Committee Comments

Although no statutory mandate exists, the Commission has decided that the oral reading of the allegations stated in the Bill of Particulars filed by the State should precede the necessary instructions in a second-stage proceeding resolving the punishment issue in a first-degree murder prosecution. It cannot be emphasized too strongly that, although the allegations of the Bill of Particulars and instruction submitted enumerate all the statutory aggravating factors delineated in 21 O.S. 1991, § 701.12, only those factors upon which proof has been offered by the State during the second stage proceeding and of which the defendant was notified prior to trial should be incorporated. The jury must not be informed of any statutory aggravating factor set forth in section 701.12, absent sufficient proof and prior notice.

The definition of the terms "heinous," "atrocious," and "cruel" is quoted virtually verbatim from the opinion of the Florida Supreme Court in State v. Dixon, 283 So. 2d 1 (Fla. 1973), quoted with approval in Eddings v. State, 616 P.2d 1159 (Okl. Cr. 1980).

A decision of the Supreme Court of the United States limits the scope of murder convictions for which the death penalty might be imposed in reliance upon the utter depravity of the crime, as demonstrated by the fourth aggravating circumstance delineated by section 701.12. In Godfrey v. Georgia, 446 U.S. 420 (1980), the defendant was sentenced to death subsequent to his conviction for the shotgun murders of his wife and mother-in-law on the ground that the offense was, in statutory terms, "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." The Court had previously determined this statutory aggravating circumstance to be constitutionally permissible on its face. Gregg v. Georgia, 428 U.S. 153 (1976). In reviewing the application of this statutory standard to defendant's offense, Justice Stewart, writing for a four-Justice plurality, reiterated the holdings of Furman v. Georgia, 408 U.S. 238 (1972), and Gregg v. Georgia, supra, that the ultimate penalty may not be imposed where the sentencing procedures relied upon create a substantial risk that the punishment of death might be inflicted in a manner that is arbitrary and capricious.

446 U.S. at 428 (citations and footnotes omitted).

The Court determined that the statutory aggravating circumstances were not properly limited by the Georgia courts, in that the defendant's shotgun murders failed to reflect a consciousness materially more depraved than that of any person who commits murder. Thus, "the jury's interpretation of the Georgia statute can only be the subject of sheer speculation." Id. at 429. The Court reversed the verdict of death.

Several of the instructions submitted afford the finder of fact guidance in evaluating aggravating, as well as mitigating, factors. Section 701.10 provides that evidence of any of the specific aggravating factors enumerated in section 701.12 may be presented to the jury, provided the defendant has been afforded appropriate notice prior to trial. Section 701.11 provides that the death penalty shall not be imposed unless the jury unanimously finds the existence of at least one of the eight specific statutory aggravating circumstances.

Section 701.11 further provides that the death penalty cannot be imposed if any of the aggravating factors found are outweighed by mitigating circumstances. Section 701.10 (emphasis added), provides that "evidence may be presented as to any mitigating circumstance." This provision has been construed as permitting a defendant to present "any relevant evidence, within the limitations of the rules of evidence, bearing on his character, prior record or the circumstances of the offense." Chaney v. State, 612 P.2d 269, 279-80 (Okl. Cr. 1980). Instructions which were substantially similar to those submitted by the Commission were approved in Chaney as providing "sufficient guidance to prevent an arbitrary or discriminatory application of the death penalty." Id. at 280.

Mitigating factors are not statutorily enumerated, and the jury is not restricted in its determination of mitigating circumstances when deliberating the propriety of the death penalty.

The instruction informing the jury that it is not circumscribed in its consideration of mitigating factors must be given in every ease, regardless of whether the defendant has offered evidence in mitigation.

The verdict form included contains all eight statutory aggravating circumstances. The jury must unanimously find, beyond a reasonable doubt, the existence of at least one statutory aggravating circumstance before it can render a death verdict. However, include only the aggravating circumstance(s) relied on by the State, upon which proof has been offered and which has been made known to the defendant prior to his/her trial.