Cannon v. State

remand, presented the facts and issues were substantially

materially same as presented first trial. those in the The law Gay I binding on established in the trial subsequent appeals. court and on Al- though two presented Hartford witnesses on

re-trial, no material or substantial facts not

presented Gay I offered on remand. were

CONCLUSION ap- The doctrine settled-law-of-the-case plies materially when issues are the facts and substantially appeals,22 both the same testimony merely

or where is new cumula- presented, tive.23 Under the facts set- applicable, is tled-law-of-the-case doctrine dispositive it of the insured’s reforma- tion claim. The insurance contract should be reformed.

CERTIORARI PREVIOUSLY GRANT- ED; COURT APPEALS OF OPINION

VACATED; TRIAL COURT REVERSED. C.J., HODGES, WILSON,

ALMA WATT, JJ., SUMMERS and concur. LAVENDER, HARGRAVE, SIMMS JJ., dissent.

OPALA, J., disqualified. CANNON, Eugene Appellant, Randall Oklahoma, Appellee. STATE No. F-93-526. Appeals Court of Criminal of Oklahoma. Sept. 1995. Denying Rehearing Order Oct. Harlow, agent writing policy supra; Handy policy, may be re 22. Wilson v. see note 16, supra; Lawton, see note City Pinkerton v. express formed to which was intend contract also, 16, supra; Carter, see note See Smith v. See, Security ed to be made. Ins. Co. New 16, supra. Owens, note Haven, Deal, Okla. Conn. v. (Okla. 1936). Acceptance Corp. General v. Mid-West Motors 17, supra. Co., see note Chevrolet Rowan, Indigent James T. Assistant De- fender, Norman, for defendant at trial. Keel, Caswell, Lou Susan Assistant Dis- Attorneys, City, trict OMahoma for State at trial. Brown,

Cindy Appellate G. Assistant Indi- Defender, Norman, gent appellant ap- peal. Loving, Attorney

Susan Brimer General of OMahoma, Blalock, A. Diane Assistant Attor- General, ney City, appellee OMahoma for appeal.

OPINION

CHAPEL, Presiding Judge: Vice Eugene by jury Randall Cannon was tried before the Honorable Thomas C. Smith in County, the District Court OMahoma of. Case No. CRF-85-3254. He was convicted Degree Aforethought of First Malice Murder O.S.1981, 701.7, § in violation of 21 Third O.S.1981, Degree Arson in violation of 21 1403(A), § Degree Rape First in violation of O.S.1981, 1114, § and Forcible Anal Sod- omy O.S.Supp.1982, § violation of trial, stage At the conclusion of the first of jury guilty.1 the returned a verdict of Dur- 1) ing sentencing, jury found the murder 2) heinous, atrocious, cruel; especially probability there was a that Cannon would commit criminal acts of violence that would continuing society; constitute threat to and 3) purpose the murder was for the of avoid- ing prosecution. arrest or Cannon was sen- conviction, tenced to death for the murder arson, years forty years ten incarceration for law, life, capital 1. Under Oklahoma trials are con- determines whether a sentence of life with- First, stages. jury ducted in two possibility determines parole, out the or death is the guilt the issue of or innocence. If a finds a appropriate punishment. O.S.Supp.1989, murder, guilty degree defendant of first the trial § 701.10. proceeds sentencing stage to a where the rape, twenty years sodomy. outstanding for on an misdemeanor and arrested perfect- outstanding has warrant and two traffic war- these convictions Cannon From propositions suggest seems traffic war- appeal, raising rants. He sixteen ed alleges not exist and the misde- rants did error. warrant was invalid.3 meanor 24,1985, p.m. on June Cannon2 Around Loyd 84r-year-old LaFevers broke into suggests first has The State Hawley’s two house. The ransacked Addie argument. pretrial motion waived No house, Hawley, beat forced her into her legality appears raising of the arrest Buick, point they put and drove off. At some record, among such a motion was Hawley They may in the trunk. have objections motions and heard 58 defense gas can with stopped and filled a bottle or hearing April motions Eventually and Cannon gasoline. LaFevers primary comprised statements Cannon’s lot, Hawley out of stopped near a vacant took hearing in a dire and evidence held after voir trunk, poured gaso- again, beat her then opening before statements on a motion to They on her and set her afire. drove the line suppress gathered illegal ar- evidence from to another vacant area a short distance Buick argues rest. The State that Cannon waived away and set it on Witnesses fire as well. objection legality to the if he all of the arrest by gas car saw the two with a can plea raising charges to the entered before running midnight, from Before the scene. responds he is chal- the issue.4 firefighters Hawley found still alive. She lenging the admission of his based confession about 5:30 a.m. force head died of both blunt seizure, illegal search on an and that covering trauma burns 60-65% of her (which challenge interposed such a must be body. injury Either have would caused opportunity) may at the first be made death. beginning sup- of the trial motion press the evidence.5 While the has a State

