Roger Dale Stafford, a white man, was 27 when he was sentenced to death in McClain County for a murder there, but he was best-known as the notorious steakhouse murderer, having killed 6 people in an Oklahoma City restaurant, including 5 teenagers.

He also killed 3 members of a Texas family, including a 10- year-old boy. Having spent 15 years and 9 months on death row, Stafford was viewed as the poster boy for appellate reform. He was executed on July 1, 1995.

The Most Hated Man in Oklahoma

In June 1978, Air Force Sgt. Melvin Lorenz and his wife, Linda (also a sergeant in the Air Force) were headed north from their duty station in San Antonio, Texas.

Their reason for the trip was unpleasant — it was to attend the funeral of Melvin Lorenz’s mother.

Little did the family know as they passed through the small burg of Purcell, Okla., that death was closer than they thought.

As they drove north, they spotted a single woman sitting in her car on the side of the road with the hood up. Melvin Lorenz was driving and pulled to the shoulder to offer assistance. It was a set-up, and the Lorenz family, acting as Good Samaritans, had walked right into the trap created by a family of killers.

One of the killers, Verna Stafford later described for a spellbound courtroom how her husband, Roger, and his brother, Harold, had been lurking out of sight until Melvin approached the car.

When Melvin Lorenz walked over, she said, Roger confronted him with a gun.

“Roger demanded his wallet and he wouldn’t give it to him,” she said. “Roger was upset with him and Roger shot him.”

“The lady came up to my side of the car” screaming, Mrs. Stafford said in a packed McClain County courtroom.

Linda Lorenz tried to hit Verna but Verna fought back.

“I caught her on the side of the face and she lost her balance and Roger shot her.”

The Staffords then “heard a little voice that was calling for its mother and its father,” from a camper atop the pickup truck, she said, referring to Melvin and Linda’s son, Richard.

“Roger had said something to the effect we should not leave anyone behind as a witness,” she testified.

Roger then used a knife to cut a hole in a screen in the camper and fired, killing Richard Lorenz.

The killers dumped the bodies of Melvin and Linda in a field beside the road. Melvin was 38 years old, his wife was 31, and Richard was all of 13.

The entire crime took about 20 minutes.

The Staffords then drove down the road, stopped and heaved Richard’s body in a field. Then, with Harold and Roger in the pickup and Verna following, they drove to Will Rogers Airport in Oklahoma City and abandoned the truck — but not before stopping at a Stillwater restaurant for a bite to eat.

Verna added that Lorenz had offered to give the Stafford some of his money, but not all of it.

On the stand, Verna said it was her idea to lure robbery victims by posing as a stranded motorist. She told the court she and her husband needed money to pay for a place to live in Tulsa with their three children.

Harold’s motive in participating, Verna said, was to get money to pay for an abortion for his girl friend.

The murderous trio made the trip from Tulsa specifically to commit crimes. Their original plan called for Roger and Harold to rob a store, but everywhere they looked, their targets were too busy. They then thought about robbing some motels in Pauls Valley, but that didn’t work out either. Frustrated and headed back to Tulsa empty handed, Verna suggested the stranded motorist ploy.

Killing came easy for the Stafford family and particularly for Roger. He told his jail cellmate that he “just banged away” when the time came to fire on the Lorenz family, and that the age of his victims didn’t matter.

“It didn’t make any difference whether the person was 2 or 82,” the witness remembers Roger Stafford saying.

Felony charges of possession of stolen property and larceny were subsequently dismissed against the inmate, who denied on the stand that any deal had been made with prosecutors.

About three weeks after the Lorenz murders, the Staffords struck again.

This time, six innocent people died.

On July 16, 1978, the killer trio again drove from Tulsa to Oklahoma City to rob the Sirloin Stockade restaurant. They waited in the restaurant parking lot until all the customers had left. At around 10:00 p.m. they left their automobile and Roger Stafford knocked on the side door of the restaurant. The manager answered the door and was greeted by Roger and Harold Stafford pointing guns at him. They forced him to take them to the cash register and the office safe.

Inside the restaurant the manager made a terrible decision that cost him and five other people their lives. He began taunting the Staffords, saying that he could not understand why people rob others instead of working for themselves. Roger Stafford hit the manager and demanded that he call his employees to the cash register. The manager complied with the demand.

While Harold and Verna held the workers at gun point, Roger and the manager emptied the safe of $1,290. He then ordered everyone into the walk-in freezer.

Verna would later testify that Harold reminded Roger that no one was to be hurt.

“They’ll get what they deserve,” Roger replied.

He then shot the only black employee, and both men opened fire on the remaining employees. Verna Stafford testified that she heard a lot of gun fire and screaming.

Roger then told Verna that it was time for her to take part. He placed his gun in Verna’s hand and helped her pull the trigger.

“I opened the freezer door, and all I could see was blood and brains,” said Sgt. Lannie Mitchell, the first police officer on the scene. “It was totally incomprehensible.”

In a bit of Karmic justice, Harold Stafford died in a motorcycle wreck a week after the Sirloin Stockade murders.

It was good, old-fashioned, flat-foot police work that brought Roger and Verna Stafford to justice. In fleeing the scene of the murders, they nearly crashed their beat-up station wagon into another vehicle. That driver managed to get a good look at the man behind the wheel — Roger Stafford.

In addition, a man waiting to pick up his girlfriend who worked at the restaurant (and who was one of the victims) also gave a description of the green station wagon.

For six months, investigators followed leads in five states and found no one. But on Jan. 3, 1979 the police received an anonymous phone call later traced to a drunken Roger Stafford. Stafford named his wife and brother as the killers.

Police eventually traced Verna. Stafford to Chicago, where they arrested her. Mrs. Stafford then implicated her husband. Police arrested him March 13, 1979, in a YMCA lobby in Chicago.

Stafford received death sentences for all of his murders, but he predicted the sentence would never be carried out.

“I’m too good looking,” Stafford said.

He was wrong on both counts. The State of Oklahoma put him to sleep permanently in 1995.

His last words might be considered a plea for mercy.

“Oh, God,” he said as the chemicals began pumping into his veins.

MarkGribben.com

Only in Oklahoma: Killing sprees of '78 sent Stafford to doom

TulsaWorld.com

March 8, 2007

Roger Dale Stafford, one of Oklahoma's most notorious killers, died of a lethal injection at the state penitentiary, proclaiming his innocence and his love for the wife he married while in prison.

STAFFORD v. STATE
1983 OK CR 86
665 P.2d 1205

Case Number: F-79-722
Decided: 06/20/1983

ROGER DALE STAFFORD, SR., APPELLANT,
v.
THE STATE OF OKLAHOMA, APPELLEE.

Oklahoma Court of Criminal Appeals 

An appeal from the District Court of Oklahoma County; Charles L. Owens, District Judge.

Roger Dale Stafford, appellant, was convicted on six counts of Murder in the First Degree in Oklahoma County Case No. CRF-79-926. The jury imposed the death penalty on all counts. The appellant perfected an appeal to this Court. The judgments and sentences are AFFIRMED.

