DEATH PENALTY PROCEEDINGS -
CONTINUING THREAT TO SOCIETY DEFINED
The State has alleged that there exists a probability that the defendant will commit future acts of violence that constitute a continuing threat to society. This aggravating circumstance is not established unless the State proved beyond a reasonable doubt:
First, that the defendant's behavior has demonstrated a threat to society; and
Second, a probability that this threat will continue to exist in the future.
Statutory Authority: 21 O.S. 1991, § 701.12(7).
Notes on Use
This instruction must be given where there is evidence of the continuing threat aggravating circumstance.
The constitutionality of the aggravating circumstance of "the existence of a probability that the defendant would commit criminal acts of violence that constitute a continuing threat to society" has been upheld by the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 896-99 (1983), and by the Oklahoma Court of Criminal Appeals in Malone v. State, 1993 OK CR 43, ¶¶ 27-28, 876 P.2d 707, 715-16. The Court of Criminal Appeals analyzed this aggravating circumstance in Malone as follows:
We have held when the State alleges the continuing threat circumstance, it is required to present evidence that the defendant's behavior demonstrated a threat to society and a probability that this threat would continue to exist in the future. [Citations omitted.] The aggravator is not established unless the evidence at trial supports a finding that the defendant will continue to present a threat to society after sentencing. [Citation omitted.] It is, therefore, necessary that the State present sufficient evidence concerning prior convictions or unadjudicated crimes to show a pattern of criminal conduct that will likely continue in the future to support its "continuing threat" contention.
In prior cases in which this Court has upheld the validity of this aggravating circumstance, "continuing threat" was proven through the introduction of Judgments and Sentences showing a history of violent criminal behavior or through the introduction of additional evidence detailing the defendant's participation in other unrelated crimes or both. This Court has also upheld the "continuing threat" aggravator based upon the sheer callousness in which a defendant commits a particular murder. However, each of these cases is readily distinguishable from the instant case.
Id. ¶¶ 38-39, 876 P.2d at 717-18 (footnotes omitted). See also Lafevers v. State, 1995 OK CR 26, ¶ 46, 897 P.2d 292, 311 ("The most common grounds for this aggravating circumstance include a history of violent conduct, including unadjudicated offenses, the facts of the homicide of which the defendant was convicted, and other grounds including threats, lack of remorse, attempts to prevent calls for help, testimony of experts, and mistreatment of family members."); Scott v. State, 1995 OK CR 14, ¶ 36, 891 P.2d 1283, 1296 ("[The aggravating circumstance of continuing threat to society] can be established through introduction of evidence detailing the defendant's participation in unrelated crimes as well as the sheer callousness with which a defendant commits a particular murder." (footnotes omitted)); Hooks v. State, 1993 OK CR 41, ¶ 33, 862 P.2d 1273, 1282 ("[T]he nature and circumstances of the killing itself are sufficient to show a propensity towards future acts of violence."); Workman v. State, 1991 OK CR 125, ¶ 25, 824 P.2d 378, 383-84 ("[T]he calloused manner in which a crime is committed may support a finding of a continuous threat.").
The application of these standards in Malone resulted in the court's modifying the defendant's death sentence to life imprisonment. The only evidence presented by the prosecution on the continuing threat aggravating circumstance was a 19 year old information charging the defendant with shooting with intent to kill. There was no evidence that the defendant sought out his victim or engaged in any calculated planning that would support a finding that the murder was committed in a particularly brutal or calloused manner. The Oklahoma Court of Criminal Appeals held that the prosecution failed to present sufficient evidence for a rational trier of fact to find the defendant to be a continuing threat to society. Malone v. State, 1993 OK CR 43, ¶ 40, 876 P.2d 707, 718. See also Perry v. State, 1995 OK CR 20, ¶ 63, 893 P.2d 521, 536-37 (evidence was insufficient to support continuing threat aggravating circumstance because there was no proof of a pattern of criminal behavior).