Castro v. State

Decision Date24 November 1987
Docket NumberNo. F-84-378,F-84-378
Citation749 P.2d 1146
PartiesJohn W. CASTRO, Sr., Petitioner, v. The STATE of Oklahoma, Respondent.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION ON REHEARING

PARKS, Judge:

Petitioner filed a petition for rehearing in this Court in the above-styled cause. Petitioner primarily challenges the validity of his death sentence, and we limit our discussion to the issues we deem relevant to that issue, having found that the other assignments were properly addressed and decided in our original opinion. The Oklahoma County Public Defender's Office has filed an amicus curiae brief, which we have used only insofar as it is relevant to the issues raised by petitioner.

I.

The first issue presented is whether petitioner's death sentence must be vacated because one of the two statutory aggravating circumstances found by the jury was invalidated by this Court on direct appeal, even though the other aggravating circumstance was upheld. According to the United States Supreme Court, the answer depends on the function of the jury's finding of aggravating circumstances under Oklahoma's capital sentencing statute, and on the reasons why the aggravating circumstance at issue in this particular case was found to be invalid. See Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 3426, 77 L.Ed.2d 1134 (1983); Zant v. Stephens, 462 U.S. 862, 864, 103 S.Ct. 2733, 2736, 77 L.Ed.2d 235 (1983). Accord Andrews v. Shulsen, 802 F.2d 1256, 1263 (10th Cir.1986), cert. denied, 481 U.S. 1033, 107 S.Ct. 1964, 95 L.Ed.2d 536 (1987). The United States Supreme Court addressed this question under Georgia law in Zant and under Florida law in Barclay and Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983).

A.

We address first the function of the jury's finding of an aggravating circumstance under 21 O.S. 1981, §§ 701.10-701.11. Although the punishment for first degree murder in Oklahoma shall be life imprisonment or death under 21 O.S. 1981, § 701.9, the sentencer, whether judge or jury, cannot impose the penalty of death unless it unanimously designates in writing that it has found at least one statutory aggravating circumstance beyond a reasonable doubt. See 21 O.S. 1981, § 701.11. In addition, under Section 701.11, the sentencer is required to weigh aggravating and mitigating circumstances, because the death penalty shall not be imposed if the sentencer finds that aggravating circumstances are outweighed by mitigating circumstances. Oklahoma's capital sentencing scheme is thus different from Georgia's insofar as the sentencer in Oklahoma is required to balance aggravating and mitigating circumstances in determining whether a sentence of death is appropriate. See Zant, 462 U.S. at 873-74, 103 S.Ct. at 2741. In fact, the Court expressly noted in Zant that it did "not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is 'invalid' under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory and mitigating circumstances in exercising its discretion whether to impose the death penalty." Zant, 462 U.S. at 890, 103 S.Ct. at 2750. Thus, Zant does not definitively answer the question presented.

Following Zant, however, the United States Supreme Court decided Barclay and Goode. Florida, like Oklahoma, uses aggravating circumstances to guide the discretion of the sentencer and "requires the sentencer to balance statutory aggravating circumstances against all mitigating circumstances...." Barclay, 463 U.S. at 954, 103 S.Ct. at 3427. In Barclay, the United States Supreme Court approved the Florida Supreme Court's application of a harmless-error rule whereby the invalidation of one aggravating circumstance will be held to be harmless (and thus resentencing not required), so long as no mitigating circumstances were present. Barclay, 463 U.S. at 955, 966 n. 12, 103 S.Ct. at 3427, 3428 (plurality of four and two justices concurring). Following Barclay, the Court went a step further and refused to vacate a death sentence in a case where the Florida Supreme Court had held that the sentencer's improper consideration of an aggravating circumstance did not invalidate a death sentence or constitutionally impermissibly infect the balancing process where the Florida Supreme Court's independent reweighing of the aggravating and mitigating circumstances determined that the death penalty was appropriate, after excluding the improper aggravating circumstance from consideration. See Wainwright v. Goode, 464 U.S. 78, 86-87, 104 S.Ct. 378, 383, 78 L.Ed.2d 187 (1983). Unlike Barclay, 463 U.S. at 944, 103 S.Ct. at 3422, where no mitigating circumstances were present, the sentencer in Goode found two mitigating circumstances. Goode, 464 U.S. at 80, 104 S.Ct. at 380. The per curiam opinion in Goode, stated that "[w]hatever may have been true of the sentencing judge, there is no claim that in conducting its independent reweighing of the aggravating and mitigating circumstances the Florida Supreme Court considered [an invalid aggravating circumstance]." Goode, 464 U.S. at 86-87, 104 S.Ct. at 383. Accordingly, the death sentence was constitutionally permissible.

