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Davis v. State12/14/2004
ged in an indictment or information and then be presented and established at a preliminary hearing for a death sentence to be constitutionally sound.
We have previously rejected this claim. Primeaux v State, 2004 OK CR 16, 14-16, 88 P.3d 893, 899-900, cert. denied, ___U.S.___, 125 S.Ct. 371, ___L.Ed.2d___ (2004). See also Thacker v. State, 2004 OK CR 32, 9-23, ___P.3d___. We find these cases dispositive. Accordingly, no relief is required.
MANDATORY SENTENCE REVIEW
Pursuant to 21 O.S.2001, § 701.13(C), we must now 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.2001, § 701.12. In regard to the first inquiry, we find that Davis' death sentence did not result from passion, prejudice or other arbitrary factor. In regard to the second inquiry, the jury was instructed on the three aggravating circumstances alleged and found the existence of only one aggravating circumstance: (1) that the murder was especially heinous, atrocious or cruel. As discussed in Proposition 7, we find that this aggravating circumstance is supported by sufficient evidence. Additionally, the jury was instructed on ten (10) specific mitigating circumstances and instructed to consider any other mitigating circumstances that were present. Upon reviewing the record, we find that the aggravating circumstance outweighed the mitigating circumstances and that Davis' death sentence is factually substantiated and appropriate. Accordingly, the Judgment and Sentence of the trial court is AFFIRMED.
AN APPEAL FROM THE DISTRICT COURT OF KAY COUNTY
THE HONORABLE LESLIE D. PAGE, ASSOCIATE DISTRICT JUDGE
Brian Darrell Davis, Appellant, was tried by jury in the District Court of Kay County, Case No. CF-2001-733 , where he was convicted of one count of First Degree Malice Murder and one count of First Degree Rape, After Former Conviction of Two Felonies. The jury set punishment at death for the murder after finding the murder was especially heinous, atrocious or cruel and one hundred (100) years imprisonment for the rape. The Honorable Leslie D. Page sentenced Davis accordingly. From this Judgment and Sentence, he appeals.
AFFIRMED.
STRUBHAR, J.
JOHNSON, P.J.: CONCUR
LILE, V. P.J.: CONCUR IN RESULT
LUMPKIN, J.: CONCUR
CHAPEL, J.: CONCUR
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