OK COURT OF CRIMINAL APPEALS -- THIS IS JUST WRONG!!!

Sometimes, the dry and dusty old Oklahoma Bar Journal is hard to read. The issue that came in today's mail was one of those that was especially difficult to get through but for a different reason. The following is an excerpt from Malone v. State, 2007 OKCR 34 :

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¶5 What happened on Booher Road from the time of Green’s arrival until his death can be largely pieced together from the physical evidence at the scene, statements made by Ricky Ray Malone, and the contents of a videotape recorded by the “Dashcam” video recorder mounted in Green’s vehicle. According to statements made by Malone, Trooper Green arrived at the scene and attempted to rouse Malone by talking to him and shining a flashlight in his face. Officers who investigated testified that it was obvious from evidence left at the scene that someone had been manufacturing methamphetamine outside his or her car that night. It would have been obvious to Green as well. ⁷

¶6 Green apparently informed Malone that he was under arrest and was able to get a handcuff on his right wrist, before Malone decided that he was not going to go quietly back to jail. ⁸ Malone somehow broke free and a battle ensued between the two men that tore up the grass and dirt in the area and knocked down a barbed wire fence. Malone’s John Deere cap ended up in the barbed wire fence, and Green’s baton and a Glock 9 mm pistol were left lying in the ditch. ⁹ The fight resulted in numerous scrapes, cuts, and bruises to both men.

¶7 Trooper Green’s Dashcam recorder was switched on sometime during the course of this monumental struggle. ¹⁰ Because the Dashcam was directed forward, the video shows only the things that appeared immediately in front of Green’s vehicle. The video never shows Trooper Green, but the audio on the videotape, though garbled and sometimes hard to understand, contains a poignant and heartbreaking record of the verbal exchanges between Malone and Green during the six minutes preceding Green’s death.

¶8 The initial sounds on the audio are mostly grunting and unintelligible, as the men seemingly struggle for control. Then Malone appears to gain control and tells Green to lay there and not turn over. Green tells Malone that he didn’t have a problem with Malone and that he came to help him. He tells Malone, “Hey, run if you want to go, but leave me.” Green pleads, “Please! Please! I’ve got children.” Green also tells Malone that he is married and begs Malone not to shoot him. Meanwhile, Malone repeatedly asks Green where “the keys” are, apparently referring to the keys for the handcuff that is on his wrist, and demands that Green stop moving and keep his hands up. Malone threatens to kill Green if he moves, but also promises that he won’t shoot him if Green holds still. Malone searches at least one of Green’s pockets, but fails to find the keys. ¹¹ When Green suggests that he has another set of keys in his vehicle, Malone responds, “I don’t need to know.” Green apparently recognizes the significance of this statement and after a few seconds begins pleading again, “Please don’t. For the name of Jesus Christ. He’ll deliver. Lord Jesus!” ¹² At that moment a shot can be heard, followed by eleven seconds of silence, and then another shot. ¹³

¶9 Just after the second shot, Malone appears in the videotape, walking in front of Trooper Green’s car and behind the open trunk of his white, four-door vehicle. Malone can be seen hurriedly “cleaning up” his makeshift methamphetamine lab—dumping containers of liquid that are sitting on the ground, loading numerous items into the back seat and trunk, throwing and kicking things off the road, and lowering the front hood. ¹⁴ Less than two minutes after shooting Green, Malone starts his car to drive away, but the car stalls. After almost thirty seconds, the car starts, and by 6:55 a.m. Malone has left the scene ....

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¶52 In this prepared statement, which covers over nine transcript pages, Mrs. Green described how she felt like she “prayed Nik into [her] life,” since she prayed that God would send her “a Godly man, a good husband, and a loving dad,” and her husband was all of these things and more. ¹⁰² She described being in denial about his death for months and about how hard it was to find herself raising three children alone. She described experiencing deep, gripping, physical pain, which she attributed to “broken heart syndrome,” and having difficulty breathing and feeling her heart racing, with no apparent physical cause. She also described the emotional struggles of “living single in a double world” and always feeling “lost and out of place.” Mrs. Green testified that she had lost her best friend and soulmate, but that the hardest thing was “to press on with our daughters.” She testified that their oldest child, Cortni, suffered from depression and severe headaches and had become afraid of the dark; that their middle daughter, Brooklyn, suffered from abdominal pain, for which a physical cause couldn’t be found, and that she wouldn’t talk about her feelings and fears to anyone; and that their youngest child, Morgyn, frequently had nightmares and pronounced separation anxiety.

