 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
McCarty v. State2/5/2002
Appellant, Ryan Owen McCarty, was convicted by a jury of three counts of First Degree Murder, in violation of 21 O.S.Supp.1998, § 701.7, in the District Court of Canadian County, Case No. CF 98-518 . Following the verdicts, the Honorable Edward C. Cunningham, District Judge, sentenced Appellant to life imprisonment on each count and ordered the sentences to be served concurrently. From the Judgment and Sentences imposed, Appellant filed this appeal.
Appellant raised the following propositions of error:
1. The evidence presented at trial was insufficient to sustain the convictions under the requirements of the fourteenth Amendment of the United States Constitution and under Article II, § 9 of the Oklahoma Constitution because the State presented insufficient independent evidence to corroborate the confessions of the Appellant;
2. The evidence presented by the State was insufficient to support the jury's verdict that Mr. McCarty was guilty of first degree Murder of Ms. Chisholm's unborn fetus;
3. Mr. McCarty was deprived of effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution;
4. The trial judge abused his discretion in defining viability in the manner chosen during Mr. McCarty's trial, thus violating Appellant's fourteenth Amendment rights to the United States Constitution and Article II, § 20 of the Oklahoma Constitution. Moreover, there is a void in both the statutes and uniform jury instructions regarding viability, thus necessitating this Court to properly define viability of a fetus;
5. Mr. McCarty's rights to due process and a fair trial under the sixth and fourteenth Amendments to the United States Constitution and corresponding provisions of the Oklahoma constitution were violated by the admission of highly prejudicial and inflammatory color photographs; and,
6. The accumulation of errors deprived Mr. McCarty of a fair trial.
After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs and exhibits of the parties, we have determined that relief is required on Appellant's second proposition of error for the reasons set forth below.
A state's interest in protecting fetal survival becomes compelling at viability. Spencer by and through Spencer v. Seikel, 1987 OK 75, 17, 742 P.2d 1126. The determination of viability is a key issue when the State alleges a defendant has committed the murder of an unborn child. Id. at 18, 742 P.2d at 1130; see also Hughes v. State, 1994 OK CR 3, 4, 868 P.2d 730, 731 ("an unborn fetus that was viable at the time of injury is a 'human being' which may be the subject of a homicide . . .."). Viability measures the ability of a fetus to sustain life outside the mother's womb. Evans v. Olsen, 1976 OK 64, 10, f. 3, 550 P.2d 924, 928.
In the Oklahoma statutes regulating abortion, see 63 O.S.Supp.1998, §§ 1-730 - 1-734, "viable" is defined as "potentially able to live outside of the womb of the mother upon premature birth, whether resulting from natural causes or an abortion." 63 O.S.Supp.1998, § 1-730(3). Also within these statutes, there is set forth a rebuttable presumption that " n unborn child shall be presumed to be viable if more than twenty-four (24) weeks have elapsed since the probable beginning of the last menstrual period of the pregnant woman . . .." 63 O.S.Supp.1998, § 1-732(B); see also Davis v. Fieker, 1997 OK 156, 15, f. 19, 952 P.2d 505, 509 ("Viability of the fetus is possible 24 weeks after a woman's last normal menstrual perio
Page 1 2 3 4 5 6 7 8 9 10 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|