Battenfield v. State

• Decision Date: 17 September 1991
• Docket Number: No. F-85-195,F-85-195
• Citation: 826 P.2d 612,1991 OK CR 99
• Parties: Billy Ray BATTENFIELD, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 612

826 P.2d 612

Billy Ray BATTENFIELD, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-85-195.

Court of Criminal Appeals of Oklahoma.

Sept. 17, 1991.

Ordered Published Feb. 10, 1992.

Gloyd L. McCoy, Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen. and Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

ORDER DENYING PETITION FOR REHEARING AND DIRECTING ISSUANCE OF MANDATE

In our opinion in the above styled and numbered cause, this Court affirmed appellant's judgment and sentence of death for his conviction for First Degree Murder. Battenfield v. State, 816 P.2d 555 (Okl.Cr.1991). Therein, we agreed with appellant that the evidence was insufficient to support the jury's finding that the murder was especially heinous, atrocious or cruel. Id., 816 P.2d at 564, 62 OBJ at 2449-50. However, after finding that the record supported the remaining aggravating circumstance--that appellant constituted a continuing threat to society--and ruling that such outweighed the mitigating evidence, this Court held that appellant's sentence of death was factually substantiated and valid. Id., 816 P.2d at 567, 62 OBJ at 2450-51.

In his Petition for Rehearing, appellant first asserts that this Court overlooked a key issue in holding that the evidence was sufficient to support the jury's determination that he constituted a continuing threat to society. That issue concerns incorrect instructions relating to appellant's prior felony conviction. Below is a recitation of the facts relevant to this proposition.

The jury found the existence of two of the four aggravating circumstances alleged in the State's Bill of Particulars. One of the two alleged aggravating circumstances which the jury did not find was that appellant had been "previously convicted of a felony involving the use or threat of violence to the person, to wit: Assault and Battery With a Deadly Weapon After Former Conviction of a Felony...." (O.R. 53). To prove this alleged aggravating circumstance during the second stage of trial, the prosecution introduced the Judgment and Sentence reflecting appellant's prior conviction. Although that Judgment and Sentence revealed that appellant was charged with "Assault and Battery With a Deadly Weapon After Former Conviction of a Felony", it clearly stated that he was convicted of "Assault and Battery With a Dangerous Weapon After Former Conviction of a Felony" (Supp.Record--Judgment and Sentence) (emphasis added).

In several of the prosecutor's arguments early in the second stage of trial (Tr. 1425, 1443-1444) and in the trial court's instructions (O.R. 147, 149), appellant's prior felony conviction was erroneously referred to as Assault and Battery With a Deadly Weapon After Former Conviction of a Felony. After discovering the error, however, the prosecutor informed the jury on three separate occasions that the allegation should read "dangerous" instead of "deadly" weapon. (Tr. 1445, 1452, 1464).

As previously stated, the prior felony conviction was introduced to support the alleged aggravating circumstance that appellant had previously been convicted of a felony involving the use or threat of violence. However, the jury did not find that this aggravating circumstance existed beyond a reasonable doubt and could not have considered it in imposing the sentence of death. Thus, in our original opinion we were not called upon to determine whether the evidence supported this aggravating circumstance or whether the instructions concerning it were erroneous. Rather, we were asked to determine whether the evidence was sufficient to support the jury's determination that appellant constituted a continuing threat to society. While we agree that the instructions concerning the former aggravating circumstance were erroneous, we hereby specifically conclude that such did not effect either the jury's finding that appellant constituted a continuing threat to society or this Court's previous holding that the evidence was sufficient to support said determination.

In reaching our conclusion that the evidence supported the jury's finding that appellant constituted a continuing threat, this Court relied primarily upon the evidence which demonstrated the "calloused nature" of the crime. Battenfield, 816 P.2d at 566, 62 OBJ at 2450-51. We also noted that the State "introduced evidence that appellant had previously been convicted of Assault and Battery With a Dangerous Weapon, After Former Conviction of a Felony." Id., 816 P.2d at 566, 62 OBJ at 2451. Notwithstanding that the instructions concerning the "prior violent felony" aggravating circumstance were erroneous, the jury was presented with the actual Judgment and Sentence for the prior felony which clearly revealed the correct conviction. Furthermore, as previously discussed, the prosecutor specifically apprised the jury on three occasions of the correct allegation. Accordingly, this proposition of error is dismissed.

Appellant further alleges in his petition that this Court's consideration of his prior felony conviction is in conflict with a controlling decision to which our attention was not...