[977 P.2d 1140]
ORDER DENYING PETITION FOR REHEARING
¶1 Appellant, through counsel, filed a Petition for Rehearing and Motion to Stay Mandate in the above-styled appeal on November 30, 1998. Therein, Appellant requested a rehearing of his appeal and reconsideration of this Court's November 6, 1998 Opinion with respect to Proposition II of his appellate brief.
¶2 In our Opinion, after exhaustively considering Appellant's propositions of error and the entire record before us on appeal, we affirmed Appellant's death sentence. In so doing, we addressed Appellant's challenges to the "prior violent felony" aggravator, including the argument that his second degree rape conviction was not a "previous" conviction because the rape occurred three years after Pamela Willis' murder. In resolving that question, we stated that "we have previously rejected this argument, and Appellant has not convinced us to hold otherwise", citing Grasso v. State, 1993 OK CR 33, ¶ 24, n.4, 857 P.2d 802, 809, n.4 in support. Consistent with Grasso, we emphasized that the statutory focus is not when the crime was committed but if a "conviction occurred prior to the sentencing hearing in the present case." We also found Appellant was not prejudiced by the jury instruction which told the jury to determine "whether at the time this crime was committed . . . defendant was previously convicted of a felony involving the use or threat of violence to the person."
¶3 Appellant now claims that our reliance on Grasso is misplaced because the portion of the Grasso opinion upon which we are relying is "classic dicta". Appellant also argues that our decision is in conflict with Oklahoma's Uniform Jury Instructions, [977 P.2d 1141] specifically OUJI-CR 435 (1st ed.) and OUJI-CR 4-72 (2nd ed.), its most recent amended version. In OUJI-CR 435 (1st ed.), the jury is instructed to "determine whether at the time this crime was committed . . . [t]he Defendant(s) (was) (were) previously convicted of a felony involving the use or threat of violence to the person". In OUJI-CR 4-72 (2nd ed.), the jury is instructed to determine if the "defendant, prior to the murder, was convicted of a felony involving the use or threat of violence to the person."
¶4 A petition for rehearing is governed by Rule 3.14, Rules of the Court of Criminal Appeals, Title 22, Ch.18, App. (1998). According thereto, a Petition for Rehearing shall not be filed as a matter of course, but only for two specific reasons. Appellant's petition for rehearing claims that "questions decisive of the case and duly submitted by the attorney of record were overlooked by the Court" and that "issues duly presented to the Court were disposed of in ways that are contrary to controlling authority."
¶5 This Court did not overlook the argument raised in Appellant's brief and the issues presented were not decided in ways that are contrary to controlling authority. We have now addressed this issue on three occasions. In addition to our opinions in McCarty v. State, 1998 OK CR 61, ___ P.2d ___, and Grasso, we recently held similarly in Miller v. State, 1998 OK CR 59, ¶ 55, ___ P.2d ___. Other Courts have addressed this issue and reached a like result. See Knight v. State, 721 So.2d 287, 297 (Fla.1998); Smith v. State, 1998 WL 852938 (Miss.1998). Considering all of these cases together, along with the statutory language of 21 O.S.1991, §§ 701.10 and 701.12(1), this Court has determined that the focus of the prior violent felony aggravator is whether the defendant was convicted of a felony involving the use or threat of violence prior to his or her sentencing proceeding, not prior to the commission of the crime at issue.
¶6 However, Appellant's Petition for Rehearing raises valid points concerning the language in our jury instructions. Therefore, in light of our decisions in McCarty, Grasso, and Miller, the language of paragraph one of OUJI-CR 4-72 (2nd ed.) is hereby modified to read:
1. The defendant, prior to the time of sentencing, was convicted of a felony involving the use or threat of violence to the person;
We believe this modification will more accurately state the statutory language from which the referenced jury instruction was derived. Further, in making this modification, we find no basis for striking the prior violent felony aggravator in this appeal as a violation of ex post facto principles.
¶7 Accordingly, the Petition for Rehearing and Motion to Stay Mandate are hereby DENIED.
IT IS SO ORDERED.
/s/ Reta M. Strubhar
RETA M. STRUBHAR, Presiding Judge
/s/ Gary L. Lumpkin
GARY L. LUMPKIN, Vice Presiding Judge
/s/ Charles A. Johnson
CHARLES A. JOHNSON, Judge
/s/ Charles S. Chapel
CHARLES S. CHAPEL, Judge
/s/ Steve Lile
STEVE LILE, Judge
[977 P.2d 1141]
LUMPKIN, VICE-PRESIDING JUDGE: SPECIALLY CONCURRING
¶1 I would like to commend Matthew D. Haire, Appellant's appellate counsel, for his excellent legal work in Mr. McCarty's resentencing appeal and petition for rehearing. Instead of presenting the standard arguments we see in most appeals, counsel has professionally presented us with thought-provoking issues, a well-reasoned analysis, and insightful arguments which have challenged us, both legally and intellectually. This is the quality of appellate advocacy which advances, clarifies, and helps to improve our understanding of the law.
¶2 Counsel's comments regarding my prior writings regarding dicta and the need for an accurate and consistent application of precedent are well-taken. Our jury instructions needed to be modified, and counsel's efforts clarified this issue for the Court. Furthermore, counsel correctly notes that statements in footnotes are generally regarded as dicta and that I have previously written to that issue, urging the Court to confine its decisions to the body of the opinion. [977 P.2d 1142] See e.g. Cannon v. State, 1995 OK CR 45, ¶¶ 1-8, 904 P.2d 89, 108. However, other members of the Court have not adopted that position.
¶3 While I did not author the Grasso opinion, I did vote to concur in the Court's decision. Upon re-examining the issue presented in Grasso, it is clear that the Court did not base its affirmance of the prior violent felony aggravator entirely on language found in footnote four. However, it is also clear that footnote four was not entirely inconsequential to the decision. While I would certainly have preferred a more detailed analysis in the body of the Grasso opinion, I found, and continue to find, the legal position for which it stood to be correct.