Appendix — Oklahoma v. Hain

Supreme Court, Us.

FILED

93125 2 DEC 1 3 1993

IN THE SUPREME COURT OF THE UNITED STATES

[ “4 }

{ i

\ ¢

October Term, 1993

THE STATE OF OKLAHOMA,

Petitioner,

Vv.

SCOTT ALLEN HAIN,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF CRIMINAL APPEALS

SUSAN BRIMER LOVING

ATTORNEY GENERAL

A. DIANE BLALOCK

ASSISTANT ATTORNEY GENERAL

SANDRA D. HOWARD*

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL DIVISION

2300 N. Lincoln Blvd., Suite 112

Oklahoma City, Oklahoma 73105-4894

(405) 521-3921

December, 1993

*Counsel of Record

TABLE OF CONTENTS

EXHIBIT "A" - Opinion. ......

Order Denying Petition for

Rehearing and Directing Issuance of

MemGeate. «© «© see ev ee ee © @

56

SCOTT ALLEN HAIN,

Appellant,

Vv.

STATE OF OKLAHOMA,

Appellee.

No. F~-88-466

Court of Criminal Appeals of Oklahoma

April 29, 1993

Rehearing Denied and Mandate

Issued September 14, 1993.

Defendant was convicted in the District

Court, Creek County, Donald D. Thompson,

J., of capital murder, and was sentenced to

death. On appeal, the Court of Criminal

Appeals, Lane J., held that: (1) Oklahoma's

system of capital punishment is facially

constitutional; (2) where verdict did not

specify whether defendant was found guilty

of malice-aforethought murder or felony-

murder, reviewing court would assume that

verdict was for felony-murder, thereby

precluding additional conviction for

2

robbery on double jeopardy grounds; (3)

amendment to death penalty statute, adding

potential punishment alternative of life

without parole, was applicable to case

tried after its effective date.

Convictions affirmed in part and

reversed in part; sentence vacated and case

remanded.

Lumpkin, PB.» concurred in part,

dissented in part and filed opinion.

Johnson, V.P.J., concurred specially and

filed opinion.

1. Criminal Law - 1208.1(4.1)

Oklahoma's system of capital punishment

is facially constitutional. U.S.C.A.

Const. Amends. 8, 14.

2. Infants - 68.2

Reverse certification procedure, used

for determining whether 16 or 17-year-old

defendant should be tried as adult, does

not unconstitutionally fail to narrow class

of offenders against which death penalty

3

may be sought; rather, procedure adds

security of preliminary determination as to

whether prosecution as adult is

appropriate, death penalty concerns aside,

before affording young defendant all

constitutional protections against

arbitrary assessment of death penalty

afforded any other defendant. 10

Ok1.St.Ann. § 1104.2.

3. Constitutional Law - 213.1(2)

In order to meet constitutional equal

protection requirements, any system of

Classification must provide sufficient

standards so as to establish rational basis

for classification. U.S.C.A. Const.Amend.

14.

4. Infants - 69(1)

Imposition of death penalty upon murder

defendant who was 17 years old at time of

offense did not offend societal standards

of decency; defendant was afforded

protections of reverse certification

4

process, which determined that he should be

treated as adult. 10 Ok1.St.Ann. § 1104.2.

5. Jury - 131(13)

Murder defendant was not entitled to

individual voir dire of jurors in order to

assess effect of fairly substantial

pretrial publicity; defendant did not claim

that he was denied fair or impartial jury,

and there was no indication that he was

unable to ask any question of any potential

juror.

6. Jury - 33(1.15, 1.20)

Capital murder defendant failed to

establish that absence of any blacks and

presence of very few young people in pool

from which jury was selected deprived him

of his right to jury from fair cross

section of population; there was no

evidence that underrepresentation of any

group, assuming it existed, was due to

systematic exclusion of group from jury

process. U.S.C.A. Const. Amend. 6.

2 oooooeoooooererereerr

5

7. Criminal Law - 661

Evidentiary matters are largely left to

discretion of trial court; appellate review

focuses upon whether, in face of challenge

to particular item of evidence or portion

of testimony, trial court made appropriate

decision.

8. Homicide - 179

Evidence obtained by psychiatrist in

conducting pretrial competency evaluation

of capital murder defendant was admissible

as substantive evidence with regard to

issue of defendant's sanity at time of

offense, where evidence was offered in

direct rebuttal to defendant's evidence

that he was not sane at time of crime.

9. Criminal Law - 1120(9)

Murder defendant appealing admission of

victim photographs did not establish

appropriate appellate record; there was no

request that pictures be made part of

6

record and they were not included for

appellate court's review.

10. Criminal Law - 1036.1(3.1)

Unobjected-to testimony of murder

victims' relatives was not fundamental

error; while testimony as to identification

of victims and their belongings may have

been unnecessary in light of other

testimony to same facts, at most it was

merely cumulative.

11. Homicide - 312

Conviction for murder may be affirmed

where alternative theories are charged and

evidence supports either malice-

aforethought or felony-murder; where

alternative charges are based on factual

basis of crime rather than actual nature of

offense, jury is not required to indicate

which alternative conviction is based upon.

4

12. Criminal law ~ 1144.16

Where verdict did not specify whether

defendant was found guilty of malice-

aforethought murder of felony-murder,

reviewing court would assume that verdict

was for felony-murder, thereby precluding

additional conviction for robbery on double

jeopardy grounds. U.S.C.A. Const.Amend. 5.

