DEATH PENALTY PROCEEDINGS - AVOIDING LAWFUL ARREST
OR PROSECUTION DEFINED
The State has alleged that "the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution." This aggravating circumstance is not established unless the State has proved beyond a reasonable doubt that:
First, there was another crime separate and distinct from the murder; and
Second, the defendant committed the murder with the intent to avoid being arrested or prosecuted for that other crime.
Statutory Authority: 21 O.S. 1991, § 701.12(5).
Notes on Use
This instruction must be given where there is evidence of the avoiding lawful arrest or prosecution aggravating circumstance.
The Oklahoma Court of Criminal Appeals analyzed the aggravating circumstance that "the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution" in Scott v. State, 1995 OK CR 14, ¶¶ 31-33, 891 P.2d 1283, 1294-95. The Court held: "To support a finding of this aggravating circumstance there must be a predicate crime, separate from the murder, for which the defendant seeks to avoid arrest or prosecution. [Citation omitted.] Central to proof of the predicate crime is the defendant's intent." Id. ¶ 32, 891 P.2d at 1294. In Scott, the court ruled that this aggravating circumstance was proved by the following circumstantial evidence: 1) the defendant had a motive to rob the decedent; 2) the decedent was last seen with $11 and in the company of the defendant; 3) the defendant said that he had killed the decedent for $11; 4) the defendant had spent a considerable amount of time with the decedent so that he could be identified by him; 5) the defendant set the decedent's truck on fire in an attempt to destroy evidence; and 6) the defendant requested others to fabricate an alibi for him and directed the disposal of the murder weapon. Id. ¶ 33, 891 P.2d at 1294-95. In contrast, the Oklahoma Court of Criminal Appeals decided that this aggravating circumstance was not shown in Barnett v. State, 1993 OK CR 26, ¶ 30, 853 P.2d 226, 233-34, because the predicate crime of assault and battery was not separate and distinct from the murder, but was instead part of a continuing transaction that culminated in the victim's death.