Stouffer v. State

1991 OK CR 106, 817 P.2d 1275, 62 O.B.A.J. 3014, 1991 Okla. Crim. App. LEXIS 113

• Court: Court of Criminal Appeals of Oklahoma
• Decided: September 27, 1991
• Docket: PC-88-651
• Status: Published

Opinions

OPINION

JOHNSON, Judge:

Bigler Jobe Stouffer, appellant, was convicted of Murder in the First Degree and Shooting with Intent to Kill in Oklahoma County District Court, Case No. CRF-85-509. He was sentenced to life imprisonment for Shooting with Intent to Kill and death for First Degree Murder. The recommendation of death was based on the jury’s finding that: (1) the murder was especially heinous, atrocious or cruel; (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (3) that the defendant had created a great risk of death to more than one person. This Court affirmed appellant’s judgment and sentence on direct appeal. Stouffer v. State, 738 P.2d 1349 (Okl.Cr. 1987).

On July 31, 1987, this Court granted a rehearing, and determined that the evidence produced at trial did not support the jury’s finding that the murder was especially heinous, atrocious or cruel. This court’s ruling was based upon a limitation of the aggravating circumstance, that a murder was “especially heinous, atrocious or cruel,” to those murders in which the victim suffered torture or serious physical abuse prior to death. Stouffer v. State, 742 P.2d 562 (Okl.Cr.1987). Finding that no torture or serious physical abuse was present in the case, the aggravating circumstance was struck down. Nevertheless, appellant’s sentence of death was upheld because this Court determined that by reweighing the remaining, valid aggravating circumstances against the mitigating evidence, the jury’s finding that the murder was especially heinous, atrocious or cruel was harmless error. Id. at 564.

Appellant petitioned the Supreme Court for a Writ of Certiorari, which was denied. Stouffer v. Oklahoma, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). Appellant then applied for post-conviction relief in the District Court of Oklahoma County, which was denied on July 13, 1988. From this denial of Post-Conviction Relief, appellant appeals to this Court.

Initially, appellant contends that the trial court improperly instructed the jury that they should not allow sympathy to enter into their deliberations. See Parks v. Brown, 860 F.2d 1545 (10th Cir.1988). However, for the reasons stated in Fox v. State, 779 P.2d 562, 575 (Okl.Cr.1989), we find the Instruction given in the present case to be distinguishable from the Instruction struck down in Parks. See also Saffle v. Parks, 494 U.S. 484,-, 110 S.Ct. 1257, 1263, 108 L.Ed.2d 415, 428 (1990). We find no error.

Appellant next contends that this Court erred when it failed to conduct a proportionality review of his sentence. However, this issue was decided against appellant on direct appeal and further consideration is barred by the doctrine of res judicata. See Coleman v. State, 693 P.2d 4, 5 (Okl.Cr.1984).

Appellant asserts that there was insufficient evidence to support the jury’s finding that the murder was “committed for the purpose of avoiding or preventing a lawful arrest or prosecution.” However, this issue was decided against appellant on direct appeal. Coleman v. State, supra.

Appellant next argues that this Court has construed the aggravating circumstance “the defendant knowingly created a great risk of death to more than one person” in an unconstitutionally overbroad manner. However, appellant has waived review of this issue for his failure to raise it on direct appeal. Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr.1985).

Appellant complains that the trial court erred in failing to instruct the jury that there exists a presumption that a life sentence is appropriate. However, appellant has waived review of this issue for his failure to raise it on direct appeal. Jones v. State, supra.

Appellant contends that he was denied his right of confrontation when this Court allowed the State to supplement the record on appeal with an affidavit from appellant’s trial counsel, in their response to appellant’s claim of ineffective assistance of trial counsel. Appellant never objected to the supplementation and we find no error. Jones v. State, supra.

Appellant asserts that he was denied effective assistance of counsel during the second stage of trial. However, this issue was decided against appellant on direct appeal. Coleman v. State, supra.

Appellant next complains that he was denied effective appellate review by this Court because the trial record was incomplete. However, this issue was also decided against appellant on direct appeal. Coleman, supra.

Appellant contends that this Court relied on evidence outside the record in reaching its decision on direct appeal. We find this argument to be without merit.

Appellant also argues that prosecu-torial misconduct during closing argument of the second stage deprived him of a fair trial. However, this issue is waived for appellant’s failure to raise it on direct appeal. Jones v. State, supra.

Appellant further complains that the trial court erred in allowing the jury to hear two tape recorded conversations. However, this issue too was decided against appellant on appeal. Coleman v. State, supra.

Finally, four of appellant’s assignments of error concern this Court’s reweighing analysis announced in Stouffer v. State, 742 P.2d 562, 564 (Okl.Cr.1987). Essentially, appellant contends that this Court should abandon its re weighing analysis. However, in light of the United States Supreme Court ruling in Clemons v. Mississippi, 494 U.S. 738, -, 110 S.Ct. 1441, 1449, 108 L.Ed.2d 725, 739 (1990), we find these arguments to be without merit. The order of Oklahoma County District Court denying appellant’s application for post-conviction relief is AFFIRMED.

LANE, P.J., LUMPKIN, Y.P.J., and BRETT, J., concur. PARKS, J., concurs in part, dissents in part.