13. Criminal Law - 1206.3(2)

Amendment to death penalty statute,

adding potential punishment alternative of

life without parole, was applicable to case

tried after its effective date, even though

crime was committed before effective date.

21 Okl.St.Ann. § 701.10.

An Appeal from the District Court of

Creek County, Donald D. Thompson, District

Judge.

SCOTT ALLEN HAIN, Appellant, was

convicted of two counts each of Murder in

8

the First Degree, Kidnapping, Robbery with

Firearms, and Larceny of an Automobile and

one count of Arson in the Third Degree

after a two stage jury trial in the

District Court of Creek County, Case No.

CRF-87-240. Following the guilty verdicts,

Appellant was sentenced in accordance with

the jury's recommendations. He received

the death penalty on each count of Murder,

ten years per count for Kidnapping, one

hundred years per count for Robbery with

Firearms, twenty years per count for

Larceny of an Automobile and fifteen years

for the third degree Arson. Appellant has

brought this appeal challenging both the

guilty verdicts and the sentences imposed

for the crimes. Having reviewed | the

allegations of error raised by Appellant,

we find that the convictions for Murder,

Kidnapping, Arson in the Third Degree and

Larceny of an Automobile are AFFIRMED. The

convictions for Robbery with Firearms are

CO er rene ir lg” led intro wished

9

REVERSED with instructions to DISMISS. The

death sentence returned for the Murder

convictions is VACATED and the case is

REMANDED for new second stage proceedings.

John Thomas Hall and Elaine Meek, Tulsa,

for appellant. 3

Robert H. Henry, Atty. Gen., Carol Price

Dillingham, Asst. Atty. Gen., Oklahoma

city, for appellee.

OPINION

LANE, Judge:

Appellant, Scott Allen Hain, was

convicted of two counts each of Murder in

the First Degree, Kidnapping, Robbery with

Firearms, and Larceny of an Automobile and

one count of Arson in the Third Degree

after a two stage jury trial in the

District Court of Creek County, Case No.

CRF-87-240. Following the guilty verdicts,

Appellant was sentenced in accordance with

the jury's recommendations. He received

the death penalty on each count of Murder,

10

ten years per count for Kidnapping, one

hundred years per count for Robbery with

Firearms, twenty years per count for

Larceny of an Automobile and fifteen years

for the third degree Arson. Appellant has

brought this appeal challenging both the

guilty verdicts and the sentences imposed

for the crimes.

During the early morning hours of

October 6, 1987, Laura Lee Sanders and

Michael Houghton were seated in Sanders’

car outside a Tulsa bar when they were

approached by two men, later determined to

be Scott Allen Hain and Robert Wayne

Lambert. Hain and Lambert were in the

parking lot, waiting to rob a nearby house

when they saw Sanders and Houghton talking

in the car. Appellant and Lambert forced

their way into the car by threatening

Houghton with a knife. Z

Hain drove the car away from the bar,

then stopped and robbed Houghton at

11

gunpoint. When Houghton resisted the

robbery, Appellant forced him into the

trunk of the car. A short while later,

Appellant and Lambert stopped and put

Sanders in the trunk as well.

After robbing Houghton and getting the

keys to his truck, the two men decided to

go back to the bar where the incident began

and take Houghton's truck as well as

Sanders car. Lambert drove the truck away

from Tulsa towards Sand Springs. He

stopped after driving down a rural Creek

County roadway. Appellant followed in

Sanders' car with Sanders and Houghton in

the trunk.

The two men took Sanders’ things,

including some clothes, out of her car and

put them in the truck. One of them cut the

gas line to the car and set it on fire by

putting lighted newspaper and a blanket

under the dripping fuel line. Houghton and

Sanders were banging on the trunk and

12

yelling. Appellant and Lambert left the

area, however, returned a short time later

to see if the fire was burning well.

The two men stopped at a friend's house

in Jennings and left a bag of things

belonging to the victims in the garage.

They traveled to Wichita, Kansas_ in

Houghton's truck. After spending the five

hundred and sixty-five ($565.00) dollars

which they got from Houghton and Sanders,

the two returned to Tulsa, where they were

apprehended on the evening of October 9,

1987.

STATUS AS A JUVENILE

Appellant's first series of arguments

concerns the fact that he was seventeen

when the murders of Houghton and Sanders

were committed. He complains that the

reverse certification procedures in

Oklahoma do not sufficiently narrow the

class of offenders against which the death

penalty may be sought; that execution of a

13

juvenile is against societal standards of

decency; that the punishment "fails in the

‘proportionality’ analysis;" and that the

classification standards are arbitrary and

capricious. We disagree with Appellant's

assessment of the statutes concerning the

certification process and how they relate

to the imposition of punishment in this

case or any other case involving the death

penalty.

As his first allegation of error,

Appellant asserts that the imposition of

the death penalty against a juvenile is

prohibited by both the Eighth and

Fourteenth Amendments to the United States

Constitution. Specifically he claims that

Oklahoma's reverse certification procedure,

which provides that a sixteen or seventeen

year old is considered to be an adult when

he commits certain crimes, does not meet

the standard for "death qualification” set

by Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.

14

2909, 49 L.Ed.2d 859 (1976). Appellant

misrepresents the purpose of the reverse

certification process when he attempts to

apply the principals of Gregg solely to the

pre-trial reverse certification stage of

criminal proceedings.