Garvin A. Isaacs, Isaacs & Angel, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Appellate Crim. Div., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

[665 P.2d 1209]

¶1 Roger Dale Stafford was convicted on six counts of Murder in the First Degree and sentenced to death.

¶2 On July 16, 1978, Roger Stafford, his wife, Verna Stafford, and his brother, Harold Stafford, drove from Tulsa to Oklahoma City to rob the Sirloin Stockade Restaurant. The trio waited in the restaurant parking lot until all the customers had left. At around 10:00 p.m. they exited their automobile and Roger Stafford knocked on the side door of the restaurant. The manager answered the door and was greeted by Roger and Harold Stafford pointing guns at him. They forced him to take them to the cash register and the office safe.

¶3 Inside the restaurant, the manager began taunting them, saying that he could not understand why people rob others instead of working for themselves. Roger Stafford hit the manager and demanded that he call his employees to the cash register. The manager complied with the demand.

¶4 Harold and Verna Stafford held the employees at gunpoint while the appellant and the manager emptied the office safe which contained about $1290.00. After they obtained the money, the employees were ordered inside the restaurant's walk-in freezer. The appellant then asked Harold Stafford to help him in the freezer. Harold [665 P.2d 1210] reminded the appellant that no one was to be hurt. The appellant retorted that "they are going to get what they deserve." He then shot the only black employee, and both men opened fire on the remaining employees. Verna Stafford testified that she heard a lot of gunfire and screaming.

¶5 Roger Stafford then told Verna that it was time for her to take part. He placed his gun in Verna's hand and helped her pull the trigger. All six Sirloin Stockade employees died as a result of the shootings.

I

¶6 The appellant argues that 21 O.S. 1981 § 701.11 [21-701.11] unconstitutionally shifts the burden of proof to the defendant by requiring him to present evidence in mitigation of the death penalty. Section 701.11 mandates that in order to impose a sentence of death the jury must unanimously find at least one aggravating circumstance beyond a reasonable doubt. Additionally, if the jury does find that an aggravating circumstance exists, it must determine whether the aggravating circumstance(s) is outweighed by the finding of one or more mitigating circumstances.

¶7 Section 701.11 clearly places the burden of proof on the State to prove beyond a reasonable doubt the existence of any aggravating circumstances. The defendant is merely required to come forward with evidence of any mitigating circumstances, if he wishes to do so. The mitigating circumstances which exist in any given case are peculiarly within the knowledge of the defendant. We hold that this statutory scheme does not offend the Eighth or the Fourteenth Amendments of the United States Constitution. Parks v. State, 651 P.2d 686 (Okl.Cr. 1982). We further find that this procedure was implicitly upheld by the U.S. Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

II

¶8 Stafford also contends that he should have been granted a preliminary hearing on the aggravating circumstances the State intended to prove. We addressed this issue in Johnson v. State, 665 P.2d 815 (Okl.Cr. 1983), and Brewer v. State, 650 P.2d 54 (Okl.Cr. 1982), where we rejected the argument that a preliminary hearing is required on the bill of particulars in a capital case. We find these cases to be dispositive of the issue at bar.

III

¶9 Appellant next contends that he was denied the effective assistance of counsel. This case was tried prior to Johnson v. State, 620 P.2d 1311 (Okl.Cr. 1980), wherein we prospectively adopted the "reasonably competent assistance of counsel" test. Accordingly, appellant must show that counsel's performance was so ineffective that the trial was reduced to a farce or mockery of justice, or was shocking to the conscience of this Court, or that counsel's services were only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. The burden is a heavy one, and is not satisfied by simply pointing out possible errors in counsel's judgment, or lack of success in the defense. See Phillips v. State, 650 P.2d 876 (Okl.Cr. 1982).

¶10 A number of alleged instances of attorney ineffectiveness are set out in appellant's briefs. He contends that the motion for new trial was "feeble", reflecting incompetence. He appears to complain of the omission from that pleading of many of the allegations of error now urged on appeal.

¶11 The office of the motion for new trial is to put the trial judge on notice of alleged errors so that he or she can take curative action, and specific statement of the allegations of error in the motion for new trial is necessary in order to preserve such error for appellate review. See McDuffie v. State, 651 P.2d 1055 (Okl.Cr. 1982). We have fully reviewed the errors alleged on appeal, and we find that none are sufficient to warrant reversal or modification. The omission of nonmeritorious arguments from the motion for new trial does not evidence attorney incompetence. See [665 P.2d 1211] People v. Tedder, 83 Ill. App.3d 874, 39 Ill. Dec. 53, 404 N.E.2d 437 (1980).

¶12 Appellant next contends that trial counsel permitted television cameras in the courtroom to appellant's detriment. However, it is clear that appellant personally approved the presence of such equipment after being fully advised of his rights in open court by the trial judge. [Transcript of Hearing as to Televised Proceedings, 3-6.] This is consistent with his prior action at an earlier stage of the proceedings while represented by other counsel. [Appearance Docket, O.R. 364.]

¶13 There is no indication that Canon 3(A)(7), 5 O.S. 1981, Ch. 1, App. 4, which limits the number and kind of cameras and microphones and enjoins the disruptive use of such equipment, was not strictly complied with in this matter. Finally, the jury was sequestered, and there is no showing that they were exposed to the resulting news coverage.

¶14 Appellant further contends that trial counsel unethically solicited the representation, improperly contracted for publication rights in the case, and breached a promise to provide all the funds necessary for the defense. These contentions rest on alleged facts wholly outside the record. We denied a motion to remand for an evidentiary hearing on similar allegations. Stafford v. State, F-79-722 and F-80-256, November 4, 1981.

¶15 In order to prove the necessary facts, appellant has submitted with his brief the unverified affidavit of present counsel relating the hearsay statements of named and unnamed third persons, and a purported but unauthenticated page from defense trial notes in the case. We deem it improper to permit the litigation of such factual issues by ex parte affidavits and attachments on appeal. Such procedure has been condemned in other jurisdictions. See United States v. Thompson, 475 F.2d 931 (D.C. Cir. 1973); State v. Gross, 221 Kan. 98, 558 P.2d 665 (1976); Pollan v. State, 612 S.W.2d 594 (Tex.Cr.App. 1981); People v. Penn, 70 Mich. App. 638, 247 N.W.2d 575 (1976).

¶16 However, we are of the opinion, from a careful reading of the entire transcript and original record, that there is a sufficient record before us to resolve the appellant's allegation that he was prejudiced by the existence of a contract between himself and trial counsel, J. Malone Brewer, because Brewer failed to uphold his end of the bargain, to wit: the investigation and presentation of a defense at trial. We have reviewed each of the alleged flaws in counsel's performance in light of the alleged conflict of interest. The trial transcript amply demonstrates that Stafford was neither prejudiced nor otherwise adversely affected by the possible existence or breach of any contract with his trial counsel. See United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980), cert. den. 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325. Even if there was proof of the existence of a contract, it would merit his cause nothing. An ethical violation, standing alone, does not constitute ineffective assistance of counsel.

¶17 Appellant urges that trial counsel failed to investigate appellant's psychiatric background since he did not offer such evidence in mitigation during the sentencing hearing. This argument supposes the existence of favorable psychiatric testimony. The record does not support the supposition.

