MALONE v. STATE

MALONE v. STATE
2002 OK CR 14
73 OBJ 928
Case Number: F-00-1585
Decided: 03/18/2002
Modified: 03/20/2002
As Corrected: March 20, 2002
GREGORY KYLE MALONE, Appellant -vs- STATE OF OKLAHOMA, Appellee

SUMMARY OPINION

CHAPEL, JUDGE

¶1 Gregory Kyle Malone was tried by jury and convicted of Count I, First Degree Burglary in violation of

¶2 Malone raises one proposition of error in support of his appeal:

I. Malone was denied a fair sentencing proceeding when the trial court precluded the admission of mitigating evidence relevant to the jury's exercise of discretion

¶3 In the second stage of this bifurcated felony trial, Malone intended to call his mother to discuss Malone's frequent juvenile hospitalizations and treatment for "mental health." The prosecutor objected to the defense material on relevance grounds. The prosecutor argued the evidence would not be relevant to the alleged prior convictions, but would amount to asking for sympathy for the defendant. Malone argued the information was relevant to sentencing.

¶4 Counsel made an offer of proof that Malone's mother would testify he had at least twelve hospitalizations for "mental health conditions" as a child, that she received a Social Security Disability pension as a result of his mental disability, and she believed he had two very different personalities. She would further testify she noticed Malone exhibiting those personality symptoms in the month preceding his arrest, and knew he was abusing drugs at that time. Counsel admitted Malone's medical records as part of the offer of proof.

¶5 The trial court sustained the State's objection without discussion or explanation. The jury was properly instructed on the ranges of punishment available for a conviction with no prior offenses, one prior offense, or two prior offenses.

¶6 Malone first claims the trial court abused its discretion because the evidence in mitigation was relevant to the sentencing procedure. He also claims the lack of an opportunity to present mitigating evidence during the sentencing stage violated his right to equal protection under the laws. We agree with Malone's claim that mitigating evidence is relevant to sentencing. However, we reject his claim that the trial court abused its discretion in his case. We also reject his equal protection argument.

¶7 Malone and the State agree that no Oklahoma statute gives a non-capital defendant the right to present evidence in mitigation during the sentencing stage of a bifurcated trial.

¶8 Malone is correct that the person imposing sentence should consider any relevant evidence presented in mitigation, but has misunderstood the time at which that consideration is appropriate. A defendant in every trial has the opportunity for allocution. Allocution is the court's formal inquiry as to whether a defendant can show any legal cause why judgment should not be pronounced or whether he wishes to make a statement on his own behalf or present information in mitigation.

¶9 This Court has rejected a defendant's claim that allocution before a trial court is meaningless where the jury recommends a sentence.

¶10 Malone claims his right to equal protection under the laws is violated by his inability to present mitigating evidence during the second stage of trial. He asserts that the right to present evidence in mitigation is fundamental, and the State's differing treatment of defendants requires strict scrutiny.

¶11 We do not find that the ability to present mitigating evidence amounts to a fundamental right requiring strict scrutiny. Malone suggests this is part of the implicit right to fairness fundamental in all criminal trials. He claims the state statutes explicitly providing for this evidence in some, but not all, felony cases amounts to unfairness of constitutional magnitude. Beyond this Malone offers no suggestion that the presentation of mitigating evidence itself is fundamental on a par with, for instance, the rights to vote, procreate, or testify on one's own behalf. In Harmelin v. Michigan, a plurality opinion, the United States Supreme Court has indicated there is no Eighth Amendment constitutional requirement for individualized sentencing in non-capital cases.

¶12 Every defendant has the right to present evidence in mitigation at allocution, along with any evidence in aggravation presented by the State, and to have that evidence considered before sentence is imposed. Malone complains he was not afforded the opportunity to present mitigating evidence to the jury in the second stage of his bifurcated trial. This was not the proper time for that request. The trial court did not err in refusing to admit the proffered evidence in mitigation. This proposition is denied.

Decision

¶13 The Judgments and Sentences of the District Court are AFFIRMED.

APPEARANCES AT TRIAL

JULIE O'CONNELL
OFFICE OF PUBLIC DEFENDER
423 SOUTH BOULDER, # 300
TULSA, OKLAHOMA 74103
ATTORNEY FOR DEFENDANT

LARRY EDWARDS
ASSISTANT ATTORNEY GENERAL
406 TULSA COUNTY COURTHOUSE
TULSA, OKLAHOMA 74103

ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

PAULA J. ALFRED
ASSISTANT PUBLIC DEFENDER
423 S. BOULDER AVE. # 300
TULSA, OKLAHOMA 74103

ATTORNEY FOR APPELLANT
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
KELLYE BATES
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA
ATTORNEYS FOR APPELLEES

OPINION BY: CHAPEL, J.

