Walker v. Ward

• Decision Date: 20 May 1996
• Docket Number: No. 94-C-214-H.,94-C-214-H.
• Citation: 934 F. Supp. 1286
• Parties: Gary Alan WALKER, Petitioner, v. Ron WARD, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

934 F. Supp. 1286

Gary Alan WALKER, Petitioner, v. Ron WARD, Respondent.

No. 94-C-214-H.

United States District Court, N.D. Oklahoma.

May 17, 1996.

Order Supplementing Decision May 20, 1996.

COPYRIGHT MATERIAL OMITTED

Jack E. Gordon, Jr., Gordon & Gordon, Claremore, OK, Gloyd L. McCoy, J.W. Coyle, III, Oklahoma City, OK, for petitioner.

Sandra D. Howard, Attorney General of the State of Oklahoma, Diane Blaylock, Office of the Attorney General, Oklahoma City, OK, for respondent.

ORDER

HOLMES, District Judge.

This matter comes before the Court on cross-motions for summary judgment filed by Petitioner (Docket # 41) and Respondent (Docket # 45). A hearing on these motions was held before the Court on May 15, 1996.

Petitioner was convicted of first-degree murder in the District Court of Tulsa County in 1984. In the sentencing phase of the trial, the State of Oklahoma sought the death penalty and alleged the existence of two statutory aggravating circumstances: (1) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, 21 Okla.Stat.Ann. § 701.12(5), and (2) the existence of a probability that Petitioner would commit criminal acts of violence that would constitute a continuing threat to society, id. at § 701.12(7). See Walker v. State, 723 P.2d 273, 276 (Okl.Ct. Crim.App.1986). In support of its second claim, the State produced evidence that, at the time of this homicide, Petitioner had committed three other murders. The State also offered as evidence a statement by Petitioner that he would kill again. Petitioner alleged mental illness as a mitigating circumstance, readopting all of the evidence presented in the first stage of trial in support of his insanity defense. The jury returned a sentence of death on the sole basis that a probability existed that Petitioner would commit criminal acts of violence that would constitute a continuing threat to society.

Upon exhaustion of his state remedies, Petitioner brought this action seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This matter is now before the United States District Court for the first time. In his petition, he alleged nine grounds for relief, including a claim that the "continuing threat" aggravating circumstance is unconstitutionally vague on its face and as applied to him. Petitioner subsequently filed this motion for summary judgment solely on the constitutionality of the "continuing threat" aggravating circumstance. Respondent filed its cross-motion for partial summary judgment on the same issue.¹

Under Oklahoma's statutory sentencing scheme, "evidence may be presented as to any mitigating circumstances or as to any of the aggravating circumstances" provided by law in the sentencing phase of the trial. 21 Okla.Stat.Ann. § 701.10. Oklahoma law includes as an aggravating circumstance "the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Id. at § 701.12. The death penalty may not be imposed unless the jury unanimously finds at least one of the statutory aggravating circumstances beyond a reasonable doubt and finds beyond a reasonable doubt that the aggravating circumstance outweighs any mitigating circumstances. Id. at § 701.11.

Petitioner challenges the "continuing threat" aggravating circumstance as unconstitutionally vague. The Tenth Circuit recently stated:

The Supreme Court has announced that a vagueness review should be "quite deferential" because "mathematical precision" is not possible in the definition of aggravating factors. The "basic principle" is that "a factor is not unconstitutional if it has some `common sense core of meaning ... that criminal juries should be capable of understanding.'" Nevertheless, an aggravating factor may be unconstitutionally vague if it "leaves the sentencer without sufficient guidance for determining the presence or absence of the factor."

