Eddings v. State

1984 OK CR 79, 688 P.2d 342, 1984 Okla. Crim. App. LEXIS 191

Opinions

OPINION

BRETT, Judge:

On April 4, 1977, the appellant, a sixteen-year-old juvenile, shot and killed Highway Patrol Trooper Crabtree on the Turner Turnpike with a sawed-off .410 gauge shotgun. The crime occurred when Trooper Crabtree stopped appellant for a routine traffic violation. After the juvenile was certified to stand trial as an adult and the certification order was affirmed by this Court, In re M.E., 584 P.2d 1340 (Okl.Cr.1978), appellant, upon advice of counsel, waived a jury trial and entered a plea of nolo contendere. At the conclusion of the presentation of evidence relevant to sentencing, the trial court imposed the death sentence. That sentence was appealed to this Court and was affirmed. Eddings v. State, 616 P.2d 1159 (Okl.Cr.1980).

Thereafter, appellant sought and was granted a writ of certiorari by the United States Supreme Court in Eddings v. Oklahoma, 450 U.S. 1040, 101 S.Ct. 1756, 68 L.Ed.2d 237 (1980). The Honorable United States Supreme Court reversed our affirmance of the death penalty for the reason that, in their opinion, both the trial court and this Court violated the rule of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), by placing limitations upon the mitigating circumstances to be considered. The Supreme Court directed that “[o]n remand, the State courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances.” Eddings v. State, 455 U.S. 104, 117, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). As this Court does not weigh evidence, see, e.g., Woods v. State, 569 P.2d 1004 (Okl.Cr.1977); Tharps v. State, 555 P.2d 1054 (Okl.Cr.1976), we remanded the case to the Creek County District Court for further proceedings in accordance with the directions of the United States Supreme Court. On August 25 and 26, 1982, the district court¹ heard additional evidence presented by appellant and again imposed the death penalty. From the order of August 26, 1982, this appeal has been lodged.

We now realize that it was error to remand the case to the district court for resentencing and that the death sentence must be modified to life imprisonment.

Upon rehearing Johnson v. State, 665 P.2d 815 (Okl.Cr.1982) we stated the following:

We are now convinced that a plain reading of 21 O.S.1981, § 701.13, does not authorize this Court to remand a death case, tried before a jury, solely for a resentencing before a different jury, even when error occurs only in the sentencing stage. Section 701.13(E) provides that with regard to review of death sentences this Court shall be authorized to:

1. Affirm the sentence of death; or

2. Set the sentence aside and remand the case for modification of the sentence to imprisonment for life.

Therefore, since this Court is unwilling to speculate as to the effect the improper aggravating circumstance, murder for remuneration, had on the jury’s recommendation to impose the death penalty, we find it necessary to modify the sentence to life imprisonment in accordance with Section 701.13(E). When prejudicial error occurs in the sentencing stage of the trial only, this Court has consistently modified the death sentence to life imprisonment and otherwise affirmed. See Odum v. State, 53 O.B.A.J. 2264, 651 P.2d 703 (Okl.Cr.1982); Burrows v. State, 640 P.2d 533 (Okl.Cr.1982); Irvin v. State, 617 P.2d 588 (Okl.Cr.1980). See also our opinion handed down today in Boutwell v. State, 659 P.2d 322 (Okl.Cr.1983), in which this Court reached the same result on these grounds.

Id. at 827.

Although Johnson has heretofore been limited in application to those cases in which the sentence is set by a jury, we believe that equal protection and due process require that the procedure obtain equally in cases in which the judge determines the sentence.

In finding Oklahoma’s Habitual Criminal Sterilization Act unconstitutional, the United States Supreme Court stated:

The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208. Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks.... Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn. See Smith v. Wayne Probate Judge, 231 Mich. 409, 420, 421, 204 N.W. 140, 40 A.L.R. 515.

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942).

We find Skinner analogous to the present ease. Two people can commit identical offenses, and if one is sentenced by a jury and one is sentenced by the trial court with identical errors occurring in both sentencing stages, one is guaranteed modification to life imprisonment while the other may yet be sentenced to death. This distinction presents a grossly unfair, unequal application of the law, especially since those who plead guilty or nolo contendere are not entitléd to be sentenced by a jury. See 21 O.S. 1981, § 701.10. All cases in which error occurred only in the sentencing stage should be remanded for resentencing or none should be.

Inasmuch as this Court is without authority to remand jury-tried cases for resentencing under these circumstances, we must also modify to life imprisonment cases where the trial court erred in its imposition of the death penalty. Equality in appellate disposition is especially important in this area as defendants who plead guilty or nolo contendere are not entitled to be sentenced by a jury. See 21 O.S. 1981, § 701.10.

The death penalty rendered in this case must be, and hereby is, MODIFIED to life imprisonment. The other assignments of error raised need not be discussed in light of this decision.

PARKS, J., specially concurs. BUSSEY, P.J., dissents.

Footnotes

1

. On May 3, 1982, appellant sought issuance of the writ of prohibition in this Court to prevent the Honorable Charles S. Woodson from hearing the case on remand, insofar as he was the trial judge at appellant’s trial. This Court denied the writ.