Cheney v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: CHAPEL
• Citation: Cheney v. State, 909 P.2d 74, 1995 OK CR 72 (Okla. Crim. App. 1995)
• Decision Date: 08 December 1995
• Docket Number: No. F-94-220,F-94-220
• Parties: Garry Michael CHENEY, Appellant, v. The STATE of Oklahoma, Appellee.

Page 74

909 P.2d 74

Garry Michael CHENEY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-94-220.

Court of Criminal Appeals of Oklahoma.

Dec. 8, 1995.

An Appeal from the District Court of Tulsa County; B.R. Beasley, District Judge.

Mark Lyons, Kevin Danielson, Lyons & Clark, Tulsa, for defendant at trial.

A.J. Schultz, Sarah Day Smith, Assistant District Attorneys, Tulsa County District Attorney's Office, Tulsa, for state at trial.

Jamie D. Pybas, Assistant Appellate Defender, Capital Direct Appeals Division Oklahoma Indigent Defense System, Norman, for appellant on appeal.

Susan B. Loving, Attorney General of Oklahoma, A. Diane Blalock, Assistant Attorney General, Oklahoma City, for appellee on appeal.

OPINION

CHAPEL, Vice Presiding Judge.

Garry Michael Cheney was tried by a jury in Tulsa County District Court, Case No. CF-93-2001, and convicted of First Degree Malice Aforethought Murder, in violation of 21 O.S.1991, § 701.7. ¹ After the jury found Cheney guilty of murder, his case proceeded to the capital sentencing phase of trial to determine whether Cheney should be sentenced to life imprisonment, life imprisonment without the possibility of parole, or death. In support of its request for the death penalty, the State alleged three aggravating circumstances: (1) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; ² (2) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; ³ and (3) the murder of the victim was especially heinous, atrocious or cruel involving mental and/or physical torture. ⁴ The jury found only one aggravating circumstance--that the murder was committed in an especially heinous, atrocious or cruel manner--and sentenced Cheney to death. In accordance with the jury verdict, the Honorable B.R. Beasley imposed the death penalty. Cheney appealed his murder conviction and death sentence to this Court. We affirm Cheney's murder conviction; however we modify Cheney's death sentence to life imprisonment without the possibility of parole because the evidence was legally insufficient to support the imposition of the death penalty in this case.

FACTS

Shortly after 5:00 p.m. on Friday, April 30, 1993 Cheney shot and killed his wife, Margaret Cheney, in the parking garage at the Occidental Oil and Gas ("Oxy") building in downtown Tulsa. Earlier that afternoon, Cheney purchased a .45 caliber pistol and black Talon bullets from the Golden Pawn pawnshop. Several witnesses testified they saw Cheney in the parking garage earlier that afternoon.

Claudia Teipel was in the Oxy parking garage at approximately 5:04 p.m. that Friday afternoon. As she approached her car on level H of the garage, Teipel noticed a woman and a man one level up from her. The woman was spraying the man in the face with a substance that Teipel believed to be mace or a similar substance. Teipel estimated the woman sprayed the man for ten seconds. The woman's back was to Teipel and the man was facing her. The man had his hand on the woman's elbow and Teipel heard the woman saying "he-he-he-he-he." ⁵ Teipel did not see the man strike the woman, she did not see a gun and she did not hear the man say anything. After spraying the man in the face, the woman ran down the ramp toward Teipel's car and the man ran after her. Teipel saw the woman fall, then heard a gunshot. At that point, Teipel crouched behind her car. She could see the man standing over the woman with his arm extended and heard him fire several more shots. Teipel stated there was a pause between the first shot and the remaining shots, and estimated the pause lasted two to three seconds. Teipel also testified the time between the first and last shot was three to four seconds. After the shots were fired, Teipel got up, ran towards the woman and concluded the woman was dead.

Gary Sheets was also in the parking garage at the time of the shooting. He testified he heard a woman scream then saw a woman run down the ramp in front of him. Sheets stated a man ran behind the woman then caught up with her. After that point, however, Sheets was unclear about what happened. Sheets said he heard a loud noise, saw the man standing over the woman, then heard more loud noises. Sheets honked his horn when he realized the man was shooting the woman. Sheets stated the man crouched down and ran towards the stairwell. Sheets estimated the whole incident lasted twenty seconds and stated the time between the first and last shot was five seconds.

