Malone v. State

2002 OK CR 34, 58 P.3d 208, 2002 WL 31296562

• Court: Court of Criminal Appeals of Oklahoma
• Decided: October 22, 2002
• Docket: F-2000-1585
• Status: Published

Opinions

OPINION ON REHEARING

LUMPKIN, Presiding Judge:

¶ 1 Appellant, Gregory Kyle Malone, was tried by jury and convicted of First Degree Burglary (Count I), in violation of 21 O.S. 1991, § 1431, First Degree Rape (Count II), in violation of 21 O.S.1991, § 1114, and Sexual Battery (Count III), in violation of 21 O.S.Supp.1999, § 1123(B), all after former conviction of two or more felonies, in the District Court of Tulsa County, Case No. CF-99-6051. The jury set punishment at twenty (20) years imprisonment and a $10,000 fine on Count I, fifty (50) years imprisonment and a $10,000 fíne on Count II, and (20) years imprisonment and a $10,000 fine on Count III. The trial judge, the Honorable Thomas C. Gillert, sentenced Appellant accordingly and ordered the sentences to be served consecutively.

¶ 2 Malone appealed to this Court, and raised one proposition of error. He was denied a fair sentencing proceeding when the trial court precluded the admission of mitigating evidence relevant to the jury’s exercise of discretion. We rejected this claim in our Summary Opinion of March 18, 2002, and affirmed Appellant’s convictions and sentences. The Summary Opinion adopted a new approach to the concept of allocution and the ability of a non-capital defendant to present mitigating and aggravating evidence in the sentencing stage of a bifurcated jury trial, after the jury’s verdict. It also found that a trial court “has the power and is authorized to reject a jury’s recommended sentence and modify the sentence upwards or downwards.... ” The Summary Opinion was thereafter published. See Malone v. State, 2002 OK CR 14.

¶3 Malone filed a Petition for Rehearing on April 8, 2002, pursuant to Rule 3.14(B)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002). Therein, he claimed we had overlooked a decisive question in the case. The Office of the Oklahoma County Public Defender simultaneously filed a “Motion to File Amicus Brief in Support of Rehearing.” This Court granted rehearing in its order of June 5, 2002. In so doing, we granted the Public Defender’s motion to file an amicus brief and invited the State to file one as well.¹

¶ 4 Having further reviewed the issue at hand, the applicable authorities, and the additional briefs filed by Appellant, the State Attorney General, and the Oklahoma County Public Defender, we hereby order that our Summary Opinion of March 18, 2002 is stricken, removed from publication, and superceded by this Opinion on Rehearing in its entirety, including all matters .pertinent to the issue Appellant raised in his original appeal.

¶ 5 Defendants in criminal trials deserve to have their day in court, to require the State to meet its burden of proof through evidence presented in open court, to tell their stories, and to defend themselves against the crimes of which they have been charged. The Oklahoma Legislature defines how and when defendants accomplish those purposes. In the instant case, Appellant was not denied a fair sentencing hearing by the trial judge’s decision to preclude Appellant from presenting mitigating evidence to the jury at his non-capital sentencing proceeding.

¶ 6 Oklahoma’s criminal statutes allow non-capital defendants, at the time of formal sentencing, to explain to the trial judge “any legal cause” they have why judgment should not be pronounced against them. 22 O.S. 2001, § 970. But 22 O.S.2001, § 971 qualifies the phrase “any legal cause” by giving specific grounds for such a showing of cause, i.e., insanity and those grounds that would support a motion for new trial in'22 O.S.2001, § 952. This appears to be a purely legal matter-except where there is the discovery of new evidence-and the full extent of “allocution” provided under Oklahoma law, except as set forth below.

¶ 7 22 O.S.2001, § 973 allows “either party” at the sentencing stage to raise “circumstances which may be properly taken into view, either in aggravation or mitigation of punishment,” but only in those eases where the issue of punishment has been left to the judge. In all other cases, i.e., when the defendant has demanded the jury to assess punishment or the trial judge has allowed the jury to assess punishment, there simply is no provision allowing for mitigating evidence to be presented in the sentencing stage of the trial. This is a limitation enacted by our Legislature, and the limitation is undoubtedly constitutional.

¶8 Certain evidence that may be in fact “mitigating” or “aggravating” will inevitably be introduced throughout any trial, although that evidence is admitted to prove the elements of the crime, to support a legal defense, or to impeach a witness. A criminal defendant’s story will in fact be told, by the witnesses he or she chooses and through his or her own testimony. But a criminal trial is not to be based upon so-called “character” evidence, and the same principle applies to sentencing proceedings.

DECISION

¶ 9 The judgments and sentences are hereby AFFIRMED.

STRUBHAR and LILE, JJ.: concur. JOHNSON, V.P.J.: concur in part/dissent in part. CHAPEL, J.: dissent.

1 . We want to compliment the parties and Amicus for providing the Court with insightful, professional analysis of the legal issues presented through their respective briefs.