2002 OKCR 12 - Hawkins v. State

STRUBHAR, Judge:

¶1Concur in Results.

¶2[1 I concur in results only for the reason of stare decisis. I continue to believe that a trial court should provide a meaningful answer to questions from the jury when they ask about the meaning of life without parole.

CHAPEL, J.,

¶3Concurring in nPart and Dissenting in Part.

¶4T1 I concur in affirming Hawking's murder' conviction. However, I dissent to affirming (a) his conviction for conspiracy to commit murder and (b) the sentence of life without parole. First, I continue to believe that convictions for murder and conspiracy to commit murder violate the prohibition against double jeopardy.1 I would reverse Hawking's conspiracy conviction. Further, I have consistently stated that the jury should be informed of the meaning of life without parole.2 In Malicoat, I said, "Our error in failing to require instruction as to the meaning of life without parole is of constitutional magnitude and has, in my judgment, resulted in death sentences for many who would otherwise -have received the life without parole sentence." 3 Although this is not a capital case, the principle applies. When a jury asks a question about the term: of incarceration meant by life with parole, as these jurors did, it means the jurors are confused. Juror confusion may well result in a longer sentence. Where the trial court can clear up *150juror confusion, it should.4 I would remand for resentencing with appropriate instructions.5

¶5. Moss v. State, 1994 OK CR 80, 888 P.2d 509, 522 (Chapel, J., concurring in part and dissenting in part).

¶6. See, e.g., Powell v. State, 2000 OK CR 5, 995 P.2d 510, 543, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258 (2000) (Chapel, J., dissenting); Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, 605 n. 100, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999); Mollett v. State, 1997 OK CR 28, 939 P.2d 1, 15, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998) (Chapel, J., concurring in result); Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 321, cert. denied, 522 U.S. 832, 118 S.Ct. 99, 139 L.Ed.2d 54 (1997) (Chapel, J., specially concurring); Smallwood v. State, 1995 OK CR 60, 907 P.2d 217, 239, cert. denied, 519 U.S. 980, 117 S.Ct 431, 136 L.Ed.2d 330 (1996) (Chapel, J., specially concurring); McGregor v. State, 1994 OK CR 71, 885 P.2d 1366, 1383 n. 59, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995) (concurring by reason of stare decisis).

¶7. Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 400 n. 43, cert. denied, 531 U.S. 888, 121 S.Ct. 208, 148 L.Ed.2d 146 (2000).

¶8. "A trial court has a duty of special care to evaluate jurors' understanding of the law and clear away any explicit difficulties." Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 312, cert. denied, - U.S. --, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001); Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000); Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946).

¶9. As the majority notes, six years ago we suggested the standard instructions on punishment could be clarified by defining life both with and without parole. Johnson, 928 P.2d at 320.

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