Callins v. State

¶1(concurs in part, and dissents in part):

¶2I concur that the judgment in this case should be affirmed, but I cannot agree that the 1500 year sentence should be left undisturbed. I believe the sentence is patently excessive.

¶3While in Fields & Phillips v. State, supra, I merely recited that I would modify the sentence to life imprisonment, it was assumed that I approved the 1,000 year sentence in that case. Consequently, I am compelled in this case to specifically state that I do not see the relevancy of affirming a sentence of either 1,000 years, or one of 1,500 years. I feel certain that this Court would modify a jury sentence which imposed three life sentences on a convicted person for one offense, and would probably recite that such a sentence exceeds the limits of punishment set by the legislature. At the same time, it is generally recognized that not many people live more than a hundred years; but nonetheless in the instant case this Court is approving a sentence of more than fifteen life sentences for the single offense. The decision in Fields & Phillips, supra, states, “However, the practicalities of life compel us to observe that a sentence of 1,000 years is, for all intent and purposes, a life sentence.” (Emphasis added.) Such being the practicality of life, this Court should act within its wisdom and cause the sentence to reflect “life imprisonment.” Whatever the message was that the jury was attempting to convey, it served its purpose when the press released the story. If that message was that there should be authority to sentence one to life imprisonment without possibility of parole, then it should be made directly to the State Legislature, and not to this Court. It is within the authority of the legislature to establish limits of punishment, not this Court.

¶4Approval of this sentence seems to be predicated upon the provisions of 21 O.S. 1970, § 62, as follows:

“Whenever any person is declared punishable for a crime by imprisonment in the penitentiary for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than such as are prescribed.” See: Fields & Phillips v. State, supra, (Emphasis in original.)

¶5However, as I interpret that section, the phrase “during his natural life,” sets the maximum limit for punishment. If that is correct, then it becomes the duty of this Court to apply the law with some reason. This is true, notwithstanding my statement in Seibert v. State, Okl.Cr., 457 P.2d 790, 794, wherein I recited, “Consequently, applying such analysis to the facts of the case under consideration, the punishment [of 150 years] is not so excessive as to shock the sense of mankind.” Knowing what I know now, I would modify that sentence to life imprisonment. And I concede further that the facts in the instant case are so heinous as to cause anyone of ordinary sensibilities to feel that this offender should be taken off the streets permanently; but notwithstanding, it is the duty of appellate courts to apply the law with reason, and not to be guided by emotions, as the jury was. Also, inso-. far as no apparent bodily harm was done to the complaining witness in the instant case, I doubt that a 1,500 year sentence would have been imposed on a “white man,” under identical circumstances.

¶6I concede also that Haskins v. United States, 433 F.2d 836 (10th Cir. 1970), recites: “[I]t is elementary that ordinarily a sentence will not be disturbed on appeal nor considered as cruel and unusual punishment if it is within statutory limits.” However, I fail to find any authority in the Oklahoma Statutes which authorizes a penitentiary sentence in excess of life imprisonment, notwithstanding the position of my colleagues.

¶7*1337Defendant’s fifth assertion of error, in which he complains of a prejudicial inflammatory argument to the jury, is denied because no objections were made. As I view those arguments in the second stage proceedings, they were so fundamentally erroneous that no objection was necessary. Considering that the jury had been qualified for the death penalty; and that “Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than five (5) years,” 1 the prosecutor was permitted to subtly comment on the actions of the Pardon and Parole Board when he said, “This man should live the rest of his natural life if you don’t give him death in the state penitentiary. The law says there is no maximum. It may take a million years to keep him in there that long, I don’t know.” 2 And later he said, “And if it takes fifteen hundred years of penalty to do this that is what we want you to give him.” 3 So, the jury returned its verdict assessing the 1,500 year penitentiary sentence.

¶8In my opinion, when trial courts permit and accept jury verdicts of excessive punishment, as the one in the instant case, and in Fields & Phillips v. State, supra, it makes a mockery of the jury system; and, it constitutes the first step in the abolition of the jury system; and further, when appellate courts approve such ridiculous verdicts they only magnify that mockery and perpetuate the travesty of justice. It should be remembered, a just society is not judged by how it treats its best citizens, but instead, how it treats its worst citizens. In the instant case there is no possible way for the sentence to be satisfied, unless upon defendant’s death his embalmed body is placed upon the cell bunk for the balance of the 1,500 years.

¶9Therefore, while I agree that this conviction should be affirmed, I respectfully dissent to the sentence, because in my opinion, it is patently excessive and violates the Oklahoma Constitution and Statutes. I would modify this sentence to life imprisonment.