PRETRIAL ISSUES point, directly is attacking Cannon the admis- confession, argues Proposition directly attacking Cannon in IX that his sion of not involuntary validity procedural custodial statement was and of the arrest. As the through question arguable inadmissible because it was obtained is the sub- we address illegal proposition.6 an arrest and detention. Cannon was stance of the case, initially plain language argues Cannon and 2. LaFevers were tried to of the Cannon March, 1986, gether pos- and convicted first holds that Wilson officers must have actual degree burglary, robbery, degree kidnap first argument of the warrant. is session This whole vehicle, murder, larceny ping, of a motor malice to the issue irrelevant of whether warrant arson, degree rape, degree third first and forcible was valid. sodomy. appeal anal On this Court affirmed the four, four first holding convictions but reversed latter State, (Okl.Cr.1971); 4. v. Fischer 483 P.2d 1162 mutually antago that the defendants had State, (Okl.Cr.1966). Miles v. 416 P.2d 964 charges nistic defenses as to and should be those State, separately. Cannon tried (Okl.Cr.1969) Thigpen v. 462 P.2d 270 (Okl.Cr.1992) (Cannon1); Lafevers (defendant objected illegal when search first (Old.Cr.1991) (Lafevers1). P.2d 1362 The Can- evidence). used to opinion analysis nonl often refers to in Lafeversl. subsequently and Cannon LaFevers were tried suggests previous also The State that Cannon’s separately. recently This Court affirmed LaFev- resulting convictions the non-intent crimes degree ers' conviction for first murder and third collaterally estop from this arrest should him degree arson. LaFevers v. 897 P.2d 292 attacking validity from case, of the arrest in this (Okl.Cr.1995) (LaFevers2). validity as of the arrest could have been emphasizes police appeal 3. Cannon did that not have a in that direct not. The raised but was that, copy of the warrant at the time of airest. He State cases which a civil suit cites hold acknowledges police required pro- not that are to based actions which on resulted in criminal long parties ceedings, collaterally estopped have warrant with them as as a defen- are from acting relitigating conclusively dant is informed officers are under au- issues deter- which were informed) thority (Cannon prior proceedings. of a warrant was so mined in criminal The produce officers can the warrant if a defen- State that “it more true submits should be even not). (Cannon parties subsequent asks to see dant it did Wilson v. in a criminal action are (Okl.Cr.1994). Contrary relitigating estopped P.2d 46 to from have been issues that jail that the misdemean- been out of before the time he made Cannon claims Hawley’s its face. to or warrant was invalid on statements about murder offi- outstanding day. on an misdemeanor following speculative was arrested cers the This is at suspended for “violation of sent warrant do best. We not find that the warrant was facially The warrant valid but it face, ence”.7 any possible invalid on its error setting lacks an endorsement the amount would be harmless because Cannon has argues requires that the law bail. Cannon addition, prejudiced. shown he was In if the fix the amount of bail with an warrant to out, misdemeanor warrant thrown were endorsement to that effect for all bailable appear uphold traffic warrants sufficient found, offenses.8 This Court has not legality of the arrest.11 cite, any holding fails cases illegal Cannon also claims that arrest failure to include the bail endorsement on the requires suppression of his custodial state- warrant at the time of arrest renders illegal, ments. As the arrest was not Can- argues invalid.9 The that bail warrant State poi- non’s statements were not “fruits of the was not set on the warrant because Cannon sonous tree” and were admissible. brought magistrate was never before a (at charge which time bail would have X, com determined). been Less than hours after plains adequately the State failed to establish arrest, charged Cannon’s June 25 he was knowingly voluntarily that he consented accompanying with murder and the offenses to a warrantless of his home. Cannon search charges. and held without bond on those was arrested and booked on misdemeanor Generally speaking, delay of more than 48 during traffic warrants the late after presumptively hours is unreasonable.10 Can evening prejudiced by noon or of June 25. The next morn non claims he was the lack of ing delay seeing mag Officer Pacheco came to Cannon’s cell endorsement and the because, sign istrate if bail had been set at and asked he would a consent arrest, allowing police time of he could have made bail and search form to search his (the conclusively litigated prior ''plaintiff” in a criminal case.” would allow the same criminal face, Oklahoma) Whatever the merits of this statement on its as State benefit from an issue First, directly litigated appeal applied was not or raised on to this case it is incorrect. these trial, previous proceedings. concepts apply litigation criminal Cannon is not col- and the State is laterally raising estopped questions regarding from attempting appellate to extend them to determina- Second, his arrest. charged tions. the crimes and issues raised in this trial are not same as the crimes copy 7. A as a warrant was submitted Third, charged and issues raised in Cannonl. supplemental appeal accepted record on as validity conclusively issue of the of arrest was not 1, filing April tendered for on 1994. Cannonl, (as regards appel- determined in nor opinion) litigated Saying late was it at all. O.S.1991, § 8. 22 appeal Cannon could have raised that issue in that saying conclusively litigat- is not the same as it was 9. Cannon's cited cases concern warrantless mis- confusing ed. The State is this with collateral demeanor arrests. estoppel post-conviction applied as review of a capital appeal case in which an has been decided: County McLaughlin, Riverside v. 500 U.S. there, estopped raising a defendant is from in later (1991); 111 S.Ct. 114 L.Ed.2d 49 Black appellate proceedings an issue which could have 35, 37, (Okl.Cr.1994) (see appeal. been raised on direct This is the first J., dissent). majority opinion Chapel, both appeal. direct This case cannot turn on whatever issues were or were not Fourth, raised in Cannonl. arresting they 11. The officers testified that knew analogy between criminal and civil outstanding warrant and of one misdemeanor faulty. Supreme cases is The Oklahoma Court they two traffic warrants. While did not have context, estopping parties noted that in a civil from arrest, evidence the warrants at the time of relitigating properly prior issues determined in they copy of the traffic showed needed proceeding judicial criminal conserved resources warrants in order to book Cannon on those proper plaintiff and was because the civil was not charges. clearly record indicates the war- The benefitting prior prosecution. from the criminal sufficient to rants existed and would have been (Okl.1989). Knight, By Lee v. war- sustain the arrest without the misdemeanor here, following suggestion the State’s this Court rant. In a hearing, knowingly house. Jackson-Denno12 Pa- intelligently show he explained right checo request, testified he and waived his to a search warrant.16 Can- agreed sign hap- Cannon a consent non claims that form his Pacheco’s visit did not parents present pen signed brother or and he during were never the form. Cannon signature asserts that the on interpolated search. Pacheco testified he the form is not his, as it does not match condition on the form and Defendant’s Exhibit Cannon l.17 signed preventing it.13 Cannon succeeded in Cannon testified he not did re- copy being of the consent form from admit- only people member this at all. He said the evidence, ted into therefore Court cannot who visited him on the 26th were the same compare signatures. court,. The trial (including officers who arrested him Pache- however, ample co); opportunity compare had signing Cannon denied the consent form the two and determined that the evidence signature and said the on the form was not signed showed Cannon the form. Without signed his. Cannon paper another sheet of review, evidence to this Court will not stand; while on the the record indicates that second-guess the trial court’s decision. In signature differed from the one on the con- addition, clearly supports Pacheco’s evidence (Defendant’s sent form Exhibit 1 does differ trial ruling knowing- court’s that Cannon slightly signatures from the on Cannon’s ly voluntarily right waived his to a statement, written which he also could not search warrant. signing). original remember The consent apparently form was lost between the first JURY SELECTION and second trials and photocopy provided XVI, hearing complains was not admitted into evi- subparts. dence. The voir dire errors in gave trial court found three He claims juror cause, knowing voluntary improperly excused for consent to search. juror improperly another taken in camera Where evidence not excused for sufficient cause, and that he should ruling a trial have received addi- court’s that a defen- peremptory tional challenges. voluntary dant’s statements are and admissi- ble, this Court ruling will not disturb the argues prospec first appeal.14 juror tive improperly Vann was excused for police

Cannon concedes that do not need a right impartial cause. Cannon’s to an search,15 warrant to conduct prohibits a consent but the exclusion of venire members claims that the State has not general objections met its burden who voice to the death Denno, 12. Jackson v. alleged request booked. Cannon has not that he (1964) 12 L.Ed.2d 908 established a defen- attorney ed right an or invoked his to silence at right hearing dant’s to an in camera on the Testimony that time. showed that officers did voluntariness of his confession. speak booking to Cannon between and Pa allege checo’s visit. Cannon does not that he did 13. Evidence did not show whether Pacheco re rights not understand his vis a vis the consent peated warnings asking the Miranda before Can form. non for consent to search. Cannon claims this Court has held that a valid custodial consent to State, 1366, McGregor 14. v. 885 P.2d preceded by 1377 n. 20 warnings. search must be Miranda (Okl.Cr.1994); State, 1152, (Okla He relies on .Cr.1972), Turner v. Schorr v. 499 P.2d 803 P.2d 450 (Okl.Cr.1990), denied, grounds, 1233, overruled on other Rowbotham cert. 501 U.S. (Okl.Cr.1975), 2859, v. judgment 542 P.2d 610 (1991). 111 S.Ct. 115 L.Ed.2d 1026 remanded, 907, vacated and 428 U.S. 96 S.Ct. 3218, (1976), 49 L.Ed.2d 1215 to modified life 971, Kennedy 15. imprisonment, (Okl.Cr.1976). 554 P.2d 814 Al 1982). though nothing specifically portion overrules this Schorr, only dissenting ques it is cited in or See, Kudron, e.g., (Okl. State v. 816 P.2d 567 tioning opinions subsequent to Rowbotham. Cr.1991) (failure object to search does not Since Rowbotham this Court has not held Mi consent). equal warnings required randa obtaining are before consent to search. The record here does not gave show whether Pacheco Cannon Miranda signature 17. Cannon also claims the on the con- form, warnings discussing when the consent but completely signa- sent form is different from his warnings evening received such on the tures on other in the documents record. of the custody 25th when he was taken into against impo- automatically er Hooks would vote for the express scruples its penalty or “Well, penalty, yes, I question is whether death he said would.” sition.18 The relevant answer, prevent repeated or After Hooks trial juror’s views could substan- tially impair performance questioned of his duties as court him. The trial court sum- answer, juror in accordance with the instructions marized Hooks’ a civil then used juror’s analogy explain why important A views do not have case it and his oath.19 clarity.20 proved with unmistakable to determine in voir dire to be whether Hooks juror “I responses proper This has held such as would be a in Court the event the trial stage. believe I could” sufficient to dismiss don’t reached the second Cannon com- jurors plains explanation manner and for cause.21 The extent told Hooks that if he discretion of punishments of voir dire are within the refused to consider other he court, jury, trial and will not be disturbed absent would not be allowed on the in effect say instructing an abuse of discretion.22 Hooks to he all could consider despite in alternatives his beliefs. Read argues that Vann was im context, clearly the trial court tried to avoid properly he said he excused because problems raising punishment inherent opposed penalty right and in the death conviction, emphasize issues before imposing thorough would consider it. A case proven guilty Cannon was until innocent reading transcript of the shows that Vann explain court had to ask these being not understand what was asked. did questions now because there would be no Initially personally op he said he was not opportunity later. In no sense did court posed penalty to the death but could not subsequent responses. direct Hooks’ imposing juror. consider it as a Later he fairly Hooks confirmed that he could agreed preconceived he would have notions equally punishments consider all three appropriate punishment but admitted he evidence, meant; based on the and stated that his phrase did not know what up mind would not be made until he heard punishments he could consider all but his closed; the evidence. He then said that he would mind was and that he didn’t believe preconceived have a notion in favor of the penalty. Finally it the death became clear penalty. rephrased death The trial court previous questions, he had misunderstood the notion”, question, “preconceived defined hearing “oppose” the word for the asked any aggra stressed that this would be before “impose”. clearly word The record reflects vating mitigating punishment evidence on in and that Vann did not believe would not presented, engaged following impose penalty, death and his excusal for exchange: cause was not an abuse of discretion. you telling Court: the Court that [A]re next claims that the trial you preconceived would have a notion as to refusing erred in to excuse venireman court what the sentence would be? A Hooks for cause. criminal defendant has a No, Hooks: sir. any juror