FOOTNOTES

1 22 O.S.Supp.1999, § 860.1(2).

2 21 O.S.1991, § 701.10.

3 21 O.S.1991, § 973.

4 Black's Law Dictionary, 76 (6th ed. 1990); Duckett v. State, 1995 OK CR 61, 919 P.2d 7, 20, cert. denied, 519 U.S. 1131, 117 S. Ct. 991, 136 L. Ed. 2d 872 (1997); Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 289, cert. denied, 513 U.S. 1022, 115 S. Ct. 590, 130 L. Ed. 2d 503. Rule 32(a) of the Federal Rules of Criminal Procedure explicitly grants both the right to speak and to present mitigating evidence.

5 22 O.S.1991, § 970: "When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment or information, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him."

6 Smallwood v. State, 1995 OK CR 60, 907 P.2d 217, 234, cert. denied, 519 U.S. 980, 117 S. Ct. 431, 136 L. Ed. 2d 330 (1996); Mitchell v. State, 1994 OK CR 70, 884 P.2d 1186, 1205, cert. denied, 516 U.S. 827, 116 S. Ct. 95, 133 L. Ed. 2d 50 (1995); Freeman, 876 P.2d at 289.

7 Mitchell, 884 P.2d at 1205.

8 22 O.S.1991, § 926.

9 22 O.S.1991, § 927; 22 O.S.1991, § 970. Sections 971 and 972 discuss grounds the defendant may offer, which may include insanity or 'good cause" in arrest of judgment or for a new trial.

10 Legislative intent controls statutory interpretation. "Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each." Keating v. Edmondson, 2001 OK CR 110, ¶ 8. This Court will give effect to all portions of a statute or section as read together, presuming the Legislature will not do a vain thing. Huskey v. State, 1999 OK CR 3, 989 P.2d 1, 6; Reupert v. State, 1997 OK CR 65, 947 P.2d 198, 201.

11 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 2358, 147 L. Ed. 2d 435 (2000).

12 This conclusion is supported by several statutory provisions. A trial court may modify a sentence by directing imposition of another penalty at any time within twelve months after the sentence is imposed. 22 O.S.1991, § 982a . To aid in its sentencing determination, a trial court must require a presentence investigation upon conviction of certain violent felonies. 22 O.S.Supp.2000, § 982. Where the trial court hears extra evidence in the case of a plea, or determines punishment, the trial court may schedule a hearing on evidence of aggravation or mitigation of punishment. 22 O.S.1991, § 973.

13 Statutes affecting a fundamental interest or suspect classification are subject to strict scrutiny, while other categories require only that the statute have a rational relation to a legitimate state interest.

14 We agree with the State that state and federal death penalty cases clearly show non-capital defendants are not similarly situated to capital defendants for purposes of equal protection comparison.

15 501 U.S. 957, 995-96, 111 S. Ct. 2680, 2701-02, 115 L. Ed. 2d 836 (1991).

16 See, e.g., Parke v. Raley, 506 U.S. 20, 27, 113 S. Ct. 517, 522, 121 L. Ed. 2d 391 (1992); Spencer v. Texas, 385 U.S. 554, 565, 87 S. Ct. 648, 654, 17 L. Ed. 2d 606 (1966).

17 Dodd v. State, 1999 OK CR 20, 982 P.2d 1086, 1088; Clayton v. State, 1995 OK CR 3, 892 P.2d 646, 654, cert. denied, 516 U.S. 846, 116 S. Ct. 137, 133 L. Ed. 2d 84 (1995).

18 This conclusion also disposes of Malone's claim that he was forced to relinquish his equal protection right to fundamental fairness in order to exercise his statutory right to have the jury assess punishment.

LUMPKIN, J.: CONCUR IN PART, DISSENT IN PART

¶1 Let's begin with an underlying truth upon which my colleagues and I, and virtually all judges, can agree: A defendant in a criminal trial deserves to have his day in court, to tell his story, and defend himself against the crimes of which he has been charged. See e.g., Bromley v. State, 757 P.2d 382, 386 (Okl.Cr.1988) (defendant was denied his "day in court" in which to defend himself); Carter v. State, 376 P.2d 351, 359 (Okl.Cr.1962)(defendant was denied his "day in court" when his defense theory never got to the jury.) I know of no reasonable judge who wants a defendant to appear in court without the ability defend him or herself. However, that is not the issue in this case.

¶2 Just as there must be rules in every "game," for without rules we can quickly spin out of control, there must be rules to guide our judicial process. This is especially true in an adversarial courtroom, where both sides have their own story to tell. I embrace these rules, these laws, as I must, for they are established by an elected legislature. They guide all judges in making tough decisions.