¶18 Appellant was delivered to Eastern State Hospital in Vinita, Oklahoma, on March 27, 1979, for various treatments, including "complete psychological profile" and "complete psychiatric examination and evaluation." He was to be held up to sixty days, but was discharged a short time later on April 18, 1979. Prior to trial, trial counsel moved for the production of the psychological evaluation expressing the belief that it would be exculpatory. Although the disposition of this request is not clear, a communication from the prosecutor's office to defense counsel dated October 4, 1979, indicates that all requested reports were delivered to trial counsel.

¶19 Appellant has the burden of proving his ineffectiveness of counsel argument. Phillips v. State, supra. The crucial [665 P.2d 1212] psychological evaluation is not in the record on appeal, and we may not assume that it was favorable to the defense. Appellant's suggestion that he was operated on for a brain tumor at the age of twelve, and that he has been in and out of mental institutions, is wholly unsupported by the record.

¶20 Appellant next urges that trial counsel failed to interview him before trial. This is based on an isolated portion of appellant's testimony at trial.¹ Viewed with other relevant testimony, it appears that counsel did in fact confer with appellant and that appellant merely meant to convey that counsel had not coached his testimony or told him what to say.²

¶21Appellant further urges that counsel failed to offer any evidence during the second stage sentencing hearing, and that the jury therefore had no basis for deciding punishment. However, both the State and the defense opted to rely on the evidence submitted in the first stage guilt proceeding, neither side offering additional evidence in the second stage. [Tr. 1176 and 1177.] The jury was instructed that it could consider in the sentencing stage any evidence admitted throughout the trial by either side. Appellant does not indicate what additional evidence could or should have been offered in the sentencing hearing. See Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981).

¶22 Appellant next argues that trial counsel called a former cellmate to the witness stand without first obtaining a sworn statement from the witness. On the morning of the fifth day of trial, the State produced a second former cellmate who testified concerning incriminating statements made by appellant. In order to blunt the effect of this testimony, the witness in question was called to the stand that afternoon. Appellant later testified that the witness had written him offering to testify for the defense and that he gave the witness' name to trial counsel. As late as 12:30 P.M. the day in question, the witness is alleged to have told counsel that he would testify favorably to the defense. However, the witness actually gave testimony damaging to appellant.

¶23 In hindsight, appellant's suggestion on appeal appears flawless. However, hindsight is not the proper measure of the adequacy of legal representation. See Walker v. State, 550 P.2d 1339 (Okl.Cr. 1976). Allowing counsel a necessary measure of discretion in judging the urgency for rebutting the prosecution's witness and given the witness' apparent recent affirmation of the tenor of his intended testimony, [665 P.2d 1213] counsel's action was, at most an error of judgment within the meaning of Phillips v. State, supra.

¶24 Appellant finally argues that counsel erred in failing to timely designate the voir dire proceedings for inclusion in the record on appeal. The original designation of record expressly excluded the voir dire proceedings. A later amended designation included voir dire, but there is no indication that it was ever served upon the court reporter. It now appears that the reporter's notes of voir dire are unavailable.

¶25 Whether or not voir dire and similar proceedings should be recorded is a matter of trial tactics, and a decision not to have such proceedings recorded is not ineffective assistance absent supplementation of the record by affidavit or pleading, showing alleged prejudicial occurrences. See Webb v. State, 612 P.2d 285 (Okl.Cr. 1980), applying Baker v. State, 593 P.2d 100 (Okl.Cr. 1978). See also Johnson v. State, supra. We find that the same rule should govern counsel's decision whether to designate for transcription voir dire and other proceedings.

¶26 In the case at bar, there is no basis for finding that counsel should have designated the voir dire proceedings. We note appellant's suggestion that jurors might have been excluded for cause at voir dire in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This suggestion is refuted by defense argument at trial that the judge improperly applied the majority opinion in Witherspoon at voir dire, rather than the specially concurring opinion in that case. [Tr. 10-14; O.R. 234-236.] It was alleged at trial that eight jurors were excused for cause under the majority opinion in Witherspoon, and the trial judge in Stafford's trial remarked that he "was amazed at the very low, small number who went off for that reason." [Tr. 14.]

¶27 In conclusion, trial counsel filed numerous pre-trial motions on appellant's behalf, interposed frequent objections during the prosecution's case, and vigorously cross-examined the State's witnesses. He placed appellant on the stand in an effort to establish an alibi defense. Though not offering evidence in the sentencing hearing, counsel argued mitigating circumstances to the jury and made an impassioned plea for appellant's life. The case against appellant was very formidable. We are unable to find on the record before this Court that appellant has sustained his burden of proving ineffective assistance of counsel.

IV

¶28 Stafford argues that the trial court erred in allowing the introduction of several color photographs in evidence. The six photographs in question depict five of the Sirloin Stockade employees shot to death in the freezer. The admissibility of photographs lies within the sound discretion of the trial judge. Irvin v. State, 617 P.2d 588 (Okl.Cr. 1980). At bar, the trial judge found that the probative value of the photographs outweighed their prejudicial effect. We do not find fault with this ruling. The photographs were probative to illustrate the medical examiner's testimony. They also enabled the jury to view the manner in which the victims were killed and, thereby, corroborated the testimony of Verna Stafford. See Chaney v. State, 612 P.2d 269, 275 (Okl.Cr. 1980).

V

¶29 Stafford advances that the trial court erred by allowing Verna Stafford to testify. He contends that Verna Stafford's testimony violated the husband and wife privilege under 12 O.S. 1981 § 2504 [12-2504]. Section 2504 provides in part:

A. A communication is confidential for purposes of this section if it is made privately by any person to his spouse and is not intended for disclosure to any other person.

B. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.

[665 P.2d 1214]

¶30 Verna Stafford testified in regard to the facts and circumstances surrounding the Sirloin Stockade murders. She stated that her husband, Roger Stafford, planned the robbery and subsequently caused the death of several of the employees. Our initial inquiry is whether Verna Stafford's testimony breached any confidential communications between her and Roger Stafford.

¶31 In Lavicky v. State, 632 P.2d 1234, 1236 (Okl.Cr. 1981), we stated that "[c]onfidential communications between husband and wife are those made when they're alone, or are those expressly made confidential, or are of a confidential nature induced by the marital relationship, the disclosure of which are calculated to disturb the marital relationship." In this case, the trial judge specifically limited Verna Stafford's testimony to her personal observations and conversations with her husband which were made in the presence of third persons. Clearly, the conversations between Verna and Roger Stafford in the presence of a third party were not of a confidential nature as is required under 12 O.S. 1981 § 2504 [12-2504](A).

¶32 The evidence at trial sufficiently established that Harold Stafford was present during most of the conversations between Verna and Roger Stafford. The trial judge specifically excluded all statements made privately between Verna and Roger Stafford, therefore, we conclude that Verna's testimony did not violate the husband-wife privilege, as protected under Section 2504(B).

¶33 In a related argument, Stafford contends that the trial court erred in admitting the testimony of Linda Lewis. Ms. Lewis overheard a conversation between Roger and Verna Stafford. Stafford argues that the conversation was intended to be confidential and therefore protected under Section 2504, the husband-wife privilege.