right to remove for cause who automatically penal already up have would vote for the death Court: You would made evidence, your you ty regardless mitigating on conviction evid mind before heard the ence.23 When defense counsel asked wheth- other words? Illinois, (Okl.Cr.1986), Witherspoon 391 U.S. 88 S.Ct. 22. Smith v. denied, 20 L.Ed.2d 776 rt. ce Banks, (1987); 701 P.2d at 97 L.Ed.2d State, (Okl.Cr.), 19. Walker v. 723 P.2d 273 cert. 423. denied, 995, 599, 419 U.S. 107 S.Ct. 93 L.Ed.2d Witt, 412, (1986); Wainwright 469 600 v. U.S. Illinois, 719, Morgan 844, 23. 112 S.Ct. (1985). 105 S.Ct. 83 L.Ed.2d 841 2222, (1992); State, 119 L.Ed.2d 492 Ross v. 111 Walker,

20. 723 P.2d at 281. 117, (Okl.Cr.1986), aff'd, P.2d 120 Ross v. Okla homa 487 U.S. 101 L.Ed.2d Walker, 281; State, 21. 723 P.2d at Dutton v. 674 80 (Okl.Cr. State, 1984); P.2d 1134 Banks v. 701 1985). (Okl.Cr. P.2d 418 98 No, argument

Hooks: sir- Hooks. Cannon’s must fail here trial refusing because the court did not err in you believe that death is the [D]o Court: to remove Hooks for cause. made a Cannon appropriate punishment? only closed, requesting after voir dire record addi- No, Hooks: sir.... jurors peremptories naming tional two you guilty If found the defendant Court: challenge granted per- he would if additional beyond a reasonable doubt of murder in emptories. preserved Cannon has thus degree, you automatically the first would appeal.24 clearly issue for Oklahoma law penalty impose to the death no matter vote provides that a defendant is entitled nine what the facts are? peremptory challenges capital trial.25 a say I — - I no- would Hooks: refusing trial Had the court to ex- erred killing] you an intentional could [In Court: cause, requested for cuse Hooks Cannon’s fairly anything but death as a consider remedy would have been This unavailable. punishment? subproposition is without merit. Yes. Hooks: You Court: could? ISSUES RELATING TO GUILT Hooks: Yes. AND INNOCENCE you? for Court: Would it be difficult ruling claims that Cannon this Court’s re- No. Hooks: No. versing his 1986 convictions barred future Although cursory reading of the exami- prosecution ground- because the decision was might suggest unfit nation Hooks was to sit finding permissible ed in a that the evidence jury, colloquy on the read as a whole this supporting the convictions was insufficient supports, finding that Hooks would not conviction, for thus Cannon’s retrial vio- automatically impose penalty. the death jeopardy. argues lated double Cannon that, complains after the first re- Ccmnonl, opinion this Court’s while osten- sponse, Hooks should have excused for been sibly separate a reversal and remand for and the trial court cause should have trials, actually a reversal on based insuf- engaged any rehabilitative effort. The evidence, ficiency jeopardy of the double at- trial was able to Hooks court observe as he tached, and retrial was This barred. Court evidently by answered was unconvinced rejected argument pro- when it response. will his initial This Court not sub- pounded by LaFevers.26 judgment its trial stitute that of the court determining questioning when if more propositions two Cannon com necessary to confirm Hooks’ whether views plains stage that first on instructions malice penalty disqualified death him as a aiding abetting murder and im were so juror. The trial court did not abuse its dis- proper misleading they created reversible in continuing question cretion Hooks and supported error or not whether the evidence refusing to remove him for cause. charged. object the crimes Cannon did not finally complains that the of instructions at trial and waived refusing grant trial court erred in plain all but error.27 This Court will not peremptory challenges instructions, additional when he disturb a verdict taken as a whole, challenges accurately used one his nine to remove applicable state the law.28 LaFevers2, 24. This Court has cannot held defendant dem- 26. 897 P.2d at 302. prejudice onstrate where he has made no record jurors challenge he would he not used had (Okl.Cr. 27. Kamees 815 P.2d peremptories challenge jurors not removed 1991); (Okl. Ashinsky v. 780 P.2d the court. Tibbs v. Cr.1989). Ross, (Okl.Cr.1991); 120; 717 P.2d at Ross v. Oklahoma, 89-90, 487 U.S. at S.Ct. at 2279. 1383; McGregor, Had to been there error in the court’s refusal trial 885 P.2d at Garcia v. Hooks, excuse Cannon’s would 1987). record prejudice. claim O.S.1991, § 25. 22 vacuum; underly- they explicitly refer to the argues that the II Cannon Proposition

In that the ele- ing charged crime and indicate him abetting allowed aiding and instructions charged offense must be aforethought mur- ments of the malice of to be convicted whole, the instructions proved. Read as any showing that he intended der without jury that charged clearly required the to find Can- was Hawley killed. Cannon be Ms. murder, rape, Hawley’s death and felony non’s conduct caused and malice murder with life, clearly to take her or that he forms that he intended The verdict in the alternative. knowing LaFevers’ acts of malice aided and abetted convicted of that Cannon was show intent to take Haw- sharing that and in LaFevers’ theory at trial was The State’s murder. not erro- ley’s as a These instructions were guilty malice murder life. of Cannon (if by aiding abetting LaFevers neous. principal and statement) and jury believed Cannon’s complains of IV Cannon Title principal by his own actions. also as a person no which states that Instruction 701.7(A), O.S.1981, § malice as the defines degree murder may be convicted of first away unlawfully take deliberate intention conduct of another unless his conduct or the being, manifest- human which is the life of a criminally responsible person for which he is capable of circumstances ed external death, and that the con- caused the victim’s proof. bringing “a factor in duct must be substantial aiding instructing on argues that Cannon dangerous the death and the conduct about specific of abetting negated the element and destroys threatens or life.”30 Cannon and jury to convict kill and allowed the unnecessary intent to argues that this instruction was general had a of malice murder he disputed the confusing since he never and that the aid- intent. Cannon claims death, Hawley criminal killing of but denied cause jury abetting instructions allowed ing and in her death. aiding abetting and LaFevers they had the intent convict him if found he jury might have viewed claims that the He and the State alternative, to commit crime. Cannon along with simply this as a third criminal intent is an agree proof murder, felony a con- malice and a murder conviction essential element for threatening generally viction based on theory. No- aiding abetting under an and Hawley’s house dangerous conduct that, aiding body fact under the contests the kidnapping). This (burglary, robbery and abetting theory, jury had to find language of argument mischaracterizes crime. In- principal to the Cannon was instruction. correctly “prin-' defined structions 36 and 37 correctly the OUJI 100 State, any not kill the victim.32 That he did rational trier of fact have