In Gregg, the Supreme Court analyzed the

Georgia system of capital punishment to

determine whether the problems confronted

in Furman v. Georgia, 408 U.S. 238, 92

S.Ct. 2726, 33 L.Ed.2d 346 (1972), had been

resolved. In Furman, "the Court held that

the penalty of death may not be imposed

under sentencing procedures that create a

substantial risk that the punishment will

be inflicted in an arbitrary and capricious

manner." Godfrey v. Georgia, 446 U.S. 420,

426, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398

(1980). In Gregg, the Court held:

Furman held only that in order

to minimize the risk that the

death penalty would be imposed

on a capriciously selected

group of offenders, the

15

decision to impose it had to be

guided by standards so that the

authority would

focus on the particularized

circumstances of the crime and

the defendant. (Emphasis

added).

Id. 428 U.S. at 199, 96 S.Ct. at 2937.

We

dictates in Allen v. State,

most recently considered

(Ok1.Cr.1991), where we held:

(1)

It has long been recognized

that a system of capital

punishment must meet strict

constitutional requirements to

be upheld. The primary goal of

any such system must be the

allowance of individualized

sentencing tempered by a

controlled amount of

discretion, exercisable by the

trier of fact.

these

821 P.2dad 371

Oklahoma's system of capital

punishment meets the qualifications

established by the Supreme Court and on its

face is constitutional.

fact

Certainly this

is evidenced by the multitude of

Oklahoma cases which have been affirmed by

the United States Supreme Court.

See

16

Saffle v. Parks, 494 U.S. 484, 110 S.Ct.

1257, 108 L.Ed.2dad 415 (1990). The

comprehensive statutory sections concerning

death penalty proceedings, coupled with

proper instructions to the jury in the

punishment stage of trial, guarantee that

the death penalty will only be assessed

against that class of criminals whose

crimes set them apart from "any other

murder." Zant v. Stephens, 462 U.S. 862,

878, 103 S.Ct. 2733, 2743, 77 L.Ed.2d 235,

251 (1983).

{2} Appellant has focused on the

reverse certification process and attempted

to bootstrap the requirement of narrowing

qualifications into this preliminary, pre-

trial stage of the prosecution. Defining

the class of offenders potentially eligible

for the death penalty is not a function of

10 0.S.Supp. 1986, § 1104.2. That section

merely determines whether an alleged

offender, either sixteen or seventeen years

17

old, may be prosecuted as an adult or

whether he should be treated as a juvenile.

To the extent that classification as a

juvenile is denied, as it was here, then

the admittedly young defendant is afforded

all the constitutional protections against

the arbitrary assessment of the death

penalty as is any other defendant.

We find that the statutory processes

carried out in the present case afforded

Appellant double protection against the

unfair assessment of the death penalty.

Appellant had the added security of a

preliminary determination as to whether

prosecution as an adult was appropriate,

death penalty concerns aside. If anything,

the reverse certification process adds an

additional measure of certainty to the

entire criminal process.

[3] In connection with Section 1104.2,

Appellant also argues that in general, the

standards by which reverse certification is

18

measured are arbitrary and capricious.

Appellant correctly argues that in order to

meet constitutional standards, any system

of classification must provide sufficient

standards so as to establish a rational

basis for the classification. His argument

here, however, fails due to his inability

to point out any portion of the process or

statutory language which offends any of the

constitutional protections. We have

consistently held that the standards set

out by the statute are appropriate and

protect the constitutional guarantees of

the individual offender. A.M.H. v. State,

766 P.2ad 351 (Ok1.Cr.1988); G.E.D. v.

State, 751 P.2d 755 (Ok1.Cr.1988) ;

Trolinger ov. State, 736 P.2d 168

(Ok1.Cr.1987).

{4} Appellant's next two arguments

with regard to the effect of his age

concern the actual assessment of the death

penalty. He argues that the execution of

19

murderers who were under the age of

eighteen at the time the crime was

committed offends the standards of society

and that his sentence fails the

proportionality standards established by

Enmund v. Florida, 458 U.S. 782, 102 S.Ct.

3368, 73 L.Ed.2d 1140 (1982). We disagree.

Both of Appellant's arguments are based on

his assertion that “adolescents or children

are less blameworthy than adults" and

apparently should not be held accountable

for their actions. We dispensed with a

similar argument in Sellers v. State, 809

P.2d 676 (Ok1.Cr.1991). In that case we

considered the imposition of the death

penalty in cases involving defendants who

were sixteen years old at the time of their

crimes. We recognized that although a

plurality of the Supreme Court has held

that execution of a person who was under

sixteen at the time of the offenses would

violate the Eighth Amendment, the Court

20

expressed no opinion concerning seventeen

year old criminals. Thompson v. Oklahoma,

487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d

7

702 (1988).

In Sellers, we rejected the argument the

Thompson decision should be extended to

persons between the ages of sixteen and

eighteen. We held:

We are unpersuaded that our

previous decisions should be

disturbed with respect to a

person who was sixteen at the

time of his offense. In her

concurring opinion {in

Thompson}, Justice O'Connor

expressed the belief that a

national consensus exists which

forbids the execution of any

person for crimes committed

before the age of sixteen. In

the absence of a clear

expression by the State

Legislature, she found the use

of capital punishment to be

unauthorized. By excluding

persons sixteen years of age

who commit murder from the

statutory definition of

"child", see 10 0O.S.Supp.1987,

§ 1101(1), we find that the

Legislature clearly expressed

its intention that such persons

should be subject to the full

range of punishments prescribed

for adult offenders.

21

Appellant offers no effective reason why

we should reconsider our previous position.