¶34 Ms. Lewis testified that she overheard a conversation between Roger and Verna in the parking lot outside her Tulsa motel window after the homicides. She related to the jury the following events:

Ms. Lewis: I was in my room, sir. I heard the commotion. I went to my window. I looked out, and I seen who it was. And, you know, I seen him hit her, and I opened my door —

Q. All right, excuse me. Just tell us, please, what you heard and saw? In the first place, are you — who was it that you saw?

A. I saw Roger and Verna.

Q. All right. Tell us what you first saw, please?

A. I saw Roger slap Verna, and she said, "I'm calling the police." And Roger said, "Go ahead. You would be in as much trouble as I would".

And she said, "I didn't kill them Roger. You did." Roger said, "You were there, and you were with us".

And I heard something else, and then Verna said, "No".

¶35 The appellant, citing Seigler v. State, 54 Okl.Cr. 141, 15 P.2d 1048 (1932), argues that where a conversation between husband and wife is intended to be confidential and the parties are unaware of an eavesdropper, the conversation maintains its cloak of privilege. A plain reading of Seigler makes obvious the inaccuracy of the appellant's statement. In Seigler, this Court stated that "[t]he rule is that third parties may testify to communications had between husband and wife, overheard by such third persons." 54 Okl.Cr. at 143, 15 P.2d at 1048. We hold that irrespective of whether communications between husband and wife are intended to be confidential, third persons may testify as to conversations overheard, whether accidentally or by design. See Hilderbrandt v. State, 22 Okl.Cr. 58, 209 P. 785 (1922). Accordingly, we find that Ms. Lewis' testimony was properly admitted into evidence.

VI

¶36 Appellant contends that the trial court erred in denying an application for change of venue. Resolution of this issue depends upon whether appellant established that the inhabitants of the county had such fixed opinions as to his guilt that he could not receive a fair trial by an impartial jury. [665 P.2d 1215] Mooney v. State, 273 P.2d 768 (Okl.Cr. 1954). See also Thomsen v. State, 582 P.2d 829 (Okl.Cr. 1978).

¶37 According to the transcript of the hearing on the application, appellant introduced nine affidavits, some newspaper clippings and the testimony of three Oklahoma City area television newspersons in support of change of venue. The affiants, all residents of Oklahoma and Canadian counties, stated that they had formed opinions as to appellant's guilt or innocence and expressed the belief that he could not obtain a fair and impartial jury in light of the atmosphere prevailing in central Oklahoma. In this regard, appellant's trial counsel advised the court that only nine of one hundred fifty-one persons interviewed agreed to sign affidavits, the remainder expressing one of three viewpoints: they did not want to become involved; they believed that appellant should be tried and "hung" in Oklahoma County; or, they had no opinion in the matter.

¶38 The newspersons testified that the case had received extensive coverage, but that references to appellant were always prefaced by such qualifying language as "accused", "alleged" and "suspected." The newspaper clippings concededly did not represent a "complete and concise" coverage of the reports published in the county.

¶39 The transcript further reveals that the State offered fifty affidavits in opposition to change of venue. The affiants, all residents of Oklahoma County, stated that the media coverage of the case had been fair, that an unbiased jury could be selected in Oklahoma County, and that they had formed no opinions as to appellant's guilt or innocence.

¶40 Except for five of the defense affidavits, the newspaper clippings and the prosecution and defense affidavits are not in the record on appeal. On the record before us, we find no abuse of discretion in the denial of the application.

¶41 Appellant also contends that the trial court erred in denying a motion for individual voir dire of the prospective jurors. However, since the transcript of voir dire is not in the record on appeal, we must assume that the judge's rulings were correct. Henderson v. State, 385 P.2d 930 (Okl.Cr. 1963). For all that appears, the motion was never called to the attention of the court, see generally Smith v. State, 644 P.2d 106 (Okl.Cr. 1982); or the circumstances brought out at voir dire warranted denial of the motion in the trial court's discretion, Irvin v. State, 617 P.2d 588 (Okl.Cr. 1980); or, individual voir dire was in fact conducted. This argument is not properly before this Court.

VII

¶42 It is further advanced that the State failed to produce all exculpatory evidence. Specifically Stafford claims that the State deliberately withheld a written statement given by Verna Stafford on March 8, 1979. In the initial pages of the 166 page statement, Verna denied any involvement in the Sirloin Stockade murders. However, as this interview wore on, Verna admitted her involvement in the Stockade murders and implicated Roger. The appellant argues that the rule set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), mandates a reversal of his conviction. We disagree.

¶43 In Brady, the Supreme Court ruled that the prosecution's suppression of exculpatory evidence where there is a specific request, "violates due process where the evidence is material either to guilt or punishment. . . ." 373 U.S. at 87, 83 S.Ct. at 1196-97. See also United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) and Hall v. State, 650 P.2d 893 (Okl.Cr. 1982).

¶44 In this case, the record is unclear as to whether defense counsel received a copy of Verna Stafford's statement taken on March 8, 1979. Irrespective of whether the defense was provided a copy of the statement, we find that the appellant's due process rights were not violated. During the direct examination of Verna Stafford the prosecution brought out the fact that in her first statement to the police she denied involvement in the Stockade murders. The [665 P.2d 1216] prosecution questioned Verna Stafford as follows:

Q In regard to that first questioning, Mrs. Stafford, what did you tell the officers?

A I told them that I did not have the gun, and that I didn't know — and I didn't help to plan the robbery, and I just came down here.

Q Excuse me, Mrs. Stafford, I'm talking about the very first time that you were questioned now. What did you tell them about whether you had been to Oklahoma City or not?

A The very first statement, I told them that I hadn't ever been here.

Q What did you tell them about Roger and Harold or their being involved in it?

A I told them that none of us had come down here.

Q All right. Did you subsequently change that during the time of that statement?

A Yes, sir.

MR. BREWER: If the Court please, we're going to renew our objections as to hearsay at this point.

¶45 Therefore, we find that even if the prosecution did fail to provide the defense with the March 8th statement, it did not affect the outcome of the trial since the prosecution presented this evidence to the jury for their consideration.

VIII

¶46 Stafford advances that because he was not taken before a magistrate until two days after his arrest, his statements given in the interim should have been suppressed. The record reveals that while Stafford was in custody he was informed that he was being held on a murder complaint; he was read his Miranda rights; he was questioned in regard to the Stockade slayings; and, he gave a statement prior to being taken before a magistrate for the initial arraignment.

¶47 In Stidham v. State, 507 P.2d 1312 (Okl.Cr. 1973), this Court, in addressing an identical argument, stated that the burden is on the accused to establish prejudice by reason of the delay in taking him before a magistrate, in addition to the delay itself. In the case presently before this Court, we find that the appellant has wholly failed to show any prejudice resulting from the two day delay. We find the appellant's argument to be without foundation.

IX

¶48 The appellant further argues that the testimony of Verna Stafford regarding statements made by Harold Stafford and the manager of the Sirloin Stockade were inadmissible hearsay. He contends that the introduction of these hearsay statements violated his Sixth Amendment right to confront witnesses because he was denied an opportunity to cross examine the persons who allegedly made the statements.

