¶1dissenting:
¶2I would like to take this opportunity to note my opinion that the Oklahoma “Flight *1333Instruction,” OUJI-CR 806, should be abandoned. There is no valid reason to ever give such an instruction.
¶3However, the crux of my dissent is from the majority’s determination that the use of unadjudicated offenses at the sentencing stage of capital trials is constitutionally permissible. I would join the eight states which currently prohibit the use of this evidence,
¶4In this ease, the State presented evidence at Paxton’s sentencing stage that Paxton allegedly murdered his wife in 1979. The evidence consisted of a charge which had been dropped
¶5Oklahoma allows unlimited use of this evidence at the sentencing stage of capital trials. Woodruff v. State, 846 P.2d 1124, 1141-1143 (Okl.Cr.1993); Johnson v. State, 665 P.2d 815, 823 (OkI.Cr.1983) (a final conviction is not necessary before an unrelated criminal offense can be admitted at sentencing because prior criminal activity is relevant to the continuing threat aggravating circumstance). I find both the Oklahoma and the United States Constitutions prohibit the use of this evidence at sentencing, despite the fact that it may be relevant. Our Constitutions prohibit the infliction of cruel and unusual punishment
¶6In this ease, Paxton was found guilty of killing Donna Kay Neal, discharging a firearm with the intent to kill her sister, and shooting with the intent to kill Edward Peters. Paxton was then provided with a sentencing stage to determine the appropriate punishment for the murder of Donna Kay Neal. However, whether Paxton was sentenced to death for the murder for which he was convicted or for the 1979 murder is impossible to determine. It is possible that his jury did not think death the appropriate punishment for Neal’s murder, but appropriate for the 1979 murder which was witnessed by a five year old child whom they believed was frightened into not testifying. The jury may have effectively sentenced this man to die for a crime for which he was neither tried nor convicted. Such a result violates due process, as one may not be punished for a crime without due process of law. It also violates the prohibition against cruel and unusual punishment, as the death sentence may not be imposed in an arbitrary manner.
¶7I agree with the Supreme Court of Washington’s decision in State v. Bartholomew, 101 Wash.2d 681, 683 P.2d 1079 (1984), which held a statutory provision allowing “evidence of the defendant’s previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity” in the second stage of capital eases violated both the Federal Constitution and Washington State’s Constitution because admission of such evidence was offensive to due process and the prohibition against cruel and unusual punishment.
¶8Furthermore, the Court declined to hold the liberal standard of admissibility regarding mitigating factors should be expanded to aggravating factors, noting the admissibility of aggravating factors is limited by federal and state constitutional considerations. Id. at 1084. One such consideration is unfair prejudice to the defendant. “[Ejvidence prejudicial to the defendant must not be admitted at the sentencing phase.” Id.,citing Gregg, supra, 428 U.S. at 203-04, 96 S.Ct. at 2939 (it is preferable not to impose restrictions on the admission of evidence so long as the evidence does not prejudice the defendant); Gardner, supra, (any decision to impose the death sentence must be based on reason rather than caprice or emotion).
¶9I find the reasoning in the authorities listed above persuasive and would prohibit evidence of unadjudicated offenses at sentencing in capital trials. Though less preferable, an alternative to a complete ban would be to place restrictions on the use of unadjudicated offenses at sentencing.
¶10Such restrictions would be preferable to Oklahoma’s present position allowing unlimited use of unadjudicated offenses at sentencing. However, the best result would be to prohibit use of such evidence altogether. It is unfathomable to me that only prior convictions can be used in non-capital sentencing procedures,
As Texas’ prohibition against the use of unadjudicated offenses in noncapital cases suggests, the use of such evidence at sentencing is at tension with the fundamental principle that a person not be punished for a crime that the state has not shown he committed. In the context of capital sentencing, this tension becomes irreconcilable. This Court has repeatedly stressed *1336that because the death penalty is qualitatively different from any other criminal punishment, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (citations omitted). In my view, imposition of the death penalty in reliance on mere allegations of criminal behavior fails to comport with the constitutional requirement of reliability.
¶11Williams v. Lynaugh, supra, 484 U.S. at 937-38, 108 S.Ct. at 313. I would overrule Johnson v. State, 665 P.2d 815 (Okl.Cr.1983), and its progeny and hold the use of unadjudi-eated offenses at the sentencing stage of capital trials unconstitutional, in violation of both Federal and Oklahoma Constitutional due process protections, as well as the prohibitions against cruel and unusual punishment.
¶12. First, the instruction "serves no real purpose, as it is a particularization of the general charge on circumstantial evidence, and as the state is free to use circumstantial evidence of flight to argue the defendant's guilt.” Cameron v. State, 256 Ga. 225, 345 S.E.2d 575, 578 (1986) (Bell, J. Concurring). More importantly, however, evidence that a person left the scene of an alleged crime proves only that he or she departed. "... [I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilly parties, or from an unwillingness to appear as witnesses.” Alberty v. U.S., 162 U.S. 499, 511, 16 S.Ct. 864, 868, 40 L.Ed. 1051 (1896). The Supreme Court has “consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime." Wong Sun v. U.S., 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 415 n. 10, 9 L.Ed.2d 441 (1963).
