¶1concurs in part/dissents in part.
¶2¶1 I concur in the Court’s Opinion on Rehearing as it relates to the affirmance of the conviction and the sentences imposed by the trial court. I respectfully dissent to the Opinion on Rehearing and the changes that have been made since the original summary opinion.
¶3¶ 2 Some years ago, Judge James Lane, a former member of this Court, proposed that all trials be two-stage trials. His reasoning had to do with the fact that aggravating evidence could come in during a one-stage trial. A defendant could be found guilty based upon the aggravation and not for the charged crime. He pointed out that in a bench trial after the judgment of the court, the defendant has the right of allocution and can present mitigating evidence to the court that the court can consider in the sentencing. This now seems reasonable. In the original summary opinion, as Judge Chapel points out in his dissent, Oklahoma law does not allow a trial judge to modify the jury’s sentence. He notes this modification can only come in a bench trial. 22 O.S.1991, § 973.
¶4¶ 3 After a jury sentence, justice demands that a defendant have a right to present mitigating evidence to the court. The State should also have the right to present any aggravating evidence. The court could get a pre-sentence report, and. the judge has the right to modify the sentence or even increase the sentence. It is my hope that the legislature would enact a statute that would allow this procedure. If this were done, you would not need the two-stage trial as set forth in our original summary opinion. You would truly have allocution.
¶5¶ 4 I am a great believer in the judicial system and the wisdom of judges who have been on the bench and heard numerous cases. With very few exceptions, their judgments are wise and the sentences given may be fairer than those of a jury who may be mad at the defendant or his or her attorney or something that has occurred in the case that makes the jury’s sentence excessive. Hopefully the Legislature will cure this ill. This state should have a system where the jury finds guilt; the judges give the sentence after allocution.