¶49 At trial, Verna Stafford testified that "Harold said he would go ahead and get the guns ready . . . ." We find that under 12 O.S. 1981 § 2801 [12-2801](4)(b)(5) this testimony does not constitute hearsay. Section 2801(4)(b)(5) provides that a statement is not hearsay if made "by a coconspirator of a party during the course and in furtherance of the conspiracy." At bar, there was ample evidence that Roger Stafford and Harold Stafford had entered into a conspiracy to rob the Sirloin Stockade. Under Section 2801(4)(b)(5) Harold Stafford's statements made in the course of the conspiracy and in furtherance of the conspiracy were admissible against his coconspirator, Roger Stafford.

¶50 The appellant also objects on hearsay grounds that it was improper for Verna Stafford to testify about statements allegedly made by the deceased manager of the Sirloin Stockade. When asked what the manager told Roger Stafford, Verna stated, "he said that he couldn't understand why people had to take other people's money, why they couldn't work for themselves." The resolution as to whether this statement constitutes hearsay requires an understanding of the statutory definition of hearsay.

[665 P.2d 1217]

¶51 Title 12 O.S. 1981 § 2801 [12-2801](3) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. . ." The crucial determination in this case, is whether the statement objected to was offered to prove the truth of the matter asserted. Here, we find that the out-of-court statement was not offered for its truth. This statement is relevant solely because it was made, it does not matter whether the assertion is true. The reliability of the statement is not dependent upon the veracity of a declarant unavailable for cross-examination. Therefore, we find that the statement in question does not fall within the definition of hearsay. Goodwin v. State, 625 P.2d 1262, 1265 (Okl.Cr. 1981).

X

¶52 We find that the death sentences were not imposed under the influence of passion, prejudice or any other arbitrary factor. 21 O.S. 1981 § 701.13 [21-701.13](C)(1). Although the victims were employed and presumably resided in the Oklahoma County area and high public feeling could be expected, the transcript does not reflect any bias or prejudice. Hays v. State, 617 P.2d 223 (Okl.Cr. 1980). Moreover, the evidence against appellant was overwhelming, and in itself provided ample support for the verdict. Ake v. State, 663 P.2d 1, 54 O.B.A.J. 996 (Okl.Cr. 1983).

¶53 We further find that the evidence supports the jury's findings of four statutory aggravating circumstances. 21 O.S. 1981 § 701.13 [21-701.13](C)(2). First, the evidence was sufficient to show that appellant knowingly created a great risk of death to more than one person. 21 O.S. 1981 § 701.12 [21-701.12](2). Appellant crowded the six victims into a meat freezer the size of a closet and, with the aid of Harold Stafford, opened fire at close range. One of the victims died of a bullet wound to the neck, the remainder suffering fatal head wounds.

¶54 Second, the evidence was sufficient to support a finding that the murders were especially heinous, atrocious, or cruel. 21 O.S. 1981 § 701.12 [21-701.12](4). "Heinous" is defined as "extremely wicked or shockingly evil"; "atrocious" means "outrageously wicked and vile"; and "cruel" imports a design "to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others." Boutwell v. State, 659 P.2d 322, 329 (Okl.Cr. 1983), quoting with approval State v. Dixon, 283 So.2d 1 (Fla. 1973).

¶55 The victims, ranging in age from 16 to 56, anxiously inquired concerning their safety several times during the course of the robbery. They were repeatedly assured that they would not be harmed, even as they were forced into the freezer and ordered to sit on the floor. The horrible truth must have become apparent the instant appellant pointed his gun and shot, in turn, Isaac Freeman and the manager, Louis Zacarias. According to Verna Stafford, there was "a lot of screaming." Several of the victims were shot from three to five times. Appellant later said that it was "like shooting a balloon in a bag of water", and "like shooting a fence post."

¶56 The evidence amply supports this aggravating circumstance. Odum v. State, 651 P.2d 703 (Okl.Cr. 1982), is distinguishable due to the absence in that case of "evidence of any physical or mental suffering whatsoever." 651 P.2d at 707.

¶57 Third, the evidence supports the finding that the murders were committed for the purpose of avoiding or preventing lawful arrest or prosecution. 21 O.S. 1981 § 701.12 [21-701.12](5). As the restaurant manager entered the freezer, he said that the robbers would do no more than walk down the road before being caught, and that he, the manager, would see to it that their "knees would be run into the ground" so as to spare himself any similar ordeal in the future. Thereafter, contrary to plan, appellant pressured Harold Stafford into helping shoot the witnesses.

¶58 Finally, the evidence clearly suggests that there exists a probability that appellant would commit criminal acts of violence that would constitute a continuing [665 P.2d 1218] threat to society. 21 O.S. 1981 § 701.12 [21-701.12](7). There was testimony that, prior to his arrest, appellant threatened the life of a witness, Rose Anna Marie Collins, to ensure her silence. On the other hand, we observe that there was no evidence at trial of prior criminal acts of violence by appellant. However, "the circumstances of the offense may furnish extremely probative evidence of the probability of future acts of violence." Russell v. State, 598 S.W.2d 238, 254 (Tex.Cr.App. 1980), cert. den. 449 U.S. 1003, 101 S.Ct. 544, 66 L.Ed.2d 300, construing Texas Code Criminal Procedure, Article 37.071, which is similar to § 701.12(7).

¶59 In this case, appellant and his confederates carefully planned the armed robbery. The savage, execution-style killing of the restaurant employees, coupled with appellant's shockingly calloused attitude and his later threat against witness, Collins, supports the jury finding.

¶60 Finally, we find that the death sentences were not excessive or disproportionate compared with the penalty imposed in similar cases and considering both the crime and the defendant. 21 O.S. 1981 § 701.13 [21-701.13](C)(3). We have compared this case with several prior decisions, including those in which the death sentence was affirmed,³ and those reversed or modified to life imprisonment.⁴ We have especially considered those cases involving murder in the course of robbery. See Johnson v. State, supra, Note 5; Ake v. State, supra, Note 4; Hatch v. State, supra, Note 5; Smith v. State, supra, Note 4; Boutwell v. State, supra, Note 5; Irvin v. State, supra, Note 5; and Hays v. State, supra, Note 4.

¶61 Finding no error warranting reversal or modification, the judgments and sentences are AFFIRMED.

BUSSEY, P.J., and BRETT, J., concur.

Footnotes:

¹ The prosecutor cross-examined appellant at Tr. 986:

Q. All right. Now, you said something yesterday that I may have misunderstood.

Did you tell us that you had never talked to Mr. Brewer about your testimony in this case?

A. That's right.

Q. Never at any time in preparation for this rather serious case, did you ever talk to him about what your testimony would be?

A. No, sir.

Q. Did you ever talk to anybody about it? Any of the defense lawyers?

A. No, sir.

Q. So they didn't know until you went on the stand right now or yesterday what you were going to say about where you were and what you had done?

