Riggs v. Branch

• Decision Date: 02 September 1976
• Docket Number: No. H--76--536,H--76--536
• Citation: 1976 OK CR 216,554 P.2d 823
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Jackie R. RIGGS, Petitioner, v. Billy J. BRANCH, Sheriff, Garvin County, State of Oklahoma, Respondent.

Page 823

554 P.2d 823

Jackie R. RIGGS, Petitioner, v. Billy J. BRANCH, Sheriff, Garvin County, State of Oklahoma Respondent.

No. H--76--536.

Court of Criminal Appeals of Oklahoma.

Sept. 2, 1976.

Don Hamilton and Michael Gassaway, and Phillip Lambert, Oklahoma City, for petitioner.

Larry Derryberry, Atty. Gen., Frank Muret, Asst. Atty. Gen., for respondent.

OPINION

PER CURIAM:

Jackie R. Riggs petitions this Court for a writ of habeas corpus, requesting that he be released from illegal restraint by the above named respondent as he is being held to answer the charge of Murder in the First Degree, 21 O.S.Supp.1973, § 701.1, filed by preliminary information in the Garvin County District Court and that this Statute has been declared unconstitutional by the United States Supreme Court on July 6, 1976, in Williams v. Oklahoma, 75--6639, --- U.S. ---, 96 S.Ct. 3218, 49 L.Ed.2d ---; Justus v. Oklahoma, 75--6452, --- U.S. ---, 96 S.Ct. 3216, 49 L.Ed.2d ---; Rowbotham v. Oklahoma, 75--6638, --- U.S. ---, 96 S.Ct. 3218, 49 L.Ed.2d ---; Lusty v. Oklahoma, 75--6453, --- U.S. ---, 96 S.Ct. 3217, 49 L.Ed.2d ---; Green v. Oklahoma, 75--6451, --- U.S. ---, 96 S.Ct. 3216, 49 L.Ed.2d ---; and Davis v. Oklahoma, 75--6637, --- U.S. ---, 96 S.Ct. 3217, 49 L.Ed.2d --- (1976).

On the 9th day of July, 1976, Riggs was charged by preliminary information in the Garvin County District Court, Case No. CRF--76--375, for the offense of Murder in the First Degree. On the 12th day of July, Riggs filed a petition for writ of habeas corpus in the District Court alleging that the Supreme Court of the United States had declared Oklahoma's First Degree Murder Statute unconstitutional and thus he was being illegally restrained. Upon hearing, the District Court denied relief in an order entered on the 12th day of July, 1976. On the 14th day of July, Riggs filed a petition for writ of habeas corpus in this Court and, pursuant to this Court's order, oral argument was presented on the 20th day of July, 1976, at which time this Court took the matter under advisement.

The issue is whether or not the United States Supreme Court decisions, heretofore cited, have rendered Oklahoma's Homicide Murder Statute, 21 O.S.Supp.1973, § 701.1, et seq., unconstitutional for the reason that the Supreme Court, in declaring the death penalty as provided in 21 O.S.Supp.1973, § 701.3, unconstitutional, has left this statutory scheme without an expressed penalty provision for violation of 21 O.S.Supp.1973, § 701.1, the First Degree Murder provision.

The recent Supreme Court decisions ¹ regarding the constitutionality of the death penalty have given rise to serious questions concerning the status of this State's homicide statutes governing particularly the offenses of Murder in the First Degree and Murder in the Second Degree. ² In reaction to these decisions, the Chief Executive of this State called a Special Session of the Legislature and new statutes governing Murder in the First Degree and Murder in the Second Degree ³ were enacted and signed into law, effective 12:01 a.m., Saturday, July 24, 1976. The new enactment specifically repealed §§ 701.1 to 701.6.

The task now befalls this Court to determine the status of those defendants either charged or having committed the crime of Murder in the First Degree or Murder in the Second Degree, and those defendants convicted of said offenses prior to the effective date of our new murder statutes. We find it appropriate to move with the necessary speed to clarify and attempt to fill what has been termed 'the apparent void' in our Murder law prior to the effective date of our new homicide murder statute.