¶53 Mrs. Green testified that prayer had always been important in the family, but that now their prayers “reflect pain and their longing for their dad.” She testified about how she wanted to lift the spirits of the family toward the future, but that they were “caught in the present, our lives revolving around what we’ve lost, and, quite frankly, who is responsible for putting us in this situation.” She testified that birthdays, anniversaries, and holidays had become “horrible experiences that we just have to endure and just hope that we can get the day over with as soon as possible.” She added that “the most painful thought” she could conjure up was of the future weddings of her three daughters, with “no proud father to walk them down the aisle.”

¶54 Mrs. Green then concluded her testimony with the following recommendation of punishment for Malone:

I know, as you all do here today, that Nik begged for his life that day. He asked for mercy. There was no mercy shown. Here on earth our government and those in positions of authority, including law enforcement, are given a devine [sic] charge outlined in Romans 13 of the Holy Bible. Nik took that charge very seriously every time he went 10-8. Perhaps that is why he was honored to be named Trooper of the Year two of the six years he proudly served the citizens of the State of Oklahoma.

Also found in that same chapter of the book of Romans is our charge as citizens to do our duties and obligations, including those as jurors in a court of law, as a devine [sic] undertaking in upholding and enforcing the laws of our country. We know that Nik was murdered beyond a reasonable doubt. It is for this reason today, ladies and gentlemen, that I beseech you to show no mercy to him. I beg for you to give him the maximum penalty under the laws of the State of Oklahoma, which is the death penalty, and leave the business of mercy for Malone in the hands of the Heavenly Father, where it belongs.

Defense counsel asked only a few questions, in an attempt to establish that since her husband’s death, Mrs. Green had spoken at schools and other organizations about the dangers of methamphetamine and how it can ruin lives.

¶55 The State acknowledges that this Court has consistently held that victim sentencing recommendations should be limited to “a straight-forward, concise response to a question asking what the recommendation is” or “a short statement of recommendation in a written statement, without amplification.” ¹⁰³ The State does not attempt to argue that Mrs. Green’s sentencing recommendation can pass this test—or even that it is not plain error. Rather, the State argues that any error in this regard was harmless, in light of the totality of the evidence presented at Malone’s trial.

¶56 We find clear plain error in this regard. We do not blame or criticize this grieving, widowed spouse for her statements or question the sincerity or appropriateness of the feelings she expressed. Nevertheless, the parties who are repeat players in our criminal justice system—the trial court, the prosecutor, and defense counsel—all had an obligation to ensure that her victim impact testimony was appropriately limited, in the manner required by this Court. ¹⁰⁴ We are particularly troubled by Mrs. Green’s sentencing recommendation, which so obviously violates the simple rules established by this Court.

¶57 Mrs. Green literally “beseeches” and “begs” the jury to sentence Malone to death. She focuses on the idea of mercy, notes that her husband begged for mercy, but was given none, and implores the jury to show “no mercy” to Malone and “leave the business of mercy for Malone in the hands of the Heavenly Father, where it belongs.” Furthermore, and particularly troubling to this Court, Mrs. Green invokes the Bible and suggests that jurors have a religious obligation, beyond civic duty, in their work as jurors, in a way that seems to suggest that giving a death sentence may be part of the jury’s “divine undertaking in upholding and enforcing the laws of our country.” This invocation of religious belief and obligation in the context of a capital sentencing recommendation is totally inappropriate. ¹⁰⁵ We find that the trial court committed plain error in allowing this extended and unduly prejudicial sentencing recommendation to be presented at Malone’s trial. ¹⁰⁶

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¶116 In Proposition XI, Malone argues that the cumulative effect of the prejudicial errors committed in the second stage of his trial, combined with improper prosecutorial argument in the State’s final closing remarks, together produced a situation where the jury’s decision to sentence him to death was influenced by passion, prejudice, and other arbitrary factors.²⁴² Malone notes that during voir dire the prosecutor asked prospective jurors, over and over again, to remember that this case was not just about Malone, it was about Trooper Green and those he left behind. The prosecutor concluded his initial second-stage closing argument, just before defense counsel got up to present his final remarks, by referring back to this voir dire.²⁴³

¶117 If there was any uncertainty that the prosecutor was referring to Trooper Green’s family and also Green himself, it was erased by his final second-stage closing argument. The prosecutor addressed the jurors directly about how each of them would be “marked by this case in some way or the other,” but also noted, “You’ll walk out of here probably later today and you’ll go on with your lives.” He contrasted this ability of jurors to walk away and move on with the plight of others, who “will not have that option.” He continued as follows:

I pray that you’re never involved in a case from the standpoint of losing a family member or being a victim. You can’t imagine what it’s like to go through. You can’t take the law into your own hands as much as [you] may want. You cannot take the law into your own hands. Everything that’s been done in this case has been done for you. The victims—they have to rely on the investigators. They got to hope investigators they’ve never met, don’t know anything about—they’ve got to hope those investigators can get enough information, enough evidence to satisfy twelve people so that some day justice can be done.