Appellant was afforded the protections of

the reverse certification process,

including separate appellate review of the

trial court's decision prior to his adult

criminal prosecution.’ We believe that the

societal interests and standards of decency

are properly protected by such a system

which independently measures whether or not

the individual offender should be treated

as a child or as an adult. To the extent

the factors involved indicate that

treatment as an adult, with its incumbent

levels of punishment, is warranted, then

lappellant challenges the finding by

the trial court that he should be

prosecuted as an adult by arguing that the

court's finding was against the weight of

the evidence. This argument was not raised

on the direct appeal of the order denying

certification. See S.A.H. v. State, 753

P.2a 381 (Ok1.Cr.1988). Accordingly,

further consideration at this time is

barred by principals of res judicata.

22

standards of decency and proper morality

are maintained. We see no reason to find

that Appellant's case is outside the scope

of expected result of the various

procedures employed.

FIRST STAGE PROCEEDINGS

Next we turn to the allegations of error

which Appellant suggest occurred during the

first stage of the trial.? Appellant

asserts that errors occurred in the jury

selection process, that he was subjected to

double jeopardy, that the jury was

improperly instructed and that the trial

court committed several errors with regard

to the admission of evidence. We will

consider these arguments in the order they

occurred at the trial.

In propositions thirteen and eighteen of

his brief, Appellant claims that he was

2These include propositions III, IV,

V, X, XII, XIV, XVII and XVIII.

23

deprived of a fair jury because he was not

allowed to privately individually voir dire

the members of the panel concerning the

pretrial publicity to which they had been

exposed and because there were no blacks

included in the pool from which the jury

was selected. We do not find that either

of these allegations justify relief.

{5} As his first claim with respect to

the voir dire proceedings at his trial,

Appellant claims that the trial court erred

when it refused to allow individual

questioning of each individual called in

order to assess the effect of fairly

substantial pretrial publicity. we

considered an identical issue in Vowel] v.

State, 728 P.2d 854, 857-58 (Ok1.Cr.1986),

wherein we held:

Appellant requested individual

voir dire of jurors, as well as

sequestration of them during

voir dire. Appellant did not

have a right to either request,

though such may be allowed by

the trial court... .

an NY a ee

24

The existence of extensive

pretrial new coverage does not

itself demand individual or

sequestered voir dire... .

The crux of the issue is

whether [a] defendant ' can

receive fair and impartial

jurors .. . . An exhaustive

voir dire was conducted

accounting for nearly seven

hundred pages of transcript,

and as previously noted, an

apparently impartial jury was

selected.

We find no reason to reach a different

conclusion in this case. Appellant does

not claim that he was denied a fair or

impartial jury. There is no indication

that he was unable to ask any question of

any potential juror. Accordingly, we must

conclude that the very thorough voir dire

proceedings undertaken in this case

resulted in the fair and impartial jury to

which Appellant is entitled.

[6] The next indictment of the jury

selection process concerns the fact that

there were no blacks called to serve in the

pool from which jury selection in this case

25

was made. Appellant also points out that

there were very few young people in the

pool. The crux of his argument is not that

he did not receive a fair and impartial

jury, but that the jury selection pool did

not constitute a random cross section of

the population. This issue has previously

been the subject of several opinions from

this Court.

In Moore v. State, 736 P.2d 161, 165

(Ok1.Cr.1987), cert. denied 484 U.S. 873,

108 S.Ct. 212 98 L.Ed2d 163 (1987), we

discussed and adopted the criteria which

must be proven by a defendant in order to

sustain a claim of this nature. We quoted

the three proof requirements established by

the Supreme Court in Duren v. Missouri, 439

U.S. 357, 364, 99 S.Ct. 664, 668, 58

L.Ed.2d 579, 587 (1979) as being:

(1) that the group alleged to be

excluded is a ‘distinctive’ group in the

community;

26

(2) that the representation of this

group in venires from which juries are

selected is not fair and reasonable in

relation to the number of such persons

in the community; and (3) that this

under representation is due to the

systematic exclusion of the group in the

jury process.

See also Fox v. State, 779 P.2d 562

(Ok1.Cr.1989), cert. denied 494 U.S. 1060,

110 S.Ct. 1538, 108 L.Ed.2d 777 (1990);

Litteer Vv. State, 783 P.2da 971

(Ok1.Cr.1989).

Appellant's claim may be rejected on two

grounds. First, there is not an

appropriate record from which we may

determine the veracity of his claim and

second, because he has failed to provide

any evidence that the under representation

of any group, assuming one does exist, was

"due to the systematic exclusion of the

group in the jury process."

27

Following the resolution of the jury

selection process, counsel for Appellant

made the following objection:

I object to the racial exposition (sic)

of the entire panel, now that we have seen

them and seen each individual taking a

seat. I would state to the Court, it is

not racially balanced from the standpoint

of my-nor was it greatly balanced from the

beginning. And, as such, Your Honor, I

would ask for a mistrial and another panel

be selected that are more racially

balanced.

Tr. 222.

This argument by counsel is the only

objection voiced to the composition of the

jury. It appears from the context of

counsel's argument that he is objecting

only to the racial mix of the jurors

actually chosen. In any event, there is no

record before us which indicates the race

or the individual ages of those comprising

28

either the original ‘pool or the jury

selected. This absence alone is sufficient

ground on which to deny the allegation. We

cannot assume error from a silent record.

