Bush v. State , 2012 Okla. Crim. App. LEXIS 7 ( 2012 )

SMITH, J.,

Concurring in Result.

T1 I concur in the Court's decision to affirm the convictions in this case. However, I dissent to the Court's treatment of the continuing threat aggravating cireumstance. The trial court ruled that the testimony of the "jail house snitch," Jackie Nash, was inadmissible and sustained Bush's motion to bar the witness's testimony because no notice was given to Bush regarding this evidence in aggravation. Despite this ruling, the trial court allowed the State to make an offer of proof regarding the substance of Nash's testimony. This offer of proof was extremely prejudicial and contained evidence that was not known to the Court through any other witness or document. As pointed out by Bush, the State had no appeal of this ruling of the Court and the ruling did not depend on the content of the testimony, hence there was no reason for the court to allow this very extensive and prejudicial offer of proof. The trial court enjoys the presumption that only competent and admissible evidence was considered, but it is difficult to believe that this evidence could be ignored. I cannot find that there is no reasonable probability that the evidence did not impact the trial court's decision to sentence Bush to death.