Conoyer v. State

LANE, Judge,

concurring in results:

First, I concur in results to the majority’s treatment of the first proposition wherein the Appellant questions the jurisdiction of the trial court. I would find the Information sufficient on its face and would not go to the issue presented in Parker v. State, 917 P.2d 980 (Okl.Cr.1996).

Second, I disagree with the majority opinion regarding the victim impact evidence issue. The majority fails to distinguish properly between the form, content, and use of victim impact evidence authorized by Title 21 O.S. Supp.1992, § 701.10, and victim impact statements authorized by Title 22 O.S. Supp.1992, § 984, 984.1 and 991a(D).

Section 701.10 allows the presentation of evidence to the jury in the second stage of a capitol murder ease “about the victim and about the impact of the murder on the family of the victim.” The term “evidence” suggests to me the information is to be received in the typical trial format subject to all the relevant rules of evidence and criminal procedure.

Sections 984 and 984.1 authorize the presentation of statements to the sentencing judge at the sentencing proceeding “about *924the •victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim’s opinion of a recommended sentence.” These statements are not evidence, they are not subject to the rules of evidence and they are not admissible at trial. Because they are not to be admitted at trial prior to a sentence determination, they can have no prejudicial effect on the jury or judge at the time sentence is decided.

A hybrid of these two separate and very different entities was presented at trial. An unsworn, prepared statement (Section 984.1) was presented to the jury (Section 701.10) regarding the victim and the impact of the murder on the family of the victim (701.10) and the circumstances surrounding the crime and the manner in which the crime was perpetrated (984.1). The majority correctly finds the information about the circumstances surrounding the crime and manner in which it was committed is not admissible to the jury. Under Section 984.1 this information may be presented only to the sentencing judge. The majority then misses the point entirely by concluding this information “[has] no place in a victim impact statement.”

The majority wrongly believes the Legislature has painted us into a comer, and it disregards much of the Legislative mandate to get us out. In fact, if the majority would give force and effect to all of the Legislative language, it would realize we were not painted into a comer at all.

Admission of the hybrid statement to the jury is error. To determine whether this error warrants reversal, I examine the content of the statements to decide what information could have been before the jury under the authority of Section 701.10.

Under Section 701.10 two kinds of information are admissible: information about the victim and information about the impact of the murder on the family of the victim. The father, mother and brother of Robert Hard-castle read prepared statements which addressed their memories of Robert, and the pain and agony they each experience as a result of his murder. This content is admissible under Section 701.10. I would find no error here.

Each of the prepared statements also contained content unauthorized by Section 701.10: the speaker’s opinion of the circumstances surrounding the crime and the manner in which the crime was perpetrated. These statements called the defendant a blood-thirsty animal who butchered the victim, and each family member asked for the death penalty. These statements are not permissible under Section 710.10. Their presentation to the jury is error.

The majority overreacts when it states this information “[has] no place in a victim impact statement” and completely misunderstands the definition of victim impact statements in Section 984(1) when it opines, “Such comments do not fall under the statutory provision permitting statements on the manner in which the crime was perpetrated. These types of statements are emotionally charged personal opinions which are more prejudicial than probative.” The trial record establishes beyond a doubt Robert Hardcastle was pursued as he tried to escape by running out of his home, and he was savagely attacked with a knife and broken bottle. I certainly find no fault with the descriptions contained in the family members’ statements.

By failing to recognize what the Legislature intended, that these statements are admissible to the sentencing judge and not the jury, the majority solves the problem it created by perverting the definition of the victim impact statement. See 22 O.S. Supp. 1992, § 984.

Victim impact statements address the circumstances surrounding the crime and the manner in which the crime was perpetrated. Id. These legislatively authorized statements are, of necessity and by definition “emotionally charged personal opinions which are more prejudicial than probative.” They provide a means for family members to express to the sentencing judge their anguish. The majority ignores the “circumstances and manner” directive of Section 984(1) and imposes the limits of Section 710.10 when it states the victim impact statement is to be limited to the financial, emotional, psychological and physical impact of the crime. This distortion is wrong. The victim impact statement defined by Section 984(1) expressly in-*925eludes the circumstances surrounding the crime and the manner in which the crime was perpetrated. The victim statements delivered by Mr. Hardcastle’s father, mother and brother were proper victim impact statements, and they should have been presented to the sentencing judge as provided by Section 984(1).

The majority compounds its error by disregarding the force and emotional impact of the father, mother and brother pleading for the death penalty. To find this error harmless, is to disregard these victims in a most cruel way.

In summary, I find the content addressing the circumstances surrounding the crime and the manner of the killing to be proper in a victim impact statement to the sentencing judge, and error when presented to the jury. This error cannot be found harmless beyond a reasonable doubt and warrants vacation of the sentence and remand to the district court for resentencing.

ORDER DENYING REHEARING AND DIRECTING ISSUANCE OF MANDATE

Petitioner was tried by jury and convicted of First Degree Murder (21 O.S.1991, § 701.7), Case No. CRF-94-302, in the District Court of Ottawa County. The jury found the existence of three aggravating circumstances and recommended the punishment of death. The trial court sentenced accordingly. This Court affirmed Petitioner’s conviction but remanded the case to the District Court for resentencing. Conover v. State, 933 P.2d 904 (Okl.Cr. Feb. 21, 1997). Petitioner is now before the Court on a Petition for Rehearing, Rule 3.14(B)(1, 2), Rules of the Court of Criminal Appeals, 22 O.S.Supp.1995, Ch. 18, App. According to Rule 3.14(B)(1, 2), a Petition for Rehearing shall be filed for two reasons only:

(1) That some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or
(2) That the decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.

Petitioner raises three (3) propositions of error claiming in each proposition that our decision is in conflict with a controlling decision to which the attention of this court was not called either in the brief or oral argument. The propositions of error raised by Petitioner are as follows: 1) the decision is in conflict with controlling authority regarding the elements of malice aforethought murder by an aider and abettor; 2) the decision is in violation of the 5th, 6th, and 14th Amendments of the federal constitution, in addition to cases construing the rights afforded therein in that the jury was not instructed on the elements the state was required to prove beyond a reasonable doubt; and 3) the Court’s decision regarding second degree murder is contrary to controlling authority.

We have reviewed Petitioner’s allegations and find that he is not entitled to a rehearing as our decision is not in conflict with controlling decisions from this Court or the United States Supreme Court.

Based upon the foregoing, this Motion for Rehearing is DENIED. The Clerk of this Court is ordered to issue the mandate forthwith.

IT IS SO ORDERED.

/s/ Charles S. Chapel CHARLES S. CHAPEL, Presiding Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Vice Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/ James F. Lane JAMES F. LANE, Judge

/s/ Charles Johnson CHARLES JOHNSON, Judge