Carter _v. State, 595 P.2d 1352

(Okl1.Cr.1979); Reid v. State 478 P.2d 988

(Ok1.Cr.1970). See also Ellis v. State 795

P.2d 107, 109 (Okl.Cr.1990); Hill v. State,

745 P.2ad 107, 109 (Okl.Cr.1987); Cardenas

v. State, 695 P.2d 876, 878 (Okl.Cr.1985) ;

Dollar Vv. State, 674 P.2da 48, 50

(Ok1.Cr.1984)

Regardless of the silent record, we find

that Appellant has wholly failed to satisfy

the burden of proof assigned to him by

Duren. There is no question but that

blacks are a distinctive group in any

community; likewise young adults.

Accordingly the first factor of the Duren

criteria is undeniably established. The

same is not true, however, of the second

and third prongs of the test.

42

“an ms

29

There is no evidence in the record of

the proportion of blacks or young adults

which live in Creek County. Neither is

there even a hint of confirmation that the

assumed (but not proven) absence of these

two classes from the jury or the jury

selection pool was due to their "systematic

exclusion" by the selection process itself.

Appellant has not met the minimum level of

proof required to justify further

evaluation of his claim. In the absence of

such proof, we find no error or reason to

believe that the jury as selected was

anything other than fair and impartial.

In propositions III, XIV and XVII,

Appellant raises issues dealing with the

admission of evidence during the trial.

Specifically, Appellant claims that the

state's psychiatrist was improperly allowed

to testify concerning statements which were

made in violation of his constitutional

rights and that certain evidence, the

30

pictures of the bodies and the testimony of

the victims relatives, was more prejudicial

than probative and should have been

excluded.

[7] At the outset, we recognize that

evidentiary matters are largely left to the

discretion of the trial court. Rosteck v.

State, 749 P.2d 556 £=(Okl1.Cr.1988).

Accordingly, our review must focus upon

whether, in the face of challenge to the

particular item of evidence or portion of

testimony, the trial court made the

appropriate decision.

[8) Appellant's first allegation with

regard to the admissibility of evidence

concerns the testimony of Dr. Thomas

Goodman, a psychiatrist called by the state

during rebuttal in the first stage of the

trial. Dr. Goodman examined Appellant at

Eastern State Hospital in connection with

the pretrial competency evaluation

requested by the State. Appellant now

31

argues that Dr. Goodman's subsequent

testimony involving opinions derived from

the pretrial examination should not have

been allowed as substantive with regard to

Appellant's sanity at the time of the

offense.

Unlike the cases which Appellant cites,

there is no allegation that the testimony

by Dr. Goodman was allowed in violation of

the Fifth Amendment. In Estelle v. Smith,

451 U.S.454, 101 S.Ct. 1866, 68 L.Ed.2d 359

(1981); Stinson v. State, 528 P.2d 735

(Ok1.Cr.1974); Noyes v. State, 516 P.2d

1368 (Ok1.Cr.1973), the question at issue

involved the admission of the psychiatric

testimony as substantive evidence of guilt.

In those cases, where the opinion rendered

involves a confession of the details of the

crime to the medical professional, there is

no question that any and all legal means

must be taken to protect the defendant's

32

rights against self incrimination. The

situation in this case is different.

We are not concerned with testimony upon

which a jury finding of future

dangerousness is based as was true in

Estelle. Instead, the evidence was offered

in direct rebuttal to Appellant's evidence

that he was not sane at the time of the

crime. We find our resolution of this

issue is guided by the Supreme Court's

decision in Buchanan v. Kentucky, 483 U.S.

402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987).

In Buchanan, the Court held that the

dictates of Estelle with regard to the

introduction of opinions based on

information gleaned during a competency

evaluation are applicable only in those

cases where the mental condition is not put

into issue by the accused. This case is

distinctly different in that Appellant's

mental status was an issue raised directly —_

by Appellant. In fact, as was the case in

33

Buchanan, the evidence as to Appellant's

mental status was the only evidence

presented by the defense.

Appellant filed an “Application and

Notice for the Use of the Insanity Defense"

on February 2, 1988. (0O.R. 200). On

February 10, the trial court granted

Appellant's request for the appointment of

psychiatric expert. (O.R. 215). In May,

the State received the court's permission

to require Appellant to submit to

examination with respect to his insanity

defense. The testimony at issue was

generated at this examination.

In Buchanan, the Court recognized the

inherent difficulty of applying’ the

restrictive rules of Estelle, in a

situation where the defendant relies on

psychiatric testimony, yet seeks to

prohibit the State from obtaining or using

rebutting evidence. The Court noted that

"(ijn such circumstances, the [State] could

34

not respond to this defense unless it

presented other psychological evidence."

Buchanan 483 U.S. at 423, 107 S.Ct. at

2918.

As was true in Buchanan, the testimony

in this case was admitted solely for the

purpose of rebutting Appellant's evidence

of extreme emotional disturbance. Dr.

Goodman did not testify about any of the

criminal acts giving rise to the action

against Appellant. From the record, it

appears that Appellant was apparently

advised of his rights in this regard and

declined to discuss the details of the

crime with the doctor. A violation of the

Fifth Amendment may only arise when the

testimony involved is ~ pased on the

incriminating statements of the defendant.

There is no evidence of that here, thus,

there is no reason for the exclusion of the

evidence.

' iain

35

[9] In Proposition XIV and xvVII,

Appellant identifies evidence, photographs

of the victims and testimony by their

relatives, which he claims should not have

been offered at trial in that it was more

prejudicial than probative. At the outset,

we note that Appellant has not established

the appropriate record to allow the review

of the photographs. There was no request

that the pictures be made a part of the

record and they were not included for our

review. Accordingly, we cannot comment on

the effect which the pictures may have had

at the trial. Ellis v. State, 795 P.2ada

107, 109 (Ok1.Cr.1990); Hill v. State, 745

P.2d 410, 411 (Ok1.Cr.1987); Cardenas v.