They’ve got to let their loved ones go to Oklahoma City where a doctor opens them up, checks organs so that that doctor someday can testify to a panel of twelve people that they’re certain that the cause of death is a gunshot to the back of the head.

You can’t hire your own attorney to prosecute these cases. You got to rely on a prosecutor that you’ve never met before. You hope they’ve got the time and the fortitude to try the case like it ought to be.

But you know the hardest part if you’re the victim? The hardest part is right now. Twelve people that didn’t know Nikky, twelve people that don’t know anything about them other than seeing them on the stand for 15, 20 minutes—is going to decide—make a decision on the person that took Nikky Green’s life. Each of those people—and it was difficult. Difficult to take that stand and say the things they had to say. But something that’s very important: The law says that we have the right to consider the wishes of the family. Each of those people asked you for the death penalty, and it’s appropriate. If you’re ever going to set on a case where the death penalty is warranted, you’re setting on it right now.

When you go back there to deliberate, there’s some strengths on this jury for the death penalty. There’s going to be some people, probably, that may have some reservations. Work with them, talk with them; spend some time with them. We’ve been 15 months waiting on this verdict; if it takes an hour, a day, a week, work with those that may not want the ultimate punishment. This case cries out for it. Anything less would be a travesty.

The prosecutor returned to this same theme again as he began wrapping up his final remarks.²⁴⁴

¶118 The prosecutor concluded by returning to the theme that the case was about more than Malone; it was about Trooper Nik Green. He did this by directly contrasting the situation of Malone, though incarcerated, with the plight of his dead victim. The prosecutor ended Malone’s trial with the following comparison:

And I’d like you to think about this when you go back there—and we heard this from Colleen. This man has human contact. He has known human contact since early morning of December 22^nd [sic]. He’s got to visit with his wife. He’s got to determine how his kids are doing. He’s been able to determine what’s happening in the world.

Nik Green has had none of that since shortly before 7 that morning. Nik Green will never know human contact again. Nik Green will never read a magazine, a paper. He’ll never talk with his wife. He’ll never see his kids grow up. He’ll never know how they turn out in life.

The death penalty. This case cries out for it. You, the strengths on this jury, bring it back.
I thank you.

Malone’s jury was then released to begin its deliberations. The jurors returned two hours later, bringing with them the death penalty verdict for which Mrs. Green and the prosecutor had so powerfully “begged” and “prayed.”

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¶123 For the reasons discussed in this opinion, the CONVICTION of Malone for the first-degree murder of Trooper Nik Green is AFFIRMED. Malone’s DEATH SENTENCE, however, is REVERSED, and this case is REMANDED to the District Court FOR RESENTENCING.²⁵⁰ Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=450924

From Judge Lumpkin's dissent:

¶5 As for the victim impact evidence, I agree that the trial court erred in failing to hold a hearing to determine the admissibility of the evidence, pursuant to Cargle, and that trial court and counsel alike failed in their responsibility to review the victim impact evidence and determine its admissibility prior to the second stage. If a hearing had been held, hopefully it would have prevented the overly emotional victim impact evidence from being presented. However, I find any errors in the admission of the victim impact testimony harmless beyond a reasonable doubt. Evidence of Appellant’s cold-blooded execution of Trooper Green, as seen on the Dashcam video, when viewed in conjunction with the evidence in aggravation of Appellant’s prior assaults and attempts to escape, show that no reasonable juror would have chosen any punishment other than death. To say that the death sentence in this case was improperly influenced by the victim impact evidence is to turn a blind eye to the other legally admitted evidence. I find the majority is overly generous in giving Appellant another chance to find one juror who will save him from the death penalty.

¶6 Further, I find nothing inappropriate about references in victim impact evidence to God and the Bible. It seems as though courts have become overly phobic of any references to God or the Bible. When we review the works of great American orators and trial lawyers such as Abraham Lincoln, William Jennings Bryan and even the agnostic Clarence Darrow, we find quotations from the Bible and references to God. It is hard to determine exactly when such comments became anathemas, but there is certainly no basis in history for such an approach. It is interesting to note the majority finds such references too emotional when included in victim impact evidence or made by the State. However, defense counsel is criticized for not being emotional enough and no objection is raised to his closing arguments calling on the name of God to save his client. The majority’s standard for determining what comments are appropriate or inappropriate seems inconsistent.