Other witnesses also heard shots fired in the Oxy parking garage shortly after 5:00 p.m. that Friday afternoon. Witnesses testified they heard one shot then a pause followed by several other shots. One witness testified the time lapse between the first and last shot was four seconds; another witness testified the time lapse was five to six seconds.

In addition to these facts, the State introduced evidence that Cheney and his wife were going through a divorce at the time of Margaret Cheney's murder. In February 1993, Mrs. Cheney filed for divorce and sought a protective order limiting Cheney's contact with her. ⁶ Allen Smallwood, who was Mrs. Cheney's divorce attorney, testified the parties agreed to the protective order. Smallwood stated it was unlikely that such order would have been granted if Cheney had contested it because there was no direct evidence of physical abuse prior to the issuance of the order.

There was also evidence that Cheney went to his wife's house on March 31--one month before her death. At that time, Cheney struggled with his wife. During the sentencing phase of trial, Cheney admitted he had a gun during the March 31 incident.

On April 1, Cheney checked into Brookhaven Hospital where he was treated for manic-depression. Brookhaven released Cheney on April 16. Cheney had no contact with his wife from March 31 until April 30, when he confronted and killed her in the Oxy parking garage.

CAN THE DEATH PENALTY BE IMPOSED IN THIS CASE?

The key question in this case is whether Cheney can be sentenced to death for the murder of his wife. The general perception is that since our state law provides the death penalty for first degree murder, anyone convicted of that crime can be (and many believe should be) sentenced to death. This attitude is understandable given the horror of violent crime and the increasing public fear of senseless, tragic criminal acts. However, the United States Supreme Court has interpreted the Eighth Amendment to the United States Constitution to mean that the death penalty may only be imposed upon those few murderers who are deemed the worst of the worst murderers. ⁷ Oklahoma, like all states, is bound by the Supreme Court's interpretation of the Eighth Amendment.

In accordance with its interpretation of the Eighth Amendment, the Supreme Court requires states to employ principled, rational, non-arbitrary systems for discerning those few murderers who should be sentenced to die from the many murderers who are punished by a term of life imprisonment. To comply with this constitutional requirement, Oklahoma, like many other states, uses a two-step capital sentencing process. First, the jury determines whether the murder or murderer falls under one of the State's statutory aggravating circumstances. ⁸ Aggravating circumstances are used to separate those few murder cases in which the defendant is eligible for the death penalty from the many cases in which the death penalty is inappropriate. ⁹ Once the jury determines that one or more aggravating circumstances are applicable to a particular case, the defendant is deemed eligible for the death penalty. However, even at this point the death penalty is not automatically applied. The jury must balance the mitigating factors surrounding the murder and the defendant against the aggravating circumstances of the crime and decide whether or not the death penalty is truly appropriate in an individual case. ¹⁰

This system for determining who should be punished by death is confusing and difficult to apply, ¹¹ and it has been the source of much litigation. ¹² This Court is often faced with the arduous task of parsing through the facts of some horrible, tragic crime to determine whether the defendant should be eligible for the death penalty and ultimately selected to die. When it is clear that the death penalty should not be applied in a given case, this Court must remedy that error.

In this case, there is no doubt Cheney is guilty of First Degree Murder. The evidence, as we have set forth above, clearly proved Cheney killed his wife with malice aforethought. Nonetheless, Cheney's murder of his wife--while horrible and tragic--does not qualify for the death penalty under Oklahoma's aggravating circumstances. Rather Cheney should have been, and now must be, sentenced to life in prison without the possibility of parole. An examination of the law and facts in this case make clear why this ruling is necessary and inevitable.

The jury in this case imposed the death penalty based solely on the especially heinous, atrocious or cruel aggravating circumstance. In the fourteenth proposition of his appellate brief, ¹³ Cheney alleges the evidence was insufficient to show that the murder of his wife was especially heinous, atrocious or cruel as that aggravating circumstance has been interpreted by this Court and by the United States Supreme Court. He is correct.

The especially heinous, atrocious or cruel aggravating circumstance has come under close scrutiny by the Supreme Court. In Maynard v. Cartwright, ¹⁴ the Supreme Court found this aggravating circumstance was unconstitutionally vague under the Eighth Amendment of the federal constitution. The Court made clear that not every murder could fall under the especially heinous, atrocious or cruel aggravating circumstance and that Oklahoma must construe this aggravating circumstance so that...