claimed could harmless because the was defendant found error the essential elements of the crime object at trial and because the evi- did beyond accept a reasonable doubt.33 We will perpetrator that he drank with the and dence credibility reasonable and inferences choices participated burglary in a would not related tend to the trier of fact.34 In an jury believing the confuse into that conduct case, aiding abetting and we will not disturb degree alone warranted a conviction for first supports jury’s a verdict where evidence the murder. findings.35 that, correctly — — Hawley Hawley’s Near the scene where entered house and Cannon burned, a witness Gaither saw blond- money. He heard La- began looking for man with a bandanna in the driver’s haired money. and ask for Fevers strike her Hawley’s seat of Buick while a brown- — Hawley’s brought LaFevers Cannon pas- haired man stood at the back on the opener. garage door purse with her senger .passed, side. After he he saw the — Hawley’s Buick while Cannon started standing man to the oth- blond-haired next dragged put her to car and LaFevers gas er man car. He saw a can behind the got LaFevers in the her the back seat. passenger side behind the trunk. away. front as drove seat Cannon explosion He later heard an and saw the — Hawley ear and fell from the Cannon same car on fire in a different location in away the house. re- drove from Cannon general the same area. get Hawley at La- turned to the scene to — At car the scene where the because, said, LaFevers Fevers’ direction burned, a witness Baker saw blond man drove off with La- “she saw us.’’ Cannon pouring something with a bandanna Hawley screaming Fevers the front and can, gas around and on the car from a “don’t do it” in the back seat. LaFevers standing nearby looking a man dark-haired they get said “had to rid of her”. around. saw the two men run from She — pulled put Cannon over LaFevers Shortly the scene. afterwards she heard a Hawley in At di- the trunk. LaFevers’ (later “boom” and saw the car identified as rection, stopped he at a convenience store Hawley’s) burning. and LaFevers filled a 2-liter soda bottle — ear, At scene of the witness Col- gas. with walking lins saw a blond-headed man — Eventually pulled Cannon over and gas around car with a can and a Hawley LaFevers took out of the trunk. brown-headed man she identified as La- — LaFevers told Cannon he would have putting rag gas in the tank outlet. Fevers Hawley. La- sex with Cannon watched explosion Shortly afterwards she heard an rape Fevers her. burning. and saw the car — drag Cannon watched LaFevers Haw- — Parkey, manager of Check Mate ley again into the field. LaFevers said club, usually confirmed that wore got LaFevers the bottle of “she saw us.” long his hair with a bandanna. After the gas from the car. crime, when he returned she saw Cannon — pour gaso- Cannon watched LaFevers singed wiped to the hair and club. She Hawley. line over Cannon refused arm and saw raised blood from Cannon’s her, lighted throw a match on but he appeared arm that to be a skin on his light watched LaFevers a match and set burn. Hawley Hawley afire. The two watched as — Cannon, he, Goolsby agreed and La- burned. LaFevers’ Fevers wrecked abandoned — Hawley’s car a short Goolsby Cannon drove saw Cannon afterwards Camaro. rag put gas-soaked distance. LaFevers hair his arms was and noted that the outlet, gas gas poured in the tank on the singed burned hair. and he smelled like — car, it on fire. Both defendants and set examination revealed blood Forensic away. ran spatter, of it consistent with Haw- some blood, jeans. ley’s on Cannon’s shirt connecting to the Other evidence crimes included: provides statement alone Cannon’s — him of malice Hawley’s neighbor Ryan a man sufficient evidence to convict saw Hawley The could infer

greatly resembling drag murder and arson.38 “No, .car, aforethought encouragement or saying malice from the house to her us”, actions from Can assistance of LaFevers’ you’re going with while a brown- Hawley non’s admission he returned haired man drove her car. of the sex offenses. 38. See VI for discussion escaped proof

after “she she because saw us” and axiomatic that each element of a (LaFevers they get “had to of her” rid crime must be introduced order to sustain statements, made these but Cannon acted on a conviction.40 them). If the had doubt as to independent The State claims as intent, knowledge Cannon’s of LaFevers’ it evidence, first, corroborating Hawley dispelled been when should have Cannon said cannot found nude. This alone serve as drag Hawley he LaFevers watched into any charge; for assault corroboration sexual field, say again heard “she LaFevers saw only that, it corroborates Cannon’s statement us”, gas get pour and watched him the and it by rape, Hawley’s the of the time clothes Hawley. protest on Cannon’s that he didn’t gone. were Cannon did not recall when or to know what LaFevers meant do and didn’t pair green how that A of occurred. loose course, intend the result is incredible. Of pants was at the the road found side of near suggests participated other evidence Cannon says place. where Cannon the attack took directly suggestion in the crimes. Cannon’s pants bloody leg The were and one that most the evidence shows at that he was emphasizes inside out. The State this evi present during the crimes is untenable. Suf- pants dence and claims the corroborate the present ficient evidence was for the to assault, they sexual as were unburned and find the essential of both elements malice appeared hastily. have to been removed degree murder and third arson. very possi Even if this weak evidence could VI Cannon cor bly support any charge, sexual assault no rectly rape sodomy claims that his and con independent pants evidence connects those to victions must be reversed with instructions to Hawley. tape, says the Hawley On alleges dismiss. Cannon that the State failed (he “green wearing nightgown” thing prove corpus to of delicti the crimes vague). identify is pants He does not those charged independent of Cannon’s statem being as interprets hers. Even if one compelled ent.39 This Court is to reverse “green nightgown” identify statement to because, statement, even with Cannon’s there green pants Hawley’s clothing, those as this simply not sufficient evidence of the ele offenses, evidence cannot the sex corroborate rape sodomy ments of either or to sustain a (1) (“green because: Cannon’s statement provide conviction. Cannon’s statements (2) nightgown”) cannot be used to connect only rape of and sodomy evidence anal scene) pants victim, (green evidence to the and indicate that at most Cannon must have which independent is then used as evidence been aiding abetting convicted of and these (3) corroborate Cannon’s statement that actions. Cannon said LaFevers said he By reasoning, offenses occurred. this Hawley, he, would have sex with and that using Court would be Cannon’s state Cannon, Hawley saw LaFevers sex with have ment independent as evidence corroborate lay up, while she face turn then her over. if indulge statement. Even we were to Hawley’s no vaginal There was trauma to gymnastics, these Cannon’s statement that (those burned). rectal areas areas were not sex, he saw being LaFevers have without Neither the medical examiner nor the foren occurred,'is actually able to confirm what not expert sperm sic found semen or on the enough any in the absence of other evidence that, body. Cannon stated from a distance in support these convictions. poor lighting, he saw LaFevers commit the acts, but he did is not not confirm the There sufficient evidence to intimate support rape sodomy details of the crimes. Penetration is an es Cannon’s and anal con offenses, victions, they sential of element these must be reversed with simply support evidence does not the conclu instructions to dismiss. This has Court care sion fully that either offense was committed. It is considered the effect of this decision on may competent A Virginia, confession be considered 40. Jackson v. i.e., support trustworthy, a conviction if it is 61 L.Ed.2d substantial, independent corroborated evi (Okl. dence. Fontenot v. Cr.1994). As this you individual had low count and sperm this ease. the other convictions little, any sperm admitted cells properly have been would find be- evidence would gestae of crime part as the res hind.” of case, these does of convictions reversal unaccountably claims that arson. for murder and affect the convictions testimony beyond scope of each carefully whether