We find that Barclay and Goode, when read together, make clear that a state appellate court may constitutionally independently reweigh aggravating and mitigating circumstances to determine whether a death sentence must be vacated as arbitrary and capricious, in light of a finding on appeal that a particular aggravating circumstance, which was considered by the sentencer, was not supported by sufficient record evidence. We believe that this independent reweighing under such circumstances provides a rational safeguard for the constitutional requirement "that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion." California v. Brown, --- U.S. ----, ----, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987). We further find that the foregoing analysis supports the constitutionality of this Court's recent decision in Stouffer v. State, 742 P.2d 562 (Okla.Crim.App.1987) (Opinion on Rehearing), holding that an independent reweighing of aggravating and mitigating circumstances is implicitly necessary to a determination that a death sentence be factually substantiated and valid pursuant to this Court's duty to conduct a mandatory capital sentencing review under 21 O.S. 1981, § 701.13(F). As the plurality stated in Barclay, "[t]here is no reason why the [state court] cannot examine the balance struck by the [sentencer] and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance." Barclay, 463 U.S. at 958, 103 S.Ct. at 3429.

B.

We now turn to a consideration of the reasons why the aggravatingcircumstance at issue in this particular case was found to be invalid. Here, we found that the medical examiner's preliminary hearing testimony was improperly admitted during the guilt-innocence stage of the trial, because the State had failed to meet the requirement of due diligence in making a good-faith effort to obtain Dr. Dibdin's presence at trial. Castro v. State, 745 P.2d 394, 401 (Olka.Crim.App.1987). Dr. Dibdin's preliminary hearing testimony, which was read to the jury during the guilt-innocence stage, and incorporated by reference during the sentencing stage, was primarily limited to describing the nature and extent of the injuries suffered by the victim, Rhonda Pappan, and listing the cause of death as multiple stab wounds. (PH Tr. 80-92) At one point, Dr. Dibdin did describe a stab wound to the lung cavity as causing "a tremendous degree of shock and pain...." Contrary to the prosecutor's comments during closing argument, which issue was sufficiently addressed in our original opinion, the medical examiner never testified that the victim died a "slow" death. Although we found that the medical examiner's preliminary hearing testimony was improperly admitted during the guilt-innocence stage as a violation of the principles enunciated in Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968), see Castro, supra, the Federal Constitution "does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating or statutory mitigating factors, so long as that information is relevant to the character of the defendant or the circumstances of the crime." Barclay, 463 U.S. at 967, 103 S.Ct. at 3433 (Stevens, J., concurring). See Gregg v. Georgia, 428 U.S. 153, 164, 196-97, 206, 96 S.Ct. 2909, 2920-21, 2936, 2940-41, 49 L.Ed.2d 859 (1976). "What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant, 462 U.S. at 879, 103 S.Ct. at 2743-44 (emphasis in original). Here, the medical examiner's testimony was directly related to the existence or nonexistence of the heinous, atrocious or cruel aggravating circumstance. On the basis of the foregoing, the medical examiner's testimony was arguably relevant and admissible during the sentencing stage under Zant and Barclay, to enable the jury to make an individualized determination. In any event, we invalidated the heinous, atrocious or cruel aggravating circumstance because, excluding the medical examiner's preliminary hearing testimony, there was simply not sufficient evidence from which a rational trier of fact could find the existence of that aggravating circumstance beyond a reasonable doubt. It is significant that the jury, in evaluating the existence of the...

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