Marshall v. State5/12/1998
the continuing threat aggravating circumstance. See Sellers v. State, 809 P.2d 676, 690, (Okl.Cr.), cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991); Fisher v. State, 736 P.2d 1003, 1009 (Okl.Cr.1987), rehearing denied, 739 P.2d 523 (Okl.Cr.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988); VanWoundenberg v. State, 720 P.2d 328, 336-337, (Okl.Cr.), cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986). Additionally, we have determined that there is no doubling of aggravating circumstances where the aggravating factors do not refer to the same aspect of the defendant's crime. Cf. Woodruff v. State, 846 P.2d 1124, 1145-46 (Okl.Cr.), cert. denied 510 U. S. 934, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993); Green, 713 P.2d at 1039-41. This proposition is without merit.
Finally, Petitioner asserts that the trial court's finding that the mitigating evidence did not outweigh the aggravating circumstances was clearly erroneous and resulted from the State's denigration of his mitigating circumstances by characterizing them as minimal and as amounting only to excuses. Petitioner complains that the trial court's Conclusion that the mitigating circumstances lacked any element of remorse is not supported by the evidence. Further, the statement he made during his interrogation does not show lack of remorse but a "resigned expression and false bravado of a man who has just realized that he was duped into telling police that he had committed a murder that he, from that point on, adamantly denied." Petitioner claims the trial court did not consider Dr. Altshuler's opinion regarding cultural factors. Petitioner claims that the trial court considered the pre-sentence investigation report in violation of Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) and Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988).
The record does not show that the trial court used the pre-sentence investigation report in the sentencing proceeding. The record is clear as to the factors the trial court used in making its decision to impose the death penalty. The decision maker in this case was a Judge, not a jury, and unless proven otherwise, we will presume the decisions made with respect to sentencing were in compliance with the law and without passion or prejudice. We find no error.
Mandatory Sentence Review
Pursuant to 21 O.S.1991, Section 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of aggravating circumstances as enumerated in 21 O.S.1991, Section 701.12. We shall first determine whether the evidence was sufficient to support the imposition of the death penalty.
The trial court found the following aggravators:
The murder was especially heinous, atrocious or cruel; and The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
In reviewing the evidence presented by the State, we find that the murder was especially heinous, atrocious, or cruel, in that Petitioner held the victim, choking and struggling, under water. He pulled her up, and when she continued to cough, he held her under again until she quit. We further find that the callous nature of the crime, and Petitioner's blatant disregard for the importance of human life, render him a continuing threat to society. The evidence substantially supports the finding of the two aggravators.
The following mitigating circumstances were cons
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