# Appendix — Oklahoma v. Hain

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1189%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1025

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1189%3A2. Public record. Not legal advice.