Nuckols v. State , 62 O.B.A.J. 456 ( 1991 )

LUMPKIN, Vice Presiding Judge:

concurring in results.

I concur in the results reached by the Court in this matter, however, I must dissent to the analysis of OUJI-CR 436 adopted by the Court. It is apparent on the face of OUJI-CR 436 that the analysis is not defendable under close scrutiny. The analysis assumes that a jury has the benefit of more instructions than those actually given and the jury is guided to the second paragraph first. I realize this process might be the process this Court utilizes in analyzing a case of this type, but the instructions do not tell the jury to follow the step by step analysis the opinion proposes. For example, the opinion states “[t]he jury is told by the second paragraph that they must first find that the ‘death of the victim was preceded by torture of the victim or serious physical abuse’.” (emphasis added). However, OUJI-CR 436 does not require the jury to first find torture or serious physical abuse. My concern is that we cannot assume the jury follows the same process we might follow as they apply the instructions as they are actually given. In addition, this analysis is not consistent with the analysis of the Court in Stouffer v. State, 742 P.2d 562, 563 (Okl.Cr.1987).

It is clear that OUJI-CR 436 contemplates a two-step analysis. The first paragraph sets forth specific definitions for the terms of this aggravating circumstance. By looking to this paragraph first, the jury is informed of the meanings to be placed upon the words heinous, atrocious and cruel within the context of the law. These definitions provide a foundation for the jury to then consider the second paragraph. The second paragraph directs the jury to limit the application of the above defined terms to murders where there is torture or serious physical abuse of the victim. It is this second paragraph which objectively guides the jury’s consideration of this aggravating circumstance. Id. See also Foster v. State, 779 P.2d 591, 593 (Okl.Cr.1989). This procedure of applying the specifically defined terms, as set forth in the first paragraph, to the limited class of crimes, as set forth in the second paragraph, is constitutionally valid. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

In addition to validating the guidance given to the jury in this ease, this Court has determined that an independent reweighing of aggravating and mitigating circumstances is implicit to our statutory duty to determine the factual substantiation of the verdict and the validity of the death sentence. Stouffer at 564. See also Castro v. State, 749 P.2d 1146 (Okl.Cr.1988). The United States Supreme Court validated these decisions through its approval of appellate weighing and reweighing of the aggravating and mitigating circumstances in Clemons v. Mississippi, 494 U.S. —, —, 110 S.Ct. 1441, 1449, 108 L.Ed.2d 725, 739 (1990). I find, after independently weighing the evidence supporting the aggravating circumstance of especially heinous, atrocious or cruel against the mitigating evidence presented at trial, that the sentence of death is factually substantiated and appropriate.