¶13. The eight states are Alabama, Florida, Indiana, Maryland, Ohio, Pennsylvania, Tennessee, and Washington. Steven P. Smith, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phase of Capital Trials, 93 Colum.L.Rev. 1249 (1993) [hereinafter Smith],
¶14. The ten states are Arkansas, California, Delaware, Georgia, Illinois, Louisiana, Nebraska, Nevada, South Carolina, and Utah. Smith, supra note 2, at 1271. “While it is true that a two-thirds majority of states (16) considering the issue have rejected a per se bar on the introduction of this type of evidence, it is also true that more than two-thirds of the states (18) have deemed unrestricted use of the evidence unacceptable." Id. at 1267 (emphasis in original).
¶15. To compound the prejudice, the prosecutor told the jury that the reason the charge was dropped was because the only eyewitness, Pam Paxton (Appellant and the deceased's five year old daughter), “wouldn't talk about it.” In fact, the reason the charge was dropped was because Paxton was cleared by a polygraph test. However, because the results of such tests are not admissible, the jury never knew this and instead was led to believe Paxton escaped justice because his young daughter was afraid to testify. This affirmative misrepresentation by the prosecutor was nothing less than prosecutorial misconduct which took away from the fairness and reliability due Paxton in the sentencing stage of his capital trial. Furthermore, I am not convinced it was not error to refuse to allow Paxton to explain why the charges were dropped, as this restricted his constitutional right to put on relevant mitigating evidence. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). "As in Gardner, petitioner in this case was not permitted to ‘deny or explain’ evidence on which his death sentence may, in part, have rested. This error was aggravated by the prosecutor’s closing argument.... Therefore, petitioner's death sentence violates the rule in Gardner." Skipper v. South Carolina, 476 U.S. 1, 9, 106 S.Ct. 1669, 1674, 90 L.Ed.2d 1 (1986) (Powell, J. concurring), citing Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).
¶16. Art. II § 9; U.S. Const, amend. VIII. The cruel and unusual clause is offended because this evidence injects arbitrariness into the sentencing proceedings in violation of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Furthermore, even if use of this evidence comports with *1334the Federal Constitution, Oklahoma's corollary clause offers more protection as evidenced by the fact that it is written in the disjunctive instead of the conjunctive. Thus, a sentence need only be cruel or unusual to offend the Oklahoma Constitution. Of course, I find it both cruel and unusual to allow a jury to sentence someone to death in a manner which results in this Court’s inability to determine whether the sentence was properly imposed for the present conviction, or improperly imposed for an unadjudicated crime for which the defendant never received a fair trial. Such arbitrariness fails to comport with both the United States Supreme Court’s and this Court's death penalty jurisprudence.
¶18. The Court stated that even if it erred in holding the Federal Constitution was violated by the admission of this evidence, the Washington State Constitution’s corollary due process and cruel punishment provisions were nevertheless offended. "The federal constitution only provides minimum protection of individual rights. Accordingly, it is well established that decisions from the federal courts ’do not limit the right of state courts to accord ... greater rights.’ ” Id. (citations omitted).
¶19.For other states which also prohibit use of this evidence, See State v. Bobo, 727 S.W.2d 945, 954 (Tenn.1987) (admission of unadjudicated offenses would violate a number of state constitutional guarantees, including the right to trial by impartial jury, to an indictment or presentation, to confrontation, and against self-incrimination; it would essentially result in a procedure so unfair and prejudicial as to violate due process); State v. McCormick, 272 Ind. 272, 397 N.E.2d 276 (1979) (statute allowing admission of unadjudi-cated offense only if state proves defendant committed it beyond a reasonable doubt at the sentencing stage is still unconstitutional, as defendant would in essence be "tried” of the second murder before a jury which has been undeniably prejudiced by having convicted him of an unrelated murder); Cook v. State, 369 So.2d 1251, 1257 (Ala.1979) (defendants are presumed innocent until convicted — this fundamental tenet prohibits use against an individual of unproven charges in the life or death situation presented at the sentencing stage of a capital trial); Commonwealth v. McCoy, 405 Pa. 23, 172 A.2d 795, 799*1335(Pa.1961); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58, 69 (Pa.1971); Johnson v. State, 292 Md. 405, 439 A.2d 542, 562-63 (Md.1982); Scott v. State, 297 Md. 235, 465 A.2d 1126, 1133-36 (Md.1983); Provence v. State, 337 So.2d 783, 786 (Fla.1976).
¶20. The citations which follow were recorded in Smith, supra note 2, at 1271-1277.
¶21. 21 O.S.1981 § 51.