State, 695 P.2d 876, 878 (Ok1.Cr.1985) ;

Dollar ov. State, 674 P.2a 48, 50

(Ok1.Cr.1984).

{10} The second evidentiary matter

addressed by Appellant concerns testimony

by Houghton's wife and Sanders' mother.

36

Appellant claims that the testimony was put

on purely for the purpose of creating

sympathy for the victims. Appellant did

not object to the testimony at trial, thus

he has waived all but fundamental error.

Jones v. State, 772 P.2d 922 (Ok1.Cr.1989);

Grant v. State, 764 P.2d 214 (Ok1.Cr.1988).

While we find that the testimony of the

relatives as to the identification of the

victims and their belongings may have been

unnecessary in light of other testimony to

the same facts, at most it was merely

cumulative. We do not’ find that

fundamental error has occurred. —

The final allegations with respect to

the first stage of the proceedings concern

the manner in which the questions of guilt

were submitted to the jury. In Proposition

X, Appellant claims that error occurred

when the jury was not required to specify

whether the guilty verdict was based on

malice aforethought murder or felony

37

murder. In connection, he also claims in

Proposition V, that the possibility that he

was convicted based on Felony murder makes

his convictions for kidnapping and robbery

a violation of the constitutional

protections against double jeopardy.

(11) This Court has long held that a

conviction for murder may be affirmed where

alternative theories are charged when the

evidence supports either malice

aforethought or felony murder. In James v.

State, 637 P.2d 862, 865-66 (Okl.Cr.1981),

we held that when the alternative charges

were based on the factual basis of the

crime, rather than the actual nature of the

offense, a jury was not required to

indicate which of the alternatives upon

which the conviction was based. See also

Newsted v. State, 720 P.2d 734, 737

(Ok1.Cr.1986); Plunkett v. State, 719 P.2d

834 841 (Okl.Cr. 1986); Phillips v. State,

641 P.2d 556, 559 (Okl.Cr. 1982). See also

38

Schad v. Arizona, 501 U.S. , 111 S.Ct.

2491, 115 L.Ed.2d 555 (1991). The verdict

was proper, thus there is no error with

regard to the murder conviction.

[12] We must, however, reach a

different conclusion with respect to the

allegation that conviction for the offense

of robbery constitutes double jeopardy. In

Munson sv. State, 758 P.2d 324, 332

(Ok1.Cr.1988), we considered the same

allegation on almost identical facts. In

that case we held:

Nonetheless, because the jury's

verdict does not specify

whether appellant was found

guilty of malice-aforethought

murder or kidnapping murder or

armed-robbery murder, the

verdict must be interpreted as

one of felony murder in order

that appellant received the

benefit of the rule that a

defendant cannot be convicted

of felony-murder and the

underlying felony.... To

determine which felony formed

the basis for felony-murder

where more than one underlying

felony is charged, one must

look first to the information

oot TTR UE AIS CORT

39

and second to the evidence.

(Citations omitted).

In Munson, we determined that the armed

robbery conviction must be dismissed in

that the robbery was "the initial felony

which began the chain of events leading to

the victim's death." Id. at 333. We

reversed the conviction and ordered its

dismissal. We find the same result to be

warranted here. The evidence at trial

indicates that the events in this case

which lead to the deaths of the victims

arose from Appellant's desire to commit

armed robbery. He robbed the victims and

then decided to steal their. cars.

Accordingly, we find that Appellant's

conviction for two counts of Robbery with

Firearms must be reversed and remanded with

instructions to dismiss then.

SECOND STAGE PROCEEDINGS

[13] We need only address one of the

allegations made concerning errors

40

eccurring in the second stage of the

proceedings because that error requires

that the case be remanded back to the trial

court for resentencing. Appellant alleges

that his rights to due process and equal

protection were violated when the trial

court failed to instruct the jury with

respect to the potential punishment

alternative, life without parole. He bases

his claim on the fact that this punishment

option, codified at 21 0.S. 1981, § 701.10,

became law prior to his trial, although

subsequent to the commission of the

offenses. We find merit in the argument.

Due to the extreme nature of the penalty

involved in capital murder cases, we have

often discussed the need for extremely

careful scrutiny of the imposition of the

death sentence. See Liles v. State, 702

P.2d 1025, 1036 (Ok1.Cr.1985). This

philosophy is also demonstrated by the

legislative requirement that this Court

41

examine each and every sentence of death

for the evidence that the sentence was

imposed under the influence of passion,

prejudice or any other arbitrary factor,

and whether the evidence offered at trial

Supports each of the jury's findings with

respect to the aggravating circumstances

which support the sentence. 21

9.S.Supp.1987, § 701.13(C). In short,

sentences of death must absolutely,

unquestionably fair.

Given the gravity of the death penalty,

we find that principals of fundamental

fairness compel us to reverse this case for

a new second stage trial. As discussed in

Allen v. State, 821 P.2d 371 (O0kl.cr.1991),

we find no constitutional prohibition to

the application of this possible sentencing

option in cases where the penalty became

law in the period while the offender

awaited trial. Quite simply, we cannot

justify a decision which would act as a

42

total bar to consideration of a punishment

alternative to death merely because the

crime giving rise to the trial occurred a

short time before the effective date of

previously enacted legislation.

