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Bland v. State5/16/2000
ion of the prior first degree manslaughter conviction to support the "prior violent felony" aggravator and the details of that offense, together with the details of the kidnapping to support the "continuing threat" aggravator. This assignment of error is denied.
B.
Appellant raises several challenges to the "continuing threat" aggravator in his sixteenth assignment of error. Initially, he challenges the constitutionality of the aggravator. He recognizes this Court has previously rejected his arguments but urges this Court to reconsider its position. We have reviewed Appellant's argument and are not persuaded to revisit the issue. See Turrentine, 965 P.2d at 979; Johnson v. State, 928 P.2d 309, 316 (Okl.Cr.1996) and cases cited therein.
Appellant next challenges the "continuing threat" jury instruction, Oklahoma Uniform Jury Instruction-Criminal No. 4-74. His argument is twofold. First, he argues the instruction failed to properly set forth the requirement that the jury had to find that the defendant would commit "future acts of violence". He contends that by failing to require the jury to focus on the future threat of violence, an essential element of the aggravating circumstance was omitted from the jury's consideration. Secondly, Appellant asserts the use of the term "probability" is confusing and causes the instruction to be overbroad in its application. He argues that "probability" is a statistical term and the "use of the term 'probability' in [the statutory] sentencing scheme violates the statistical rule of probability."
Oklahoma Uniform Jury Instruction- Criminal No. 4-74, given to the jury in Instruction No. 42 provides:
The State has alleged that there exists a probability that the defendant will commit future acts of violence that constitute a continuing threat to society. This aggravating circumstance is not established unless the State proved beyond a reasonable doubt:
First, that the defendant's behavior has demonstrated a threat to society; and
Second, a probability that this threat will continue to exist in the future. (O.R. 398).
The Legislature set forth the aggravating circumstance of "continuing threat" in 21 O.S.1991, § 701.12(7). That provision reads: " he existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society . . . ." Instruction No. 42, set forth in the language of the statute, is a correct statement of the law which properly channels the discretion of the jury. Hawkins v. State, 891 P.2d 586, 596 (Okl.Cr.1994), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).
In Short v. State, 980 P.2d 1081 (Okl.Cr.), cert. denied, ___ U.S. ___, 120 S.Ct. 811, 145 L.Ed. 2d 683 (1999) the first part of Appellant's argument was specifically raised and addressed by this Court. In rejecting this challenge to OUJI-CR (2d) 4-74 we stated:
Appellant also challenges the use of Instruction No. 4-74, OUJI-CR (2d). He contends that instead of limiting the aggravating circumstance of "continuing threat", the instruction actually broadens its application by leaving out any reference to violence. A review of the instruction does not support Appellant's argument. The first paragraph of the instruction explicitly refers to the allegation that there exists a probability that the defendant will commit future acts of violence. That the subsequently listed two criteria which must be proven do not mention violence does not negate the burden on the State to prove a probability that the defendant will commit future acts of violence that constitute a continuing threat to society as listed
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