United States v. McCullah, 76 F.3d 1087, 1110 (10th Cir.1996) (quoting Tuilaepa v. California, 512 U.S. 967, ___ - ___, 114 S.Ct. 2630, 2635-36, 129 L.Ed.2d 750 (1994); Espinosa v. Florida, 505 U.S. 1079, 1081, 112 S.Ct. 2926, 2927-28, 120 L.Ed.2d 854 (1992)). A state must sufficiently define aggravating circumstances to narrow the class of criminal defendants to which the death penalty applies. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

In Jurek v. Texas, the United States Supreme Court upheld the constitutionality of the Texas capital sentencing scheme, which allowed the imposition of the death penalty only in those cases where the jury finds beyond a reasonable doubt that "`there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.'"² 428 U.S. 262, 269, 96 S.Ct. 2950, 2955, 49 L.Ed.2d 929 (1976) (quoting Tex.Code Crim.Proc.Ann., art. 37.071(2) (West 1975)). Rejecting a vagueness challenge to the "continuing threat" provision, Justice Stevens, in an opinion joined by Justices Stewart and Powell, wrote:

Petitioner argues that it is impossible to predict future behavior and that the question is so vague as to be meaningless. It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. Any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.

428 U.S. at 274-76, 96 S.Ct. at 2957-58 (emphasis added).

Petitioner asserts that the Court should discount this analysis because the Supreme Court issued no opinion of the Court in Jurek and the above-quoted language represents the views of only three justices. Pet. at 84-85. However, three other Justices explicitly agreed with the Justice Stevens' opinion that a vagueness challenge should be rejected, expressing the view that "the issues posed in the sentencing proceeding have a common-sense core of meaning and that criminal juries should be capable of understanding them." 428 U.S. at 279, 96 S.Ct. at 2959 (White, J., in an opinion joined by Burger, C.J., and Rehnquist, J., concurring in the judgment); see Tuilaepa v. California, 512 U.S. 967, ___ - ___, 114 S.Ct. 2630, 2635-36, 129 L.Ed.2d 750 (1994) (quoting Jurek and noting that "in providing for individualized sentencing, it must be recognized that the States may adopt capital sentencing processes that rely upon the jury, in its sound judgment, to exercise wide discretion.").

Applying the reasoning articulated in Jurek to the instant case, the Court concludes that the "continuing threat" aggravating circumstance set forth in the Oklahoma statute is not unconstitutionally vague. The language of the Texas and Oklahoma provisions are identical. In conformance with the requirements of Jurek, the jury was presented with "all possible relevant information" about Petitioner in making their determination that he was a "continuing threat to society." Before rendering its decision, the jury heard evidence on both sides of the issue. The State painted the picture of a man who had just been convicted of the callous murder of Eddie Cash, had committed three other murders during the same time period, and had made a statement that he would kill again. Petitioner countered by portraying the same man as a victim of child abuse who had been in and out of institutions most of his life. Upon the jury's determination that Petitioner was a "continuing threat," Oklahoma's two-step sentencing procedure required the jury to consider again the mitigating evidence and weigh such evidence against the aggravating circumstance. The Oklahoma procedure thus meets the requirements of Jurek.

The Court observes that the United States District Courts for the Northern District and the Western District of Oklahoma previously have rejected vagueness challenges to Oklahoma's "continuing threat" aggravating circumstance. Banks v. Reynolds, No. 92-C-747 (N.D.Okl. July 18, 1994); Castro v. Oklahoma, No. CIV-94-638 (W.D.Okl. Oct. 18, 1994). Although other states; including Texas, Oregon, Virginia, and Idaho, also require criminal juries to consider the probability that the defendant will be a continuing threat to society, Petitioner cites only one case holding the language of the "continuing threat" provision to be unconstitutionally vague. Williamson v. Reynolds, 904 F.Supp. 1529 (E.D.Okl.1995). Based upon a review of the record, relevant case law, and the briefs and arguments of counsel, the Court concludes that with respect to this issue, Williamson is not persuasive authority.

Petitioner relies in part upon the briefs submitted by the State in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). In Maynard, the State defended the "especially heinous, atrocious, or cruel" aggravating circumstance against a vagueness challenge by stating:

If anything, an aggravating circumstance that requires a jury to speculate as to whether a defendant is going to commit crimes in the future gives the jury more discretion than if it merely decides whether the crime

...