The circumstances involved in this

decision are unique and should not be

interpreted to have any broader

ramifications outside the very limited

situation implicated under these facts. We

will apply this analysis only in cases

where the amendment adding the option of

life without parole to Section 701.10 was

in effect at the time of the trial. Only

those cases will receive consideration of

the additional sentencing possibility. In

the interests of fundamental fairness, we

find that justice demands the action taken

by this Court under these distinctively

compelling facts.

Having reviewed the allegations of error

raised by Appellant, we find that the

43

convictions for Murder, Kidnapping, Arson

in the Third Degree and Larceny of an

Automobile are AFFIRMED. The convictions

for Robbery with Firearms are REVERSED with

instructions to DISMISS. The death

sentence returned for the Murder

convictions is VACATED and the case is

REMANDED for new second stage proceedings.

LUMPKIN, P.J., concurs in part/dissents

in part.

JOHNSON, V.P.J., specially concurs.

CHAPEL, J., concurs.

LUMPKIN, Presiding Judge: concurring in

part/dissenting in part.

I concur in this Court's determination

the convictions for murder, kidnapping,

arson and larceny of an automobile should

be affirmed; — and the convictions for

robbery with firearms should be reversed.

I dissent to the Court's determination the

case should be remanded for resentencing,

using the life-without-parole option.

a4

This Court in its holding’ cites

“principals {sic) of fundamental fairness"

in reversing for a new second-stage trial.

Ante at 753. This puts me in a quandary,

for how does one dissent to principles of

fundamental fairness? This quandary,

however, shows precisely why use of this

equitable principle cannot serve as the

basis for a ruling of law. As was said

over a century ago:

Equity is a Roguish thing: for

Law we have a measure, know

what to trust to, Equity is

according to the Conscience of

him that a Chancellor, and as

that is larger or narrower, so

is Equity. ‘Tis all one as if

they should make the Standard

for the measure, we call, a

Chancellor's Foot, what an

uncertain measure would this

be? One Chancellor has a long

Foot, another a short Foot, a

third an indifferent Foot.

'Tis the same thing in

Chancellor's Conscience.

Seldon, John, Equity Table-Talk (Arber,

Edward, ed. in English Reprints, nos. 1-7,

London: 1869) at 46. What is "fundamental

45

fairness" to one judge may not be

“fundamental fairness" to another.

"Fairness" in the law as applied in the

Due Process Clause of the Fourteenth

Amendment to the Constitution of the United

States, demands, among other things, fair

notice of the nature of the prohibitive

acts. Capler v. City of Greenville, Miss.,

298 F.Supp. 295, 298 (N.D.Miss.1969),

aff'd, 422 F.2d 299, (Sth Cir.1970). Here,

Appellant received that "fairness": he knew

the punishment for first degree murder at

the time he committed it was either life in

prison or death.

The majority cites Allen v. State, 821

P.2d 371 (Okl1.Cr.1991) for the proposition

there is no constitutional infirmity in the

application of the life-without-parole

option to a murder which occurred before

that punishment option went into effect.

Allen is discussed more fully below. But

first, I will show jurisprudence covering

46

nearly nine decades proves the majority of

this Court is simply wrong, both here and

in its previous analysis.

Our most recent decision dealt with the

subject of retroactive application of

punishment is Bowman v. State, 789 P.2d 631

(Ok1.Cr.1990). In Bowman, we stated with

clarity that "the appropriate criminal

penalty is the penalty in effect at the

time the defendant commits the crime." Id.

at 631 (citing Penn v. State, 13

Ok1.Cr.367, 164 P. 992 (1917) and Alberty

v. State, 10 Okl.Cr. 616, 140 P. 1025

(1914)). Federal courts repeatedly apply

this basic principle of law. In United

States v. Towne, 870 F.2d 880 (2d

Cir.1989), cert. denied, 490 U.S. 1101, 109

S.Ct. 2456, 104 L.Ed.2d 1010 (1989), the

Second Circuit found that the repeal of a

statute prior to the defendant's being

sentenced was inapposite because the

statute was in effect at the time the

47

underlying offenses were committed and at

the time the defendant was convicted. Id.

at 887. See also Burge v. Butler, 867 F.24

247, 250 (Sth Cir.1989).

In addition, 4a review of our

jurisprudence reveals this principle was

part of the legal foundation laid at

statehood. One of the first cases was

Sharp _v. State, 3 Ookl.cr. 24, 104 P.71

(1909). The defendant there committed an

offense while Indian Territory was governed

by the laws of the state of Arkansas. The

defendant did not go to trial until after

Oklahoma had become a state and enacted its

statutes. The question before the Court

was whether the laws of Arkansas or

Oklahoma should be applied. The Court

determined that application of the laws of

the state of Oklahoma would seriously harm

the defendant and the only choice was to

use the laws which controlled at the time

of the offense. Relying on a United States

48

Supreme Court case, Kring v. Missouri, 107

U.S. 221, 2 S.Ct. 443, 27 L.Ed 506 (1883),

the Oklahoma Court stated: "(tjhe accused

should be tried and dealt with under the

law as it existed at the time of the

commission of the crime of which he stands

charged." Sharp, 3 Okl.Cr. at 31, 104 P.

at 74. The Court reiterated this principle

in Bowman when it determined that the

sentence of ten years to life was proper

because "(i)t is a well established rule of

law that the appropriate criminal penalty

is the penalty in effect at the time the

defendant commits the crime." Bowman, 789

P.2d at 631. See also Freshour v. Turner,

496 P.2d 389, 392 (Ok1.Cr.1972) (defendant,

seventeen at the time of offense, not

entitled to benefit of a subsequently

enacted bill which defined the term "child"

as any person under the age of eighteen;

because language in the enactment did not

show it was to be applied retroactively,

a i i

49

the law may be applied prospectively only);

Jones _v. State, 3 Okl.Cr. 593, 107 P. 738

(1910). The irony of the Court's attempt

to apply "fairness" in this case is

revealed by our decision in Costa v. State,

753 P.2d 393 (Okl1.Cr.1986). In that case,

the trial judge sentenced the defendant to

life without parole, which was not a

sentencing option at the time of the crime.

