Stafford v. State, PC-89-87

• Decision Date: 15 July 1991
• Docket Number: No. PC-89-87,PC-89-87
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Roger Dale STAFFORD, Sr., Petitioner, v. STATE of Oklahoma, Respondent.

Page 685

815 P.2d 685

Roger Dale STAFFORD, Sr., Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-89-87.

Court of Criminal Appeals of Oklahoma.

July 15, 1991.

An appeal from the District Court of Oklahoma County; Charles Owens, District Judge.

Roger Dale Stafford, Sr., petitioner, was convicted by a jury of six counts of Murder in the First Degree in the District Court of Oklahoma County, Case No. CRF-79-926. The jury found that four aggravating circumstances existed and the petitioner was sentenced to death on all six counts. Subsequently, petitioner filed an application for post-conviction relief which was denied and is the subject of this appeal. AFFIRMED.

Robert A. Ravitz, Public Defender of Oklahoma County, Oklahoma City, for petitioner.

Robert H. Henry, State Atty. Gen. and Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for respondent.

OPINION

BRETT, Judge:

Roger Dale Stafford, Sr., Petitioner, is before this Court on an Application for Post Conviction Relief. Petitioner was convicted by a jury of six counts of Murder in the First Degree in the District Court of Oklahoma County, Case No. CRF-79-926. The jury found that four aggravating circumstances existed ¹ and the petitioner was subsequently sentenced to death on all six counts. This Court affirmed the death sentences in Stafford v. State, 665 P.2d 1205 (Okl.Cr.1983), and denied the Petition for Rehearing that followed. The United States Supreme Court granted a Petition for Writ of Certiorari and remanded the case back to this Court for reconsideration in Stafford v. Oklahoma, 467 U.S. 1212, 104 S.Ct. 2651, 81 L.Ed.2d 359 (1984). Upon reconsideration, the case was again affirmed by this Court in Stafford v. State, 700 P.2d 223 (Okl.Cr.1985), and a subsequent Petition for Rehearing was denied. Certiorari was denied by the United States Supreme Court in Stafford v. Oklahoma, 474 U.S. 865, 106 S.Ct. 188, 88 L.Ed.2d 157 (1985). Petitioner thereafter filed an Application for Post Conviction Relief in the District Court of Oklahoma County. This application was denied by the district court and the denial was affirmed by this Court in Stafford v. State, 731 P.2d 1372 (Okl.Cr.1987). Upon an Application for a Writ of Habeas Corpus directed to the United States Court for the Western District of Oklahoma, that court issued an order directing the petitioner to exhaust his claims in the State courts which deal with the application of the "especially heinous, atrocious or cruel" aggravating circumstance. In response to this order, the petitioner filed a second Application for Post Conviction Relief in the District Court of Oklahoma County. This application was denied, and it is from this denial that the petitioner now appeals.

In his second Application for Post Conviction Relief, the petitioner claimed that the jury instruction concerning the "especially heinous, atrocious or cruel" aggravating circumstance was unconstitutionally vague. In response, the district court found in its conclusions of law, that resolution of this issue was barred by the doctrine of res judicata because petitioner could have raised this issue on direct appeal or in his first application for Post Conviction Relief. We note, however, that the United States Supreme Court decision of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), which deals directly with this issue, constitutes an intervening change in the law which did not exist at the time of petitioner's previous appeals. Although, as the State argues, the Cartwright decision was based upon principles of law previously announced in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), this specific issue was not definitively decided until addressed by the Supreme Court in Cartwright. We find this subsequent change in the law to be a sufficient reason why this error was not previously asserted. Thus, we will address the merits of petitioner's contention. See 22 O.S.1981, § 1086; Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr.1985).

The record reveals that the jury in the present case was given essentially the same instruction regarding the aggravating circumstance of "especially heinous, atrocious or cruel" that was found to be unconstitutionally vague in Cartwright. The instruction provided:

You are further instructed that the term "heinous", as that term is used in these instructions means extremely wicked or shockingly evil, and that "atrocious" means outrageously wicked and vile; and "cruel" means designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the suffering of others; pitiless. (Second Stage Instruction No. 6)

Contrary to the assertions of the State, the jury was not given instructions with the narrowing language which has been found to give more guidance than the language condemned in Cartwright. ² Thus, we agree with the petitioner that the aggravating circumstance of "especially heinous, atrocious or cruel" must fail in this case because the jury based its finding of such circumstance upon an unconstitutionally vague instruction.

The petitioner claims that upon finding that the aggravating circumstance of "especially heinous, atrocious or cruel" must fail, this Court must modify the death sentence to life in prison. In at least two other cases where an aggravating circumstance was found to have failed, Castro v. State, 749 P.2d 1146 (Okl.Cr.1987) and Stouffer v. State, 742 P.2d 562 (Okl.Cr.1987), this Court upheld the death penalty after reweighing the remaining aggravating circumstances against the mitigating circumstances. However, the petitioner claims that there are distinctions between the present case and Castro and Stouffer which make reweighing inappropriate in the present case.

It is argued by the petitioner that the cases relied on by this Court to support the reweighing policy utilized in Castro and Stouffer, Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) and Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1984), cannot apply to situations where an aggravating circumstance fails because it violates the Eighth Amendment to the United States Constitution, as it did in the present case. To further support his argument that reweighing is not now appropriate, the petitioner also noted several other distinctions between these cases and the present case. However, in light of the United States Supreme Court's recent decision in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), it appears that these distinctions are not decisive of the issue.

In Clemons, the Supreme Court held that it is constitutionally permissible for an appellate court to reweigh the remaining aggravating circumstances against any mitigating evidence after one or more aggravating circumstances has been invalidated. This decision was made in a context very similar to the present situation. The aggravating circumstance of "especially heinous, atrocious or cruel" failed in Clemons, as it did in the case at bar, because it was essentially identical to the one invalidated in Maynard v. Cartwright. Thus, this aggravating circumstance was invalidated on constitutional grounds. This fact did not dissuade the Supreme Court from finding that the appellate reweighing process was constitutional. This was found despite the fact that there was mitigating evidence presented in Clemons and that a great deal of the State's argument for the death penalty in that case was based on its contention that the murder was "especially heinous". Thus, we find this argument to be without merit.

The petitioner also complains that the reweighing process would deny him his right to sentencing by a jury. The Supreme Court in Clemons noted that under Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), it was recognized that "when a state law created for a defendant a liberty interest in having a jury make particular findings, speculative appellate findings will not suffice to protect that entitlement for due process purposes." Clemons, 494 U.S. at ----, 110 S.Ct. at 1447. However, it was also noted that at the time Hicks was decided, there was no authority under Oklahoma law for appellate sentencing. Because in Clemons, Mississippi law gave the state court authority to employ appellate sentencing procedures, due process...