This determination is mandatory as to that class of defendants charged with or committing homicide murder prior to the effective date of our new statute; they cannot be tried under the new statute, as the evidentiary burden of proof under it has been changed to their detriment. Also, the potential punishment for those ultimately convicted of Murder in the Second Degree has potentially increased and therefore that class of defendants cannot be charged under the new statute. To do otherwise in these situations would be to violate the ex post facto provision of the Constitution of the United States, Article 1, Section 10. ⁴ Also, in Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894, 899, 900 (1964), the Supreme Court noted:

'. . . Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an Ex post facto law, such as Art. 1, § 10, of the Constitution forbids. An Ex post facto law has been defined by this Court as one 'that makes an action done before the passing of the law, and which was Innocent when done, criminal; and punishes such action,' or 'that Aggravates a Crime, or makes it Greater than it was, when committed.' . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. . . .' (Citations omitted, footnote omitted)

(Emphasis original)

Further, it has been said that an ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed or an additional punishment to that then described or changes the rule of evidence by which less or different testimony sufficient to convict than was required or, in relation to the offense or its consequences alter the situation of a party to his disadvantage. See Duncan v. Missouri, 152 U.S. 377, 382, 14 S.Ct. 570, 38 L.Ed. 485. See also, Sutherland on Statutory Construction, Ch. 42, § 40.01. For this reason the new homicide murder statute cannot be applied retroactively by judicial construction.

We also must determine the status of those defendants currently convicted of First Degree Murder and sentenced to death prior to the enactment of the new statute. ⁵

A threshold inquiry in resolving the status of these classes of defendants is to examine the effect of the Supreme Court decisions upon the Oklahoma homicide murder statutes. The statutes affecting these particular classes of defendants are 21 O.S.Supp.1973, § 701.1 et seq. ⁶ This class will include those defendants convicted of first degree murder and sentenced prior to the Supreme Court decision.

The Supreme Court has essentially held that such a statutory scheme in reference to the death penalty is unconstitutional and particularly the six Oklahoma cases before the Supreme Court were vacated insofar as this Court's decisions left undisturbed the death penalties. ⁷ We therefore conclude the death penalty as provided in 21 O.S.Supp.1973, § 701.3, has been effectively stricken from our statute, which is now repealed. Therefore, the next appropriate inquiry is to determine whether the remaining provisions of our homicide murder statute remain in effect after the striking of the death penalty provision. We are of the opinion that they do and so hold.

In 16 Am.Jur.2d, Constitution Law, § 186, the rule of severability is thus stated:

'. . . If the objectional parts of a statute are severable from the rest in such a way that the legislature would be presumed to have enacted the valid portion without the invalid, the failure of the latter will not necessarily render the entire statute invalid, but the statute may be enforced as to those portions of it which are constitutional. If, however, the constitutional and the unconstitutional portions are so dependent on each other as to warrant the belief that the legislature intended them to take effect in their entirety, it follows that if the whole cannot be carried into effect, it would be presumed that the legislature would not have passed the residue independently, and accordingly, the entire statute is invalid.' (Footnotes omitted)

As observed in Sutherland on Statutory Construction, Ch. 42, § 44.20, regarding severability, 'The courts have not been slow to recognize the utility of separability principles, and have put them to increasing use. The words of Cardozo, J., 'The whole tendency during recent years, at least, in this court, has been to apply the principle of severance with increasing liberality. '"' People v. Mancuso, 255 N.Y. 463, 175 N.E. 177, 76 A.L.R. 514 (1931). Undoubtedly expressing the viewpoint of a majority of the courts, the law that has grown up about this branch of statutory construction is not susceptible of clear cut rationalization, despite its frequent use. Severability cases are decided in the light of established principles, but each decision rests largely upon its own particular facts. City of Farmersville v. Texas-Louisiana Power Co., 55 S.W.2d 195 (Tex.Civ.App.1932), and Texas-Louisiana Power Co. v. City of Farmersville, 67 S.W.2d 235 (Tex.Com.App.1933). We find it particularly persuasive that the statutory scheme enacted in 21 O.S.Supp.1973, § 701.1, et seq., included a specific severability clause which reads as follows:

'The provisions of this act are severable and if any part or provision hereof shall be held void the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this act.'

Therefore, the appropriate question is whether or not the Legislature intended the remaining provisions of the statute in question to be given effect and thus severable if the particular death penalty provision section was declared unconstitutional. We are of the opinion that a constitutionally permissible penalty remains for those committing the crime of murder in the first degree or convicted of said crime prior to July 24, 1976, as will hereinafter be discussed, and thus we find that Legislative intent is to give effect to the severability clause.

The next question is what constitutes the appropriate constitutionally permissible punishment which should befall these particular classes of defendan...