VanWoundenberg v. State

• Decision Date: 26 September 1991
• Docket Number: No. PC-88-825,PC-88-825
• Citation: 818 P.2d 913
• Parties: Sammy VanWOUNDENBERG, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 913

818 P.2d 913

Sammy VanWOUNDENBERG, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-88-825.

Court of Criminal Appeals of Oklahoma.

Sept. 26, 1991.

An Appeal from the District Court of Muskogee County; Hardy Summers, District Judge.

SAMMY VanWOUNDENBERG, Petitioner, has appealed to this Court from an order of the District Court of Muskogee County denying his application for post-conviction relief in Case No. CRF 83-64. A direct appeal of Petitioner's conviction was filed with this Court wherein we affirmed the conviction and death sentence. See VanWoundenberg v. State, 720 P.2d 328 (Okl.Cr.1986). Petitioner then filed a Writ of Certiorari with the Supreme Court of the United States which was denied. See VanWoundenberg v. Oklahoma, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986). Petitioner's first application for post-conviction relief was denied by the District Court and a subsequent appeal of that denial was affirmed by this Court in Case No. PC 87-633. Petitioner filed a second Petition for Certiorari with the United States Supreme Court which was denied in VanWoundenberg v. Oklahoma, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 780 (1988). A second application for post-conviction was filed by Petitioner in the District Court and relief was denied. It is that denial which Petitioner now appeals. AFFIRMED.

David Autry, Asst. Appellate Public Defender, Norman, for petitioner.

Robert H. Henry, Atty. Gen., Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, for respondent.

OPINION DENYING POST-CONVICTION RELIEF

LUMPKIN, Vice-Presiding Judge:

Petitioner has appealed to this Court from an order of the District Court of Muskogee County denying his application for post-conviction relief in Case No. CRF 83-64. Petitioner's first degree murder conviction and death sentence have been upheld by this Court in VanWoundenberg v. State, 720 P.2d 328 (Okl.Cr.1986). The United States Supreme Court subsequently denied a Petition for Certiorari. See VanWoundenberg v. Oklahoma, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986). Petitioner's first application for post-conviction relief was denied by the District Court and a subsequent appeal of that denial was affirmed by this Court in Case No. PC 87-633. Petitioner filed a second Petition for Certiorari with the United States Supreme Court which was denied in VanWoundenberg v. Oklahoma, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 780 (1988). A second application for post-conviction was filed by Petitioner in the District Court and relief was denied. It is that denial which Petitioner now appeals.

Petitioner alleges that he is entitled to have his sentence of death modified to life imprisonment pursuant to Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). That decision constitutes an intervening change in the law which did not exist at the time of Petitioner's previous appeals. Therefore, we find sufficient reason exists for not previously asserting this allegation of error and will address the merits of Petitioner's contention. 22 O.S.1981, § 1086, See Stewart v. State, 495 P.2d 834, 836 (Okl.Cr.1972).

In Maynard v. Cartwright the United States Supreme Court found that defendant Cartwright's death sentence was invalid because the aggravating circumstance that the murder was "especially heinous, atrocious or cruel" was unconstitutionally vague as applied in that case. Specifically, the Court held that the jury's finding that the murder was "especially heinous, atrocious or cruel" violated the previous dictates in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) which required that the discretion of the sentencer be limited by some comprehensible standards. The lack of limitations and guidance provided in the instruction to the jury on this aggravating circumstance led the Supreme Court to affirm the Tenth Circuit's previous vacation of the death sentence.

The jury in Petitioner VanWoundenberg's trial was given the same instruction as in the Cartwright case. Although a correct instruction at the time, we now recognize it was insufficient as it failed to properly channel or limit the sentencer's discretion in determining whether to impose a death sentence.

While the improper instruction causes the aggravating circumstance of "especially heinous, atrocious or cruel" to fail, it does not necessitate an automatic modification of the death sentence to life.

In addition to finding that the murder was "especially heinous, atrocious or cruel" the jury found beyond a reasonable doubt that two other aggravating circumstances existed: the murder was committed by the defendant while serving a sentence of imprisonment on conviction of a felony and there existed a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

When an aggravating circumstance is found to be invalid, this Court has the authority to review any remaining aggravating circumstances and the mitigating evidence to determine the validity of the death sentence. Castro v. State, 745 P.2d 394 (Okl.Cr.1987), 749 P.2d 1146 (Okl.Cr.1987) (Opinion on Rehearing), cert. denied, 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988); Stouffer v. State, 742 P.2d 562, 563 (Okl.Cr.1987), cert. denied 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). Title 21 O.S.Supp.1986, § 701.13(C) and § 701.13(F), authorize this Court to make a sentence review which includes factual substantiation of the verdict and a determination of the validity of the sentence. A reweighing of the aggravating circumstances versus mitigating factors is implicit to such review.

Contrary to Petitioner's argument, we are not prohibited from such review under Cartwright. The Supreme Court and the Tenth Circuit refused to reweigh the evidence when one aggravating circumstance failed only because of this Court's policy as it then existed of refusing to reconsider the death sentence on appeal when one aggravating circumstance was found invalid. In fact, the Supreme Court in Cartwright recognized our new policy of not automatically setting aside a death sentence when one of several aggravating circumstances is found to be invalid and stated that the significance of that decision was a matter for the state courts to decide.

The application of such a harmless error analysis to second stage sentencing errors has been approved by the Supreme Court in Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983); Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) and Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

The Petitioner also argues that this Court's harmless error analysis and reweighing of the evidence violates his right to have a jury set his sentence, pursuant to 22 O.S.1981, § 926. Section 926 provides that the jury may, and upon request of the defendant shall, assess the punishment in the first instance. This provision is activated only upon the defendant's specific request for jury sentencing. Such a specific request made by Petitioner VanWoundenberg is not reflected in the record.

The provisions of 21 O.S.Supp.1989, §§ 701.10(A) and 701.10(B), require a sentencing proceeding before the same jury in the initial trial proceedings unless waived by the defendant. If the jury sentencing is waived, the sentencing shall be conducted before the court.

We have previously held that Section 926 is to be read in conjunction with 21 O.S.1981, § 701.7 et seq., 21 O.S.Supp.1985, § 701.13, and 22 O.S.1981, § 1066, providing for this Court's appellate review of judgments and sentences. Such a reading of these provisions shows that a defendant's statutory right of jury sentencing is subject to this Court's statutory right to review the appropriateness of that sentence. See Livingston v. State, 795 P.2d 1055 (Okl.Cr.1990). Moreover,...