We also considered have expertise. asserts witness’s imposition of jury’s these reversals affect physical found in since no evidence had been penalty, the death have concluded to, they experts the cases the referred relied sufficient to the evidence was occurred, personal opinions rapes had aggravating circumstances the absence knowledge they personal had no these We find that dismissal convictions. occurred, actually alleged rapes had anal sod- rape Cannon’s convictions only reviewing physi expertise their went omy require modification does not reversal or presence for the of indicia cal evidence arson of convictions for murder and Cannon’s testimony rape. expert of is with Admission or his of death. sentence discretion, if in the trial court’s such scienti Proposition complains In VII Cannon fic, specialized knowledge technical or other testimony expert and forensic the medical opinions of will assist the trier fact.41 These rape import of lack of concerning the the in obviously assisted trier of fact the deter province of improperly invaded the evidence meaning mining of the the evidence observed case, to and was jury, the was irrelevant the by expert, expert explicitly each each outweighed prejudicial any probative it so experience.42 based on his or her testified examiner, Balding, value. medical Dr. The my “[i]n examination that testified on direct argues Proposition in Cannon usually you don’t experience it’s the rule that failing the trial in VIII that court erred to in find trauma cases of sexual assault.” give “exculpatory uniform statement” in the objected to the sub- Cannon neither this nor struction, OUJI-CR-816. When the State sequent question and answer: which, exculpatory introduces an statement if they’ve true,

Q: your experience acquittal, if it would entitle the defendant to “[I]s always go- sexually you’re acquitted been assaulted be the statement he must unless sperm ing presence disproved by of or to be false to find the semen has been or shown in vaginal in evidence a canal?” other direct or circumstantial the trial court case.43 Cannon claims “No, necessarily A: doesn’t fall sir. One failing give to sua OUJI-CR-816 erred from other.” hearing of sponte after the evidence Can Gilchrist, Joyce expert, The forensic regarding the sex non’s statement offenses. experience always asked in her she whether requested neither the instruction As Cannon vaginal swabbings in found or anal semen objected failure nor trial court’s case, objection: rape responded over plain for give it this Court will review error “No.”_ all, A: “First of and most fre- only. that the quently, we find our evidence completed, not therefore claims that his statements “were sexual act is Cannon ejaculated, nothing clearly exculpatory left within statement there is no semen say why. not be victim had rule” but does Cannon stated behind. Or it could that the showered, going to have changed an amount that LaFevers said he was sex clothes and Hawley Hawley, passed of that there will with LaFevers took from time had such ground, it that the car and threw on the nothing be found. Or could be her 43. Sadler, 386; O.S.1981, § 846 P.2d at Stiles v. 829 41. 12 (Okl.Cr. 1992); P.2d 984 Knott (Okl.Cr.1967); 128 Mitchell v. McCarty Cannon’s reference 1965). exculpatory statement (Okl.Cr. 1988), An is inappo- completely P.2d is capable tangible regarding matter one factual that case were site. The Court’s comments in specific disproof to clear a opinions of which tends defen expressed in this directed toward not guilt justify or his actions. trial. dant from only rape aggrava- him Even if one can if imposed saw her. be certain limited affirmative, tangible, factu- this as a construe ting are a mur- circumstances found. Unless capable specific disproof, it al matter of does der, person or the who committed the mur- exculpate charge Cannon from der, carefully falls within one or more of the aiding abetting the offenses. There is statutory aggravating circum- circumscribed error no here. stances, penalty may death not be consid- Proposition argues In XI Cannon that the among possible options. sentencing ered jury refusing court allow the trial erred case, alleged In Cannon’s the State and the during audiotape deliberations review three aggravating found circumstances: 110) (State which his statement Exhibit (1) heinous, especially the murder was atro- played been at trial. Dur- had admitted (2) cruel; cious, probability there stage first sent a ing deliberations would commit criminal acts of they which asked if could listen to the note continuing violence that would constitute a and, so, they tape, whether could have a (3) society; and threat to the murder was objection tape recorder. Over Cannon’s purpose avoiding prosecu- arrest or request inappropri- court as trial refused the tion. ate. question

The is State’s whether III argues that his Exhibit is testimonial or non-testimonial death sentence invalid because the State testimonial, If trial court in nature. the is prove that failed to Cannon intended that the required procedures to follow certain before victim be killed and the trial court failed to denying request.44 or If granting the the jury findings instruct the accor make in non-testimonial, is the trial court has exhibit 47 dance with Enmund v. Florida or Tison v. discretion to allow it into deliberations like argues jury Arizona.48 Cannon in that the clearly other is exhibit.45 This exhibit allowed him structions to be convicted with non-testimonial. It was a statement obtained beyond proof out a reasonable doubt that he during the defendant course of an from the Hawley’s This, says, death. intended he vio trial, investigation admitted into evidence at requirement lates the in the sentencer representation testimony but NOT a of the of capital find culpability case individual and audiotaped a witness at trial.46 Cannon’s intent each testimony, defendant. admits confession was not trial and the court felony trial did not abuse its discretion in that Enmund and Tison mur concern refusing replayed it allow to be deliber prosecutions may der where each defendant ations. degree partic have a different intent and of crime, ipation acknowledges in the and ISSUES RELATING TO PUNISHMENT he, Cannon, was convicted of murder. malice says He nevertheless the Enmmd/Ti- Cannon raises six related ex issues principles apply son should in malice murder clusively stage to the second of his trial. law, penalty may presents aiding Under Oklahoma the death the cases where State an 193, (Okl.Cr. 195; Duvall, Pfaff, v. 195 45. P.2d 830 at 44. Pfaff 1992); 1989); (Okl.Cr. Duvall v. 780 P.2d 1178 1180. 316, (Okl. Martin 747 320 P.2d Cr.1987). testimonial, If an exhibit is the trial 888 Lambert P.2d 506 open jury parties must court call the into 1994); Pfaff, (Judge Lumpkin, 830 P.2d at 195 (1) court and nature determine exact specially concurring). (2) jury difficulty; can isolate if the court precise testimony tion; jury ques which will solve the (3) probative whether the value of S.Ct. 73 L.Ed.2d replaying testimony outweighs possibility (1982). emphasis testimony. undue on the After these considered, may repeat are factors the trial court 48. 481 U.S. S.Ct. 95 L.Ed.2d 127 open some testimonial similarly court exhibits in or in a Pfaff, controlled environment. at 195. P.2d theory. abetting specific, vague, Cannon makes no coherent been held to be argument this statement.49 understandable,52 readily argues but that this holding recently was error. This Court Enmund request an Cannon did not aggravating narrowed the standards for this instruction, plain and has waived all but err consistently rejected circumstance and has II, in Proposition or.50 As discussed argument variety this in a of eases Cannon jury adequately regarding was instructed urges the Court to reconsider.53 Cannon necessity specific finding for a of malice be offers us no reason to reconsider these deci- En- Any conviction for fore malice murder. sions. mund instruction in the second stage would erroneously require jury to reexamine finding guilt; jury properly Subpart