¶3 Amendment VI to the United States Constitution recognizes the notion of a defendant having his day in court broadly by giving criminal defendants the right "to be confronted with the witnesses against him" and "to have a compulsory process for obtaining witnesses in his favor." Oklahoma's Constitution, Article 2, Section 20, provides these same rights,1 and adds the following: "He (the defendant) shall have the right to be heard by himself and counsel...." Furthermore, Article 2, Section 6 of Oklahoma's Constitution provides that "[t]he courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

¶4 Our criminal statutes get more specific regarding this issue. The Court's opinion references these statutes-22 O.S.1991, §§ 926 (now 926.1), 927 (now 927.1), 970, 971, and 973-but seems, at least to me, to read them with a certain result in mind.

¶5 Before analyzing those statutes, we must first remember that "[t]he procedure, practice and pleadings in the courts of record of this State, in criminal actions or in matters of criminal nature, not specifically provided for in this code, shall be in accordance with the procedure, practice and pleadings of the common law". 22 O.S.1991, § 9.2 (emphasis added) In this particular case the Legislature has "specifically provided for" the applicable procedure to be used, and this Court has no business creating one through an expanded application of the legal concept of "allocution."

¶6 While I agree with the Court the trial judge properly denied the Appellant's request to present mitigation evidence to the jury, I cannot agree with the Court's failure to be bound by the statutory restrictions as to when it is proper for mitigation evidence to be presented.

¶7 Section 926.1 of our Criminal Code provides, "In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limits fixed by law, and the court shall render a judgment according to the verdict, except as hereinafter provided." (emphasis added). I believe this means the jury has the responsibility of determining guilt or innocence, but the jury's duties with respect to declaring punishment depend upon a demand from the defendant. Even where punishment is to be decided by the jury, Section 927.1 gives the trial court the ability to assess and declare punishment where the jury does not and Section 928.1 allows the trial court to disregard any recommended punishment that is beyond the highest limit provided by law.

¶8 Section 970 of Title 22 allows the defendant, at the time of formal sentencing, to explain to the trial judge "any legal cause" he has why judgment should not be pronounced against him. But then, section 971 qualifies the phrase "any legal cause" by giving specific grounds for such a showing of cause, i.e., insanity and those grounds that would support a motion for new trial in 22 O.S.1991, § 952. This appears to be a purely legal matter, except where there is the discovery of new evidence, and the full extent of "allocution" provided under Oklahoma law, except as set for below.

¶9 22 O.S.1991, § 973 allows "either party" at the sentencing stage to raise "circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment," but only in those cases where the issue of punishment has been left to the judge. In all other cases, i.e., when the defendant has demanded the jury to assess punishment or the trial judge has allowed the jury to assess punishment, there simply is no provision allowing for mitigation evidence at a sentencing hearing. This is a limitation enacted by the Legislature, which is undoubtedly constitutional.

¶10 Under ideal conditions, without regard for time, cost, or availability of judicial resources, it might be appropriate that sentencing proceedings in every criminal case, regardless of whether punishment was originally left to the judge or the jury, have the benefit of the presentation of aggravating and mitigating evidence. However, the Legislature has elected not to provide that procedural right.3

¶11 Certain evidence that may be in fact "mitigating" will inevitably be introduced throughout any trial, although that evidence is admitted for purposes of proving the elements of the crime or to support a legal defense. A criminal defendant's story will in fact be told, by the witnesses he chooses, the evidence he presents, and through his own testimony. But a criminal trial is not to be based upon so-called "character" evidence, and the same principle applies to sentencing proceedings.

¶12 As a result, in this case the judge was limited to the sentencing powers enunciated by the Legislature. See e.g., 22 O.S.Supp.1999, § 991a et seq. For these reasons I concur in the affirming of the judgment and sentence, but dissent to the Court's analysis of the statutory language discussed above.

FOOTNOTES

1 See also 22 O.S.1991, § 13.

2 In Cooper v. State, 889 P.2d 293, 301-02 (Okl.Cr.1995), reversed on other grounds, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996), we stated, "whatever Due Process is, it is not a wide-open, catch-all provision to be used by every defendant who loses a pre-trial motion or by any appellate court that may not agree with the trial court results. As the Supreme Court has observed: '[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. We, therefore, have defined the category of infractions that violate 'fundamental fairness' very narrowly.' (citations omitted) ... From this, we can gather that, however due process is defined, it is satisfied if a defendant has notice and an opportunity to be heard at a public proceeding at which all constitutional and statutory provisions are observed according to those rules and forms which have been established for the protection of private rights, in such a way that it operates on all alike."

3 In the original Truth in Sentencing Act the Oklahoma Legislature enacted a scheme for sentencing in non-capital cases, which allowed the presentation of aggravation and mitigation evidence before a sentencing judge, after a finding of guilt either by plea or trial. However, the Legislature subsequently retreated from that enlightened procedure. As a result, we must apply the law as it currently exists.