A. Right.

Defense counsel elicited the following from appellant on direct and re-direct examination at Tr. 939-940 and 1000:

Q. At any point in time through this trial, have I told you what to say?

A. No.

Q. At any time during this trial, have we rehearsed what you're going to say?

A. Absolutely not.

Q. As a matter of fact, at any period of time, did we dwell upon your testimony at great lengths?

A. No, not at all.

Q. You're testifying solely from your memory, best you know?

A. The best as I can.

*****

BY MR. BREWER:

Q. All right. Now, Roger, when it was brought up that had you discussed your testimony as you testified before with defense counsel, what are you saying?

That you and I've never even talked about this case? Or I did not plan it for you?

A. I did not plan for you.

Q. We have discussed it though, have we not?

A. Oh, yeah, to a degree, yeah.

³ Ake v. State, 663 P.2d 1, 54 O.B.A.J. 996 (Okl.Cr. 1983); Smith v. State, 659 P.2d 330 (Okl.Cr. 1983); Parks v. State, 651 P.2d 686 (Okl.Cr. 1982); Jones v. State, 648 P.2d 1251 (Okl.Cr. 1982); Hays v. State, 617 P.2d 223 (Okl.Cr. 1980); Chaney v. State, 612 P.2d 269 (Okl.Cr. 1980); and Eddings v. State, 616 P.2d 1159 (Okl.Cr. 1980), remanded for resentencing, Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

⁴ Hatch v. State, 662 P.2d 1377, 54 O.B.A.J. 1003 (Okl.Cr. 1983); Jones v. State, 660 P.2d 634, 54 O.B.A.J. 661 (Okl.Cr. 1983); Johnson v. State, 662 P.2d 687, 53 O.B.A.J. 730, rehearing granted and opinion amended, 54 O.B.A.J. 398 (Okl.Cr. 1983); Driskell v. State, 659 P.2d 343 (Okl.Cr. 1983); Boutwell v. State, 659 P.2d 322 (Okl.Cr. 1983); Munn v. State, 658 P.2d 482, 54 O.B.A.J. 109 (Okl.Cr. 1983); Odum v. State, 651 P.2d 703 (Okl.Cr. 1982); Hall v. State, 650 P.2d 893 (Okl.Cr. 1982); Brewer v. State, 650 P.2d 54 (Okl.Cr. 1982); Burrows v. State, 640 P.2d 533 (Okl.Cr. 1982); Franks v. State, 636 P.2d 361 (Okl.Cr. 1981); Irvin v. State, 617 P.2d 588 (Okl.Cr. 1980).

STAFFORD v. STATE
1990 OK CR 74
800 P.2d 738
Case Number: 0-89-897
Decided: 10/24/1990
Oklahoma Court of Criminal Appeals

Appeal from the District Court, Oklahoma County, Richard W. Freeman, J.

ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF

[800 P.2d 739]

¶1 On March 14, 1980, petitioner pled guilty to two counts of Second Degree Murder (21 O.S.Supp. 1976 § 701.8 [21-701.8]) in the District Court of Oklahoma County, Case Nos. CRF-80-1153 and CRF-80-1154, before the Honorable Charles Owens, District Judge. The trial court sentenced petitioner to an indeterminate term of not less than ten (10) years nor more than life imprisonment on each count. Said sentences were ordered to be served concurrently.

¶2 Petitioner's convictions arose from two separate incidents which occurred on June 22, 1978, in McClain County and on July 16, 1978, in Oklahoma County. Petitioner waived venue for the McClain County offense and was convicted of both charges in Oklahoma County. In the first criminal episode, petitioner, her then husband, Roger Dale Stafford, and his brother, Harold Stafford, participated in the robbery and murder of three (3) members of the Lorenz family on Interstate 35 near Purcell. The second episode, which again involved the same three assailants, resulted in the robbery and murder of six (6) employees of the Sirloin Stockade in South Oklahoma City. Petitioner's charges were based upon the murder of Linda Lorenz and the murder of Terry Horst, a Sirloin Stockade employee. The facts of these brutal slayings are set forth in greater detail in Stafford v. State, 669 P.2d 285 (Okl.Cr. 1983) (Direct appeal of Roger Dale Stafford's convictions and sentences of death for his participation in the Lorenz murders); and Stafford v. State, 665 P.2d 1205 (Okl.Cr. 1983) (Direct appeal of Roger Dale Stafford's convictions and sentences of death for his participation in the Sirloin Stockade murders).

¶3 On May 9, 1989, petitioner filed an application for post-conviction relief in Oklahoma County District Court seeking modification of her sentences to ten (10) years. Therein, petitioner correctly asserted that her indeterminate sentences were improper because the statute mandating such a sentence, 21 O.S.Supp. 1973 § 701.4 [21-701.4], was repealed in 1976. The Honorable Richard W. Freeman, District Judge, sustained petitioner's application, insofar as it related to the vacation of her invalid original sentences, and ordered a hearing for the purpose of resentencing pursuant to 22 O.S. 1981 § 1085 [22-1085]. Following the presentation of evidence and arguments by both petitioner and the State, the court sentenced petitioner to two (2) terms of life imprisonment and ordered that the sentences be served consecutively. From said sentences, petitioner has perfected this appeal.

¶4 In her first assignment of error, petitioner asserts that the actions of the district court in resentencing her constituted a violation of due process of law and subjected her to double jeopardy. Petitioner does not contend that the district court lacked authority to resentence her,² but only that the sentences imposed were improper. We disagree.

¶5 As petitioner readily admits, she was originally incarcerated under illegal, and thus void, sentences. Therefore, when the district court granted petitioner's application for post-conviction relief and vacated her original sentences, she was placed in the same position as if she had never been sentenced. Indeed, following the district court's determination that the original sentences were invalid, petitioner was given the opportunity to withdraw her previous pleas and specifically declined to do so. Thereupon, the court conducted a hearing and resentenced petitioner pursuant to 22 O.S. 1981 § 1085 [22-1085]. The two (2) terms of imprisonment meted out were within the range of punishment authorized by [800 P.2d 740] 21 O.S.Supp. 1976 § 701.9 [21-701.9], the section under which petitioner should have originally been sentenced.

¶6 In support of both her due process and double jeopardy claims, petitioner advances several arguments which are all premised upon the fact that the terms of new sentences exceed the terms of the original invalid sentences. Petitioner initially argues that she had a liberty interest, by virtue of her original plea bargaining agreement, in the expectation that she could be released from incarceration after serving a term of ten (10) years, that she justifiably relied upon this interest by participating in "any and all rehabilitative activities available" in anticipation of earning early release, and that the imposition of the new sentences deprived her of the opportunity to obtain parole after service of a ten (10) year sentence. However, as petitioner was given the opportunity to withdraw her previous pleas, we deem this argument meritless.

¶7 We must also reject petitioner's assertion that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), mandates modification of the new sentences. In Pearce, the Supreme Court addressed the issue of vindictive sentencing of defendants who successfully attack their first conviction. While the Court held that there is no bar to a more severe sentence upon reconviction, it condemned those instances where trial courts impose "a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside." Id., 395 U.S. at 723-724, 89 S.Ct. at 2080.