Finding that the trial judge committed

error with sentencing, this Court did not

remand for sentencing, but struck the

"without parole" portion of the sentence

and remanded for the trial court to correct

the error. Id. at 395.

Legal nuances of this type lead to an

anomaly of the law. The anomaly then skews

the principles of law which are to be

applied and creates serious cracks in the

foundation of our jurisprudence. In

addition, it denigrates the principle that

this is a nation of laws, and not of men.

50

This Court, in its analysis, alludes to

the observation that "death is different".

While the final nature of the death penalty

may result in a more microscopic review of

the facts of a case, it does not change

basic principles of the application of a

rule of law, or the manner of consistently

applying the law. The basis of the United

States Supreme Court's overturning the

application of the death penalty in Furman

v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

L.Ed.2d 346 (1972), was there must be a

consistent application of the law, and that

the vague, arbitrary applications of the

penalty be removed. That concept of

consistency in the application of legal

principles must be applied fairly to all

aspects of the review in a criminal case,

whether it applies to the State or a

defendant. For the Court to do otherwise

creates aberrations in the law which impede

51

the orderly, consistent application of the

law in the trial courts of this State.

The actions of the Court in this case,

pursuant to some type of "fairness" review,

disregard the facts of the case. The

Appellant neither objected to the

instructions <¢iven nor requested = an

instruction on this optional punishment.

This Court should never take the position

of trying to reinvent the trial strategy of

an appellant's attorney ina trial. Trial

judges are vested with a dual role of being

fair and applying the law under the

appropriate circumstance. The role of an

appellate judge is to apply the law

consistently and to ensure the rules of law

are set forth to enable trial practitioners

and trial judges to rely on_- those

principles of law in the trial of cases.

While procedural aspects may be declared to

be applicable retroactively, pursuant to 22

0.S.1991, § 3, substantive amendments of

52

the penal statute cannot. The procedure

for conducting a resentencing proceeding is

substantially different than an application

of the penal provision of the statutes

based on when the crime was committed. The

Court's analysis of a substantive provision

skews the rules which apply to the

retroactive effect of procedural matters.

It is in this vein that Allen v. State,

821 P.2d 371 (Ok1.Cr.1991) was incorrectly

decided. For whatever reason, this Court

allowed itself to get sidetracked on an ex

post facto question. Every second-year law

student knows, when dealing with an ex post

facto application, we by definition of the

term necessarily assume that the statute in

question is intended to be _ applied

retroactively. I fear the Court has

confused two entirely different principles

of law. The question here, and the core of

this dissent, is not whether it is

constitutionally permissible to apply a law

53

retroactively, but whether the law was

meant to be applied retroactively at all.

This above discussion and stare decisis

cleariy show that assumption makes Allen

intellectually infirm. But even if this

Court decides to throw out the combined

jurisprudence of this Court since Statehood

on the issue, it cannot overlook its own

ruling in Wade v. State, 825 P.2d 1357,

1363 (Ok1.Cr.1992), which held the option

of life without parole would not be

available if it were not requested by the

defendant at trial. Here, the option was

not requested; yet this Court would reverse

the sentence despite its own more recent

case.

Before Allen the law was clear: the

punishment to be applied was the one in

effect at the time the crime was committed.

Allen created confusion where before there

was none. Wade nurtured that confusion.

But through the fog, a trial court could at

54

least count on one thing; if the option

were requested, it would be given; if not,

it would not be error on appeal. Now this

Court seeks to throw out even that murky

pronouncement. Confusion and inconsistency

make poor bedfellows--especially in a

capital murder case, which will be

litigated for years to come.

"Principles of fundamental fairness" is

an easy solution to the problem this Court

has created by ignoring its own caselaw in

determining "death is different." And as

with many easy solutions, it is neat,

plausible--and wrong. T s@anot agree the

doctrines of this Court are to be chiged

with every succeeding ‘judge, and cannot

join in an opinion that in some vague rush

to "fairness" varies the law to be applied

in such a manner that it is no more

consistent than a Chancellor's foot.

I respectfully dissent.

55

JOHNSON, VICE PRESIDING JUDGE, SPECIALLY

CONCURRING.

I Concur specially with the majority

herein. See my Special Concurrance in

Salazar v. State of Oklahoma, 852 P.2d 729.

NOW on this 14th day of September, 1993,

having examined the Petition for Rehearing

in the above styled and numbered cause, and

being fully advised in the premises, this

Court finds that it should be, and the same

hereby is DENIED. The reasons raised by

the State as justification for the present

petition were addressed in detail in

Sa a v. tate, 852 P.2da 729

(Ok1.Cr.1993). The Clerk of the Court is

directed to issue the mandate forthwith.

IT IS SO ORDERED.

GARY L. LUMPKIN, PRESIDING JUDGE

CHARLES A. JOHNSON, VICE PRESIDING

JUDGE

JAMES F. LANE, JUDGE

CHARLES S. CHAPEL, JUDGE

RETA M. STRUBHAR, JUDGE