*1 jury twelve found have should penalty. agree face the death I with the
verdict as to death in both cases. appellate judge uphold
An is sworn to Therefore, must, law,
law. I under the con- finely opinion Judge
cur in the written great I
Strubhar. do so with reluctance. gives law except no choice to this Court
to do what we have done and for tome
specially concur herein.
Had this found that the murder was purpose avoiding
committed for the a law-
ful arrest the defendant would be
continuing society, threat I certainly would However, Appellant’s
affirm death sentence. jury’s creating great decision as risk just
of death to more person than one cannot upheld legally. HAIN, Appellant,
Scott Allen Oklahoma, Appellee.
STATE of
No. F-94 — 1196.
Court of Appeals Criminal of Oklahoma.
June
H31 *3 H33 *5 H85 OPINION LUMPKIN, Judge. Hain tried Scott Allen
jury and convicted of two counts of Murder
(21 O.S.1981, 701.7.),
Degree
§
in the First
(21 O.S.1981,
Kidnapping
two counts of
741),
Robbery
§
two
with a
counts of
Fire-
(21 O.S.1981, 801),
§
arm
one count
Third
(21
1403),
O.S.1981, §
Degree Arson
and two
(21
Larceny
counts of
Automobile
of an
O.S.
1981, 1720),
CRF-87-240,
Case No.
County.
District Court of
In Hain v.
Creek
Appellant was found and the murders of Laura Lee Sanders Mi- Houghton. of this crime chael The facts are Hain, in set forth at 746-747. PRE-TRIAL ISSUES Appel- fourth of error In his court erred in overrul- lant contends the trial change his motion a of venue and his for a pre- In prosecutor. motion to recuse support hearing, Appellant offered trial venue, change for certain his motion a Hall, Tulsa, appellant, John for Thomas political submitted advertisements appeal. trial and on newspapers prosecutor published judicial general circulation district. Tulsa, Rogers, appel- James Michael for objec- Appellant found advertisements lant, at trial. for and co-de- referring tionable himself McClain, Attorney, Sapulpa, Lantz District stating fendant Lambert as “notorious” State, for at trial. prosecutor had obtained murder that Edmondson, Attorney on and his co-defen- Appellant W.A convictions Drew General Whittaker, Oklahoma, dant and that to death in Assistant the victims burned Robert addition, State, Appellant General, City, trunk Attorney Oklahoma of a car. for newspaper a letter a local written appeal. on offered by the mother of one stating of the victims only plain We review for error and prosecutor that the analysis begins should be find re-elected to none. Our with the re- investigation, his office prose- presumption because his buttable that the accused can cution a fair responsible county and conviction of those receive trial in which the her child’s death. offense occurred and the of persua burden accused, sion is on the who must show actual Appellant presented also an affidavit from exposure publicity resulting preju investigator defense which stated that dice clear convincing evidence. Id. at persons three more sign refused to an 62; State, Shultz 811 P.2d stating Appellant affidavit get could not (Okl.Cr.1991). County. a fair trial in Creek Merely showing pre-trial pub charged there was a conspiracy of silence in licity was adverse to him is not enough. community prevented which him from (Okl.Cr Bear v. 762 P.2d obtaining statutorily required affidavits. .1988). In cases going to trial A attorney local criminal defense testified denied, change of venue has been the rele opinion that in get could not inquiry vant on appeal is whether the ac jurisdiction. fair trial in that jurors cused received a fair trial from who Despite Appellant’s to supply failure lay any personal could aside opinions and statutorily required affidavits, the trial court base a verdict on the evidence. Braun v. argument heard and ruled that cert. had pre-trial publicity failed to show the — denied prevent so extensive as to impaneling L.Ed.2d 559 persua burden of impartial jurors. agreed The trial court sion still lies with the accused to show during re-examine the issue voir dire if nec- convincing clear and evidence the minds of essary. Subsequently, the motion was rear- county the inhabitants of the in which the