their In B Cannon this addresses aggravating instructed and had to assume that intent was circumstance that mur during stage an fact heinous, established the second especially der atrocious or cru proceedings.51 given el. The the standard instruc (OUJI-CR 436) tion limiting the use of this Proposition XII, Cannon attacks all aggravating circumstance to cases in which aggravating by three circumstances found by preceded the death was torture or serious jury. Cannon claims that Oklahoma’s physical aggravating abuse. This “heinous, circum “continuing society”, threat to atro- cious, cruel”, limiting stance is valid when this or construction and “murder to avoid arrest applied.54 prosecution” aggravating argues paragraphs circumstances unconstitutionally vague overly are inherently one and two of this instruction broad on their face and as construed disagree. conflict. Paragraph We one of the object Court. Cannon did not to the instruc- “heinous”, instruction defines the terms trial tions at and has thus waived all but Paragraph “atrocious” and “cruel”. two tells plain error. There was no error these in which situations those terms instructions. may applied. be Cannon is also mistaken supposing this Court has added conscious Subpart In A Cannon claims that the “con- suffering separate aggra as a tinuing element aggravating threat” circumstance is n unconstitutionally vating vague on circumstance. This its face. Cannon Court has held acknowledges that this that a circumstance has victim must be conscious in to order State, 707, Judge Lumpkin's Lafeversl, 49. He cites dissent in 53. Malone v. 876 P.2d 717 which, discussing 1994); State, 1186, mutually antagonistic defens Mitchell v. 884 P.2d 1208 es, distinguished exculpation (Okl.Cr.1994); State, 1157, between Hogan as to inno v. 877 P.2d exculpation regarding culpa (Okl.Cr.1994); State, P.2d 291, cence and levels of 1162 v. 876 Snow bility. Judge Lumpkin found that the (Okl.Cr. 1994); State, defenses 298 Revilla v. 877 P.2d only culpability, went to so would have deter 1143, (Okl.Cr.), denied, -U.S. -, 1153 cert. supported mined whether the evidence at trial 764, (1994); 115 S.Ct. 130 L.Ed.2d 661 Ellis v. jury’s finding prin that both defendants were State, 1289, (Okl.Cr.1992) 867 P.2d 1301 cert. cipals killing in the crimes and knew the would denied, -U.S. -, 178, 115 S.Ct. 130 L.Ed.2d used, place, take knew lethal force would be State, 203, (1994); 113 Trice v. 853 P.2d 220-221 killed, kill, attempted required by as En- - (Okl.Cr.), denied, -, cert. U.S. 114 S.Ct. analysis specifically mund. This is tied to the 638, State, (1993); 126 L.Ed.2d 597 Pickens v. culpabil determination that the went defenses 328, (Okl.Cr.1993), 850 P.2d 339 cert. denied, ity only, support argu and does not Cannon's - U.S. -, 942, (1994). 114 S.Ct. 127 L.Ed.2d 232 Lafevers1, ment here. 819 P.2d at 1371. State, See, (Okl. e.g., v. 742 P.2d 562 Stouffer during stage 50. Cannon did move the second Cr.1987) denied, (Opinion Rehearing), cert. providing strike the Bill of Particulars as 1036, 763, 484 U.S. 108 S.Ct. 98 L.Ed.2d 779 evidence of his intent under Enmund. This mo- (1988); State, 18, (Okl.Cr.1992), Clayton v. 840 P.2d 28 tion was overruled. denied,-U.S. -, 1655, 113 S.Ct. cert. 123 L.Ed.2d 275 (1993); v. 832 1151, (Okl.Cr.), 51. Mann v. 1161 Stafford (Okl.Cr. 1992); Rojem denied, 877, 193, P.2d 20 v. cert. 488 U.S. 109 S.Ct. 102 denied, 900, (Okl.Cr.), (1988). 359 cert. 109 L.Ed.2d 163 249, (1988); S.Ct. 102 L.Ed.2d 238 United States (10th See, Cir.1993); Kelly, e.g., Boyd 1 F.3d 1143 Wal P.2d 1371 Arizona, (Okl.Cr.1992), denied, -, - ton v. U.S. cert. U.S. (1993). S.Ct. 125 L.Ed.2d 697 L.Ed.2d 511 abuse, physical grounds suffer torture or serious but aggravating for this circumstance separate history (including this is not a element on include a of violent conduct which the adjudicated unadjudicated offenses),59 Finally, must be instructed.55 the facts of the homicide of which every injuries claims that the defen- homicide involves convicted,60 dant grounds and other in- may phys- which be characterized as “serious threats, remorse, cluding attempts lack of approved ical abuse”. This Court has prevent help, testimony experts, calls for construction, physical “serious abuse” but family and mistreatment of members. disapproved phrase physical “serious following reasoning harm” Cannon em- appear Cannon does not to have a ploys.56 proper.57 This instruction was (his prior history of violent crime misde Subpart In aggrava- 3 Cannon attacks the meanor warrant stemmed from a conviction influence). ting driving that under circumstance the murder was com- The State first, argues, mitted to the facts of the prosecu- avoid lawful arrest or murder sup alone this tion. Cannon circumstance. Also aggravating claims porting finding escapade is Cannon’s subjective circumstance is and undefined. the Paden night household the same as the complains anyone He accused of mur- Hawley leaving murder. After dering Check potential previous witness to a felo- closing, Mate at LaFevers and Cannon ny subject went penalty to the death if evidence Anna, to Anna Paden’s eight home. her shows the defendant attempt made ies, lived with teenage granddaughter her identity. conceal inexplicably ig- Tammy. Cannon and LaFevers broke into controlling authority nores requires which the house and although entered a bedroom predicate separate crime from the murder Tammy shooting They got at them. for which a defendant seeks to avoid arrest.58 gun away Tammy, Anna, from beat her and subjective This circumstance is neither nor may attempted have some form of sexual standardless. Tammy, dragged Tammy assault on from the summarize, To aggrava the three kidnap house and tried to leaving. her before ting circumstances found in this case are They gun, took the which was found Can constitutional. supports jury’s Evidence non’s Tammy house at his arrest. badly finding that especially the murder was hei beaten about the face. Both women testified nous, atrocious or cruel. stage; the second identify neither could argues XIII Cannon Tammy Cannon but had identified LaFevers the evidence was insufficient to warrant a previously testimony and her indicated that finding of continuing beyond threat a reason- (defense Cannon was her main assailant able provides doubt. Cannon an excellent valiantly counsel tried unsuccessfully but to precis of penalty jurispru- identification). this Court’s death challenge this Cannon had dence. He notes that the most common pled charges to arising from this incident State, (Okl.Cr.1991), 55. 816 P.2d consistently disagreed 59. I have with the use of Battenfield denied, rt. unadjudicated support ce continuing offenses to 117 L.Ed.2d 632 See, aggravating threat e.g., circumstance. Pax (Okl.Cr.1993). ton v. 867 P.2d 1309 (Okl.Cr. 56. Pickens v. 1994). ground appear This does not to withstand complains analysis. aggravator Cannon nowhere close that insufficient No case in which the supports aggravating evidence this upheld circumstance. attempted for any this reason has Hawley Evidence showed that was beaten in her explanation why sort of any as to the facts of home, robbed, kidnapped, kept in the trunk of crime, particular brutal, gruesome however or car, car, dragged her again, from the beaten set likely make it more that defendant will com- fire, burning, moved 10 to 15 feet while crimes, mit future and it is difficult to fashion a approximately lived for five more hours. This argument convincing justifying speculation such supported by ample circumstance is evidence. extrapolation or from acts alone. 58. Barnett v. 1993); Mitchell, 1208; McGregor, 884 P.2d at 885 P.2d at 1385. trial, plea supporting

before this but this was not com- evidence. Sufficient evidence ex- jury technically they municated to the so support jury’s isted to finding of this have viewed aggravating would this as evidence of unad- circumstance.

