Malone v. State
| Decision Date | 14 October 2002 |
| Docket Number | No. F-2000-1585.,F-2000-1585. |
| Citation | 2002 OK CR 34,58 P.3d 208 |
| Parties | Gregory Kyle MALONE, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Julie O'Connell, Office of the Public Defender, Tulsa, OK, for Appellant at Trial.
Larry Edwards, Assistant District Attorney, Tulsa, OK, for the State at Trial.
Paula J. Alfred, Stephen J. Greubel, Stuart W. Southerland, Assistant Public Defenders, Tulsa, OK, for Appellant on Appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Kellye Bates, Assistant Attorney General, Oklahoma City, OK, for the State on Appeal.
Robert A. Ravitz, Oklahoma County Public Defender, Oklahoma City, OK, James D. Bednar, Executive Director, Oklahoma Indigent Defense System, Norman, OK, Amicus.
¶ 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 fine 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 cases 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.
¶ 1 I concur in the Court's Opinion on Rehearing as it relates to the affirmance of the conviction and the sentences imposed by the trial court. I respectfully dissent to the Opinion on Rehearing and the changes that have been made since the original summary opinion.
¶ 2 Some years ago, Judge James Lane, a former member of this Court, proposed that all trials be two-stage trials. His reasoning had to do with the fact that aggravating evidence could come in during a one-stage trial. A defendant could be found guilty based upon the aggravation and not for the charged crime. He pointed out that in a bench trial after the judgment of the court, the defendant has the right of allocution and can present mitigating evidence to the court that the court can consider in the sentencing. This now seems reasonable. In the original summary opinion, as Judge Chapel points out in his dissent, Oklahoma law does not allow a trial judge to modify the jury's sentence. He notes this modification can only come in a bench trial. 22 O.S.1991, § 973.
¶ 3 After a jury sentence, justice demands that a defendant have a right to present mitigating evidence to the court. The State should also have the right to present any aggravating evidence. The court could get a pre-sentence report, and the judge has the right to modify the sentence or even increase the sentence. It is my hope that the legislature would enact a statute that would allow this procedure. If this were done, you would not need the two-stage trial as set forth in our original summary opinion. You would truly have allocution.
¶ 4 I am a great believer in the judicial system and the wisdom of judges who have been on the bench and heard numerous cases. With very few exceptions, their judgments are wise and the sentences given may be fairer than those of a jury who may be mad at the defendant or his or her attorney or something that has occurred in the case that makes the jury's sentence excessive. Hopefully the Legislature will cure this ill. This state should have a system where the jury finds guilt; the judges give the sentence after allocution.
¶ 1 Malone filed an appeal raising one proposition of error — that the trial court precluded the admission of mitigating circumstances relevant to the jury's exercise of discretion. The issue presented is whether mitigating evidence should be presented, in non-capital felony trials, as a part of a criminal defendant's right to individualized jury sentencing. The majority opinion substituted here for this Court's original published opinion fails to answer that question. The opinion merely concludes that character evidence is not admissible in either guilt or sentencing proceedings.2 I would address the question and find Malone's right to individualized sentencing was violated. As no procedure currently allows criminal defendants the opportunity to exercise this right, I believe this Court is required to fashion such a procedure. After considering all the arguments submitted to the Court, I would adopt a second, sentencing, stage in non-capital felony proceedings, during which the jury may hear evidence in aggravation and mitigation of the crime, in order to assist in the determination of an appropriate individualized sentence.
¶ 2 As the State admits, the traditional practice of individualized sentencing in non-capital criminal cases is "conceptually favorable and well-grounded in notions of fairness and justice."3 There is of course a qualitative difference between sentencing in non-capital and capital cases, where the constitution requires individual consideration of the characteristics of the defendant and the circumstances of the offense.4 The United States Supreme Court discussed the historical use of individualized sentencing:
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