¶8 Unlike the defendants in Pearce, petitioner herein did not attempt to have her original conviction set aside, nor was she reconvicted of any charges. Rather, petitioner's original sentences were vacated as void, she was given an opportunity to withdraw her original pleas, she was afforded a hearing, and then she was sentenced to terms of imprisonment within the statutory limits. Moreover, this Court finds that the evidence presented overwhelmingly supported the sentences imposed. Accordingly, we hold that petitioner's resentencing proceeding did not violate her constitutional guarantees to due process.

¶9 With respect to petitioner's claim of double jeopardy, we do not agree that the resentencing procedure resulted in multiple punishments for the same offense. As previously stated, when petitioner's original sentences were vacated as void, she stood in the same position as if she had never been sentenced. Therefore, upon affirmation of her original pleas, the trial court was authorized to sentence petitioner to whatever punishment was statutorily permissible, subject only to the limitation that she receive credit for time served. Cf. Bullington v. Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270 (1981).

¶10 In her second assignment of error, petitioner asserts that the sentences imposed by the district court were based upon certain inadmissible evidence and public opinion. On this basis, she asks this Court to modify her sentences. We first note that petitioner failed to object to the admission of any of the aforementioned evidence when it was offered at the sentencing proceeding. Therefore, all but fundamental error has been waived. Lamb v. State, 767 P.2d 887, 891 (Okl.Cr. 1988); Hale v. State, 750 P.2d 130, 135 (Okl.Cr. 1988), cert. denied 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164. Furthermore, this Court will not modify a sentence on appeal unless it is so excessive that it shocks the conscience of this Court. Dunagan v. State, 755 P.2d 102, 104 (Okl.Cr. 1988). As previously stated, the sentences imposed were within the statutory limits and the evidence presented supported such sentences. Having determined that the sentences imposed do not shock this Court's conscience, and finding no fundamental error in the admission of the now contested evidence, we dismiss this assignment as meritless.

¶11 As her final assignment of error, petitioner alleges that she will be denied her constitutional right to equal protection of the law if this Court does not modify her original sentences to ten (10) years imprisonment. In support thereof, petitioner has [800 P.2d 741] cited several unpublished orders of this Court in which we modified the sentences of similarly situated prisoners to the minimum term of their indeterminate sentences.

¶12 Initially, we reiterate that unpublished opinions are not to be cited as authority before this Court. State ex rel. Hicks v. Freeman, 795 P.2d 110, 112 (Okl.Cr. 1990); 22 O.S.Supp. 1989, Ch. 18, App., Rules of the Court of Criminal Appeals, Rule 3.5(C ). Furthermore, our decision in White, supra, clearly states that the procedure this Court will follow in correcting an invalid sentence is to remand the cause to the district court with instructions to vacate the judgment and sentence and determine disposition in compliance with 22 O.S. 1981 § 1085 [22-1085]. Assuming arguendo that the unpublished orders cited by petitioner constituted precedential authority, we would find that the procedure enunciated in the White opinion, which post-dates the cited orders, represents the current position of this Court. Because the district court in the present case followed the mandates of White, we deem petitioner's equal protection argument meritless.

¶13 On the basis of the foregoing, this Court finds that petitioner's Application for Post-Conviction Relief should be, and the same hereby is, DENIED.

¶14 IT IS SO ORDERED.

/s/ Ed Parks ED PARKS, Presiding Judge

/s/ James F. Lane JAMES F. LANE, Vice Presiding Judge

/s/ Tom Brett TOM BRETT, Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/ Charles A. Johnson CHARLES A. JOHNSON, Judge

Footnotes:

¹ Indeterminate sentences are permitted under 57 O.S.Supp. 1987 § 353 [57-353]. This section, which is a verbatim reenactment of 57 O.S. 1971 § 353 [57-353], was in force at the time petitioner committed her crimes. However, this Court has held that a trial court may not set an indeterminate sentence where a life sentence is the maximum imposed. White v. State, 774 P.2d 1072 (Okl.Cr. 1989).

² This issue was settled in White, supra note 1.

1991 OK CR 77
815 P.2d 685

ROGER DALE STAFFORD, SR., PETITIONER,
v.
STATE OF OKLAHOMA, RESPONDENT.

Case No. PC-89-87.
July 15, 1991

An appeal from the District Court of Oklahoma County; Charles Owens, District Judge.

Roger Dale Stafford, Sr., petitioner, was convicted by a jury of six counts of Murder in the First Degree in the District Court of Oklahoma County, Case No. CRF-79-926. The jury found that four aggravating circumstances existed and the petitioner was sentenced to death on all six counts. Subsequently, petitioner filed an application for post-conviction relief which was denied and is the subject of this appeal. AFFIRMED.

Robert A. Ravitz, Public Defender of Oklahoma County, Oklahoma City, for petitioner.

Robert H. Henry, State Atty. Gen. and Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for respondent.

OPINION

BRETT, Judge:

¶1 Roger Dale Stafford, Sr., Petitioner, is before this Court on an Application for Post Conviction Relief. Petitioner was convicted by a jury of six counts of Murder in the First Degree in the District Court of Oklahoma County, Case No. CRF-79-926. The jury found that four aggravating circumstances existed ¹ and the petitioner was subsequently sentenced to death on all six counts. This Court affirmed the death sentences in Stafford v. State,

¶2 In his second Application for Post Conviction Relief, the petitioner claimed that the jury instruction concerning the "especially heinous, atrocious or cruel" aggravating circumstance was unconstitutionally vague. In response, the district court found in its conclusions of law, that resolution of this issue was barred by the doctrine of res judicata because petitioner could have raised this issue on direct appeal or in his first application for Post Conviction Relief. We note, however, that the United States Supreme Court decision of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), which deals directly with this issue, constitutes an intervening change in the law which did not exist at the time of petitioner's previous appeals. Although, as the State argues, the Cartwright decision was based upon principles of law previously announced in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), this specific issue was not definitively decided until addressed by the Supreme Court in Cartwright. We find this subsequent change in the law to be a sufficient reason why this error was not previously asserted. Thus, we will address the merits of petitioner's contention. See 22 O.S. 1981 § 1086 [22-1086]; Jones v. State,

¶3 The record reveals that the jury in the present case was given essentially the same instruction regarding the aggravating circumstance of "especially heinous, atrocious or cruel" that was found to be unconstitutionally vague in Cartwright. The instruction provided:

You are further instructed that the term "heinous", as that term is used in these instructions means extremely wicked or shockingly evil, and that "atrocious" means outrageously wicked and vile; and "cruel" means designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the suffering of others; pitiless. (Second Stage Instruction No. 6)

Contrary to the assertions of the State, the jury was not given instructions with the narrowing language which has been found to give more guidance than the language condemned in Cartwright. ² Thus, we agree with the petitioner that the aggravating circumstance of "especially heinous, atrocious or cruel" must fail in this case because the jury based its finding of such circumstance upon an unconstitutionally vague instruction.

¶4 The petitioner claims that upon finding that the aggravating circumstance of "especially heinous, atrocious or cruel" must fail, this Court must modify the death sentence to life in prison. In at least two other cases where an aggravating circumstance was found to have failed, Castro v. State, 749 P.2d 1146 (Okl.Cr. 1987) and Stouffer v. State, 742 P.2d 562 (Okl.Cr. 1987), this Court upheld the death penalty after reweighing the remaining aggravating circumstances against the mitigating circumstances. However, the petitioner claims that there are distinctions between the present case and Castro and Stouffer which make reweighing inappropriate in the present case.

