cartwright’s case.

court explained, “An aggravating circumstance in Oklahoma plays a

critical role in guiding the discretion of the sentencer who must

decide whether a particular murder merits life imprisonment or

death for the defendant." Cartwright, 822 F.2d at 1482.

Further, the Oklahoma courts have deemed that role so critical

that they “have declined to reconsider... (the decision to impose

death] on appeal when the sentencer improperly included an

invalid aggravating circumstance in the balancing process." [d.

Since the state appellate court does not consider that such an

error can ever be harmless, it is plain that "[i]}n such a systen,

reliance upon an aggravating circumstance that is invalid under

the federal constitution could affect the balance struck by the

sentencer," and cannot, therefore, be shown to be harmless beyond

a reasonable doubt. Id. at 1482-83 (emphasis supplied).13 The

Tenth Circuit was thus clearly correct in holding that the death

sentence could not stand in this case.

The State does not contend that the Tenth Circuit’s

unanimous en banc opinion is contrary to this Court’s opinions or

constitutes a misstatement of Oklahoma law on the balancing

issue. Rather, it attempts to create the appearance of a circuit

conflict by misreading certain Fifth Circuit opinions.

The State devotes most of its second point, see Petition, at

38-49, to a claim that the Tenth Circuit’s en banc opinion

conflicts with Fifth Circui: decisions upholding death sentences

under Louisiana law where one of several aggravating factors was

invalid. The State argue: that the Fifth Circuit reached this

result even though in Louisiana "the jury weighs the aggravating

circumstances against mitigating circumstances when determining

whether to impose the death sentence." Petition, at 41-42.

13 This, of course, assumes that there are, in any

particular case, mitigating circumstances against which

aggravating circumstances are balanced, for only if there is a

between aggravation and mitigation is there a “balance

struck by the sentencer" which is necessarily affected by the

consideration of a constitutionally invalid aggravating

circumstance. In Mr. Cartwright’s case there were, indisputably,

substantial mitigating circumstances.

But the very premise of the Fifth Circuit’s decisions is

that, as it reads Louisiana law, the Louisiare statute is pot a

balancing statute, as are the statutes of Florida and Oklahoma.

According to the Fifth Circuit, Louisiana, like Georgia, merely

uses an aggravating circumstance to determine the class of

defendants who are gp sguce for capital punishment: a finding of

one aggravating circumstance is adequate. In determining who

among the eligible class are to be sentenced to death or life

imprisonment, the Fifth Circuit has found that “Louisiana law

does not require weighing of aggravating against mitigatir

circumstances."24 In contrast, Oklahoma makes all first-degree

murderers eligible for the death sentence, and the statute

specifically requires a weighing of aggravating and mitigating

factors to decide which defendants should be sentenced to death

or life imprisonment.

This critical difference between the function cof the

sentencer’s finding of an aggravating circumstance in Oklahoma

and Louisiana was pointed out here by the Tenth Circuit.

Cartwright, 822 F.2d at 1480. The Tenth Circuit found that "the

Cklahoma statute is unlike the statutes in those states in which

aggravating circumstances are employed to narrow the class of

first degree murderers that are eligible for the death penalty.”

Id. at 148(. Oklahoma “uses an aggravating circumstance to guide

the discre'’:ion of the sentencer in determining whether the death

penalty should be imposed for a particular purpese.”" za. at

1480.

It is this factor which distinguishes the differin

decisions in the Fifth Circuit and the Tenth Circuit. There is

no conflict to be resolved. A difference between state statutory

schemes, rather than a difference in federal analytical

14 wilson v. Butler, 813 F.2d 664, 674 (5th Cir. 1987). See

also Welcome v. Blackburn, 793 F.2d 672, 677 (5th Cir. 1986),

cited in Cartwright, 822 F:2d at 1480. Petitioner’s strenuous

efforts, see Petition, at 42-48, to impeach Wilson as incorrect

and in conflict with other Fifth Circuit opinions is without

merit. Moreover, assuming arguendo that the Fifth Circuit is

wreng in its view of Louisiana law, the present certiorari

petition is surely not the proper vehicle for dealing with that

problem.

principles, accounts for the differing results in Cartwright and

the Fifth Circuit cases cited by the State.

CONCLUSION

For the reasons stated above, the petition for

certiorari should be denied.

November 22a, 1987

Respectfully submitted,

DNandy bdhe

MANDY WELCH

Office of the’ Appellate Defender

1660 Cross Center Drive

Norman, Oklahoma

(405) 325-3331

Attorney for Respondent

William Thomas Cartwright

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.