judicated only This crimes. evidence not Proposition Cannon claims in XVI that his contemporaneous startlingly shows simi- death imposed sentence was under the influ- acts, lar criminal but casts doubt on Cannon’s passion, prejudice, ence of and other arbi- evidence that he was remorseful after the trary lengthy factors. After a discussion of Hawley addition, by crimes. In Cannon’s qualitative punishment difference in statement, picked up Hawley own he after corresponding required meticulous standard escaped prevent calling she to her from cases, in capital specifically Cannon com- help. sup- The Paden incident alone could plains very of a says few items he resulted in port jury’s finding aggravating of this arbitrary an sentence. circumstance. During stage closing second ar argues Proposition Cannon gument that, jury just the State told the like that XIV there was insufficient evidence officers, investigating arresting support finding the murder was court, defense counsel and the trial prevent committed avoid or a lawful arrest duty was here to do its to decide the prosecution. again ignores Cannon this case. Cannon attempt claims this was an controlling authority, citing Court’s instead jury’s responsibility. minimize the While it pres several Florida cases. The must State would be error if up the State had counted showing ent beyond evidence a reasonable the amount of person spent time each doing clearly separate predicate doubt felonies for “duty”, this may Court has held the State sought which Cannon to avoid detection.61 everybody note that special involved has a may require This a determination of the de proceedings.63 role Elsewhere in ar mind, may fendant’s state of which in be gument, emphasized the State that the ferred from circumstantial evidence.62 Can would be authorized to consider the death non said that LaFevers twice told him “she it, penalty, required impose not and that it they saw us” and once “get said had to rid of would argument be their decision. This clearly her”. These statements referred to not error and the comments did not induce predicate burglary crimes of and rob arbitrary an sentence. addition, bery. Ryan witness heard the greatly blond man resembling say complains stage several first “No, Hawley, you’re going support with us” as she errors also proposition. this He first dragged complains to her car. argues irregularities that voir dire amounted virtually felony all provide murders will arbitrary inject- to an abuse of discretion and supporting aggravating facts arbitrary circum ed factors into the death sentence. stance, suggests that this evidence mere Cannon’s voir dire claims are discussed ly provides theory mur motive for the XVI and the record does not true, complaint, der. Cannon’s first does this assertion. Cannon claims that suggest illegally injected the circumstance is stan- the use of obtained evidence overly arbitrary dardless or broad. If carried proceedings. to its an factor in the As conclusion, logical X, complaint Propositions second in discussed IX and all the preclude would charging legally the State from ever charge evidence was obtained and this aggravating per more than one argu- circumstance must fail. Cannon recharacterizes his crime, II, present Propositions III, as each circumstance must be ments in and IV as potential theory ed as a stating respective stage of the case with that those in- first Barnett, 104, part grounds, 853 P.2d at 233. on other 455 U.S. 102 S.Ct. 869, (1982). 71 L.Ed.2d 1 1385; McGregor, Rojem, 885 P.2d at 753 P.2d 368; State, 1206, Smith v. 737 P.2d 1216 1124, (Okl.Cr.1993), v. 846 P.2d 1140 63. Woodruff denied, (Okl.Cr.), 959, cert. 484 U.S. 108 S.Ct. - denied, -, t. U.S. 114 S.Ct. cer 358, (1987); Eddings L.Ed.2d 98 383 v. 349, 126 L.Ed.2d 313 1159, (Okl.Cr.1980), reversed in LUMPKIN, Judge, concurring of in structions lowered the State’s burden result. arguments proof. These were also without case, I in in concur the result reached this Finally points judge’s merit. he to the trial generally analysis present- concur in tape refusal to allow the of Cannon’s confes- However, I ed. am concerned with dicta and replayed during stage sion to be first deliber- spread throughout comments which have no XI, As discussed in ations. place published opinion. in a I shall address not error. As none claims of Cannon’s they presented. in them the order are error, that, individually constituted his claim agree subject I we should address the of cumulatively, they injected arbitrary fac- arrest; Appellant perceives illegal what as an trial tors into the must fail. however, necessarily agree I do not with presented in statements footnote 6. While I MANDATORY SENTENCE REVIEW always insightful analysis my admire the of colleague, I agree tendency do not with the 21 O.S.Supp. accordance with in to insert footnotes statements which (1) 1985, 701.13(C), § we must determine body opinion. should be in the of the While imposed whether the sentence of death was exceptions, there are statements footnotes passion, prejudice, under the influence of or dicta, generally regarded having are as no (2) factor, any arbitrary other whether Witt, precedential Wainwright value. See supports jury’s finding the evidence of 412, 844, 469 U.S. 105 S.Ct. aggravating circumstances. (1985) (In determining L.Ed.2d 841 state record, Upon say review the we cannot dicta, ments in footnote to be Court notes it imposed the sentence of death was because rejected language had on other occasions by passion, prejudice, was influenced from a controlling.”); footnote as “not arbitrary contrary or other factor to 21 Sanchez, 130, 141-42, McDaniel v. 701.13(C). O.S.Supp.1987, § 2224, 2231-32, 101 S.Ct. 68 L.Ed.2d 724 (1981); Morgan, Henderson v. U.S. The was instructed on and found the 2253, 2260, 49 L.Ed.2d 108 aggravating existence of three circumstances: (1976) (1) (White, J., Stewart, heinous, with whom Black especially the murder was atro- mun, Powell, (2) JJ., cious, cruel; join, concurring); probability or there was a McCrary v. that Cannon would commit criminal acts of 1974). Accordingly, I view the statements continuing violence that would constitute a (3) footnote 6 as dicta. society; threat the murder was purpose avoiding committed for the opinion overruling Is the what is left of preventing prosecution. a lawful arrest or (Okl.Cr.1972) Schorr 499 P.2d 450 Upon record, our review of the we find the problem footnote 13? I doing have no inso factually sentence of death to be substantiat- fact, body opinion; I would appropriate. ed and encourage problem it. The lies with the vague language surrounding the discussion of Judgments The and Sentences of the Dis- it, If going the ease. we are to overrule let’s County trict Court of Oklahoma for First explicitly do so. Degree Degree Murder and Third Arson are Judgments AFFIRMED. The and Sen-' dealing The discussion with consent tences of the District Court of Oklahoma search is than also less clear. The issue is County Degree Rape for First and Forcible valid, whether a consent to search is not to Sodomy Anal are REVERSED with instruc- right whether a defendant had a to a search tions to DISMISS. agree warrant. I with the Court the consent

to the search in this case was valid. STRUBHAR, JJ., LANE and concur. (at 98) opinion The ends the discussion of peremptory challenges enigmatic with this LUMPKIN, J., concurs in result. comment: “Had trial in the court erred re- JOHNSON, P.J., cause, part fusing concurs in and to excuse Hooks for Cannon’s part. dissents in requested remedy would have been unavail- JOHNSON, opinion trying say Presiding if Judge, concurring able.” Is the even by part dissenting part. there was error the court the statute in and in does granting not allow the of more than nine I in findings would concur the of the Court peremptory challenges? It is not I clear and affirming Degree the First Murder and holding cannot accede to the comment as a in Degree dissent, I Third Arson. would how- the case. ever, from the reversal to dismiss the First Degree Rape Sodomy. and Forcible Anal I Perhaps language in the most volatile find that there was sufficient evidence to opinion discussing lies in footnote the use appellant’s corroborate the statements as it murder sub particular of the facts of the charges. relates the two I find that there judice as the sole basis to con- corroborating green night- evidence of a tinuing aggravating threat circumstance. Is gown that was found where it was stated it opinion attempting to overrule cases found, would be that same was turned inside previously holding? which have set out this hurry. out as it had been in moved I reasoning faulty, If the is we should in the would also find that corroborating there was body opinion legal of the discuss the reason green evidence nightgown, relative to the why faulty explicitly it is and overrule cases appellant wearing had stated she was faulty, holding; so if it is not there is no need green nightgown, enough and this should be stirring up in settled waters. Stare decisis presume pants were hers. analysis dictates the of this issue and the I also find that there was sufficient evi- validity aggravator of the to the facts of this sodomy. anal dence The forensic ex- case. The dicta in this footnote serves no pert found, testified that no semen was but purpose except useful to be cited countless also this is presume common. You cannot appellants. times future person raped just that the was not due to the agree lack of I semen. the evidence was why I am uncertain there is a discussion weak, uphold jury’s but would verdict. 107) (opinion regarding improper closing argument prosecution where the told the ORDER DENYING PETITION FOR jury duty deciding it was there to do its in REHEARING AND DIRECTING officers, (just lawyers, this case like the ISSUANCE OF MANDATE had). everyone Appellant else claimed Eugene by jury Randall Cannon was tried attempt jury’s this was an to minimize the before the Honorable Thomas C. in Smith responsibility. opinion The then states: County, the District Court of OHahoma “While it would be error if the State had Case No. CRF-85-3254. He was convicted up person counted the amount of time each Degree Aforethought of First Malice Murder spent doing ‘duty,’ this Court has O.S.1981, 701.7, § violation of 21 Third might held-” This be a correct state- O.S.1981, Degree Arson in violation of ment, however, did not do prosecution 1403(A), § Degree Rape First in violation of Accordingly, opinion that in this case. O.S.1981, 1114, § Anal Forcible Sod- again addressing once an which issue is not omy § O.S.Supp.1982, violation of 21 enough before the Court. haveWe wood to trial, stage At the conclusion the first us; saw which is in front of we need not look guilty. During returned a verdict of Appellate opin- elsewhere for more. court 1) sentencing, found the murder was adjudicate ions should the issues before the 2) heinous, atrocious, cruel; especially court based on the facts the case. It is probability there was a that Cannon would through adjudication clear of the issues and commit criminal acts of violence that would analysis holding provides of the Court’s continuing society; constitute a threat to appropriate guidance judges to trial 3) purpose for the murder was of avoid- practitioners. They guess should not have to ing prosecution. arrest or Cannon was sen- why. at what we have decided and conviction, tenced to death for the murder