¶5 It is argued by the petitioner that the cases relied on by this Court to support the reweighing policy utilized in Castro and Stouffer, Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) and Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1984), cannot apply to situations where an aggravating circumstance fails because it violates the Eighth Amendment to the United States Constitution, as it did in the present case. To further support his argument that reweighing weighing is not now appropriate, the petitioner also noted several other distinctions between these cases and the present case. However, in light of the United States Supreme Court's recent decision in Clemons v. Mississippi,

¶6 In Clemons, the Supreme Court held that it is constitutionally permissible for an appellate court to reweigh the remaining aggravating circumstances against any mitigating evidence after one or more aggravating circumstances has been invalidated. This decision was made in a context very similar to the present situation. The aggravating circumstance of "especially heinous, atrocious or cruel" failed in Clemons, as it did in the case at bar, because it was essentially identical to the one invalidated in Maynard v. Cartwright. Thus, this aggravating circumstance was invalidated on constitutional grounds. This fact did not dissuade the Supreme Court from finding that the appellate reweighing process was constitutional. This was found despite the fact that there was mitigating evidence presented in Clemons and that a great deal of the State's argument for the death penalty in that case was based on its contention that the murder was "especially heinous". Thus, we find this argument to be without merit.

¶7 The petitioner also complains that the reweighing process would deny him his right to sentencing by a jury. The Supreme Court in Clemons noted that under Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), it was recognized that "when a state law created for a defendant a liberty interest in having a jury make particular findings, speculative appellate findings will not suffice to protect that entitlement for due process purposes." Clemons, 494 U.S. at ___, 110 S.Ct. at 1447. However, it was also noted that at the time Hicks was decided, there was no authority under Oklahoma law for appellate sentencing. Because in Clemons, Mississippi law gave the state court authority to employ appellate sentencing procedures, due process considerations were not violated by the reweighing process. Id. Such is the current statutory scheme in Oklahoma. We interpret 22 O.S. 1981 § 1066 [22-1066] and 21 O.S.Supp. 1989 § 701.13 [21-701.13] to allow this Court to reweigh the remaining aggravating circumstances against the mitigating circumstances as part of the authorized sentence review. See Stouffer, 742 P.2d at 564. Thus, although Oklahoma's capital sentencing statutory scheme does provide for jury sentencing, it also provides for sentence review by this Court and as such, there is no violation of the principles enunciated in Hicks.

¶8 We also disagree with petitioner's contention that any application of a reweighing/harmless error approach would be unconstitutional as a violation of the prohibition against ex post facto laws. This Court has found that "procedural changes in a statutory capital sentencing scheme which simply alter `the methods employed in determining whether the death penalty was to be imposed' is not ex post facto `[e]ven though it may work to the disadvantage of a defendant.'" Castro v. State, 749 P.2d at 1150 (citing Dobbert v. Florida, 432 U.S. 282, 293-94, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977)). We further found that independent reweighing of aggravating and mitigating circumstances simply alters the methods of procedure in determining the validity of a death sentence on direct appeal; it does not deprive the petitioner of a defense that was previously available, change the legal definition of the offense, change the range of punishment, affect the criminal quality of the act charged, or change the questions which may be considered by the jury in establishing guilt or innocence. Id., 749 P.2d at 1150-51. See also Coleman v. Saffle, 869 F.2d 1377 (10th Cir. 1989). Therefore, we find that this Court's exercise of its statutory review powers does not constitute an ex post facto violation.

¶9 Petitioner also claims that if this Court has the authority to reweigh the remaining aggravating circumstances against the mitigating circumstances, such authority is limited to review on direct appeal because the Post Conviction Procedure Act, 22 O.S.Supp. 1987 § 1089 [22-1089], does not specifically authorize the appellate reweighing process. However, we note that section 1089 also does not specifically authorize this Court to modify death sentences to life imprisonment as the petitioner has asked this Court to do. In fact, the Post Conviction Procedure Act does not set forth any specific powers of review be available to this Court. However, we are not convinced that this omission prevents this Court from utilizing the same powers of review in post conviction applications that are used in direct appeals.

¶10 The Oklahoma Supreme Court has held that legislative enactments dealing with the same subject matter must be construed together as a harmonious whole so as to give effect to each. Inexco Oil Co. v. Corporation Commission, 628 P.2d 362, 365 (Okl. 1981). Thus, the Post Conviction Procedure Act and the statutes governing appeals in capital cases must be read together. It would defy logic to find that the legislature afforded this Court the power to hear an application for post conviction relief without giving us the authority to grant the proper relief. Therefore, we find that it was the intent of the legislature to allow this Court the same powers of review in post conviction relief cases that we have in direct appeals.

¶11 It is axiomatic that in reweighing the remaining aggravating circumstances against the mitigating circumstances, an appellate court is required to make an individualized determination from an actual reweighing. Clemons, 494 U.S. at ___, 110 S.Ct. at 1450. We note that in the present case, the petitioner, along with two accomplices, robbed a Sirloin Stockade Restaurant and then herded the six employees who were present into a walk-in freezer and shot them. All six employees died as a result of the shooting. Aside from the aggravating circumstance that we have found must fail, that of "especially heinous, atrocious or cruel", the jury in petitioner's trial properly found beyond a reasonable doubt that three other aggravating circumstances existed: that the petitioner knowingly created a great risk of death to more than one person, that the murders were committed for the purpose of avoiding or preventing a lawful arrest and prosecution and that there was a probability that the petitioner would commit criminal acts of violence in the future that would constitute a continuing threat to society.

¶12 We also recognize that mitigating evidence was presented at trial which the jury was bound to consider. This consisted largely of the fact that petitioner was the father of three children, that he was employed during his time in Oklahoma, that he had supplied toys, ice cream, cake and candy to Danny Kerr's son on his birthday, that he had never been arrested for a violent crime, and that he had two accomplices to the six Sirloin Stockade murders.

¶13 Upon careful consideration of the evidence supporting the remaining aggravating circumstances, and the evidence which may be considered to be mitigating, we find that the aggravating circumstances far outweigh the mitigating evidence. Thus, we conclude that even in the absence of the aggravating circumstance of "especially heinous, atrocious or cruel", the sentence of death is factually substantiated and appropriate; the jury's consideration of the unconstitutional aggravating circumstance was at most harmless error.

¶14 In light of the foregoing, we AFFIRM the district court's denial of the petitioner's application for post-conviction relief.

Footnotes:

¹ The jury found the following aggravating circumstances to exist: 1) the defendant knowingly created a great risk of death to more than one person; 2) the murder was especially heinous, atrocious, or cruel; 3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and 4) there existed a probability that the defendant would commit criminal acts of violence in the future that would constitute a continuing threat to society.

² This Court, in Stouffer v. State,

SEX: M RACE: W TYPE: N MOTIVE: CE

MO: Murdered a family of three in june 1978; shot six victims in a restaurant holdup three weeks later.

DISPOSITION: Executed july 1, 1995.

Roger Dale Stafford