Otherwise, agree arson, years I with the excellent anal- forty years ten incarceration for ysis presented opinion. rape, twenty years sodomy. in the for Strubhar, 8, 1995,

By September published opin- its Reta M. /s/ ion, RETA M. this Court affirmed Cannon’s convictions STRUBHAR arson, Judge and sentences for murder and rape sodomy convictions for reversed the is now

with instructions dismiss.1 Cannon Rehearing, on a Petition before the Court 3.14, Rule Rules the Court Criminal of 18, Appeals, O.S.Supp.1995, App. Ch. Ac- 3.14, cording Rehearing to Rule Petition for only: shall be filed for two reasons (1) question That some decisive of the case McCARTY, Appellant, Curtis Edward duly by attorney submitted Court, record has been overlooked Oklahoma, Appellee. STATE of 2) That the decision is in conflict with an No. F-89-1057. express controlling statute or decision to Appeals Court of Criminal of Oklahoma. which the attention of this Court was not argu- called either in or in the brief oral Sept. ment. proposition in

Cannon raises one his Peti- Rehearing tion for which fails to meet the Accordingly, criteria set forth in Rule 3.14. proposition will not be addressed.2 IT IS THE THEREFORE ORDER OF THE COURT that the Petition for Rehear- ing is DENIED. The Clerk of the Court is

directed to issue the mandate forthwith.

IT IS SO ORDERED. WITNESS OUR AND THE HANDS day SEAL OF THIS COURT this 6th October, 1995. Johnson, Charles A. /s/ CHARLES A. JOHNSON Presiding Judge Chapel, Charles S. /s/ CHARLES S. CHAPEL Vice-Presiding Judge Gary Lumpkin, L. /s/

GARY L. LUMPKIN Judge Lane, F. James /s/ JAMES F. LANE

Judge (Okl.Cr. Sep- maining California, Cannon v. 66 O.B.J. Chapman verdicts. 8, 1995). tember (1967); U.S. 87 S.Ct. 17 L.Ed.2d 705 Texas, Satterwhite v. beyond 2. This Court determined a reasonable 100 L.Ed.2d 284 doubt that Cannon’s erroneous convictions for rape sodomy did not contribute to the re- notes aiding abetting.29 The re- cipal” and commission the instruction recommends clearly set forth the de- maining instructions dispute over wheth- in which there is a cases abandonment, proof, burden of fense intervening an conduct or er a defendant’s intent. and the definition of criminal death, and advises agency a victim’s caused the defen- given it not in cases where malice mur be claims that the death but dispute the cause of dant does told the that Cannon der instructions crime. Where not commit the and that claims he did caused the victim’s death must have perpetrator of the the sole abetting told the defendant was aiding instructions has held the instruction guilty if did not crime this Court could be he them Cannon of discretion where says “it is not not an abuse actually the acts. He commit that, malice as an element of aiding and also instructed leap” conclude that an giant murder, caused they find the defendant must malice murder re abetting conviction for case, subsequent In a contrary, the victim’s death.31 only quired general intent. On the defen- was error where aiding the instruction leap epic proportions. The this is a of death but dispute the cause in a dant did not abetting cannot be read instructions (Okl.Cr.), 1986). cert. P.2d 676 31. Sellers 29. Fritz denied, 116 L.Ed.2d 30. OUJI-CR 426.

Notes

notes to principal, be a Cannon, convicted as he must either by Evidence showed his own ad- mission, have or committed crimes have aided and participat- drank with LaFevers and burglary, robbery, by procuring, aiding, assisting, abetted them kidnapping. and ed commission, Arguing advising, encouraging that the could have this or their found sufficient, words,' gestures, Only conduct recasts slight the in- or acts.36 participation person’s struction’s definition of causation as “threat- change is needed to a life”, ening dangerous suggests to and spectator status from mere to aider and abet- instruction states that conduct was “a sub- tor.37 bringing Hawley’s stantial factor” in about taped his written statement and confes- death, required. no intent was This is sim- sion Cannon admitted: ply says. not what the instruction The evi- — 24, 1985, Loyd On June he and La- participation dence Cannon’s in the lesser together Fevers drinking were at crimes did not show conduct which “a was They Check Mate Club. left the club with bringing substantial factor in about the death friend, Roy Goolsby. a LaFevers was dangerous and and [was] threatens or de- driving his Camaro. LaFevers wrecked stroys life.” his car somewhere around 10th and Merid- suggests giving Case law Instruction 17 Portland, ian or and drove it side may have been error which neither went to street in a residential area. The three the foundation of case nor affected Can- car Goolsby abandoned the left. Sadler, rights. non’s substantial As in — Cannon went with LaFevers to steal a facts of this case render error harmless. Sellers, vehicle. As instructions taken as accurately — applicable whole state the law. Cannon and LaFevers went to Haw- error, do not plain We find proposi- ley’s house. LaFevers beat kicked or tion is denied. Hawley the door. When refused let them in glass LaFevers broke the argues in Proposition V tried to kick in the door. prove evidence insufficient he — a principal charged, to the crimes even Cannon went with LaFevers an aider backyard. Hawley as and abettor. This away Court will not getting where, disturb conviction reviewing through yard. caught LaFevers Haw- light evidence most ley favorable to the her took inside. State, (Okl.Cr.1993). victim); McBrain, 32. Sadler v. 846 P.2d 377 one co-defendant stabbed 763 (McBrain P.2d at finding 124-125 talked about State, 202, Spuehler (Okl. 33. v. P.2d 709 203-204 girls, knowing drove victim to scene co-defen Cr.1985). rape dants screaming, intended while victim was victim, rape gave watched co-defendants false State, (Okl.Cr. 34. Maxwellv. 742 P.2d 1169 officers); State, name to Sartin v. 637 P.2d 1987). (Okl.Cr.1981) (Sartin 899 warned co-defendant armed, Hackney (Okl.Cr. home, 874 P.2d yanked 814 victim was entered victim's 1994). cord, fled, phone disposed out weapon, purse); had bullets in Smith v. 36. McBrain v. P.2d 124 (Okl.Cr. 1982) (Smith gun held on victim 1988); Anglin 92 Okla.Crim. from approached, distance while co-defendant P.2d 272 home, pointed entered victim's items out steal). (co-defendants Hackney, testi Hackney fied that ordered them to kill victim and

Case Details

Case Name: Cannon v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Oct 6, 1995

Citation: 904 P.2d 89

Docket Number: F-93-526

Court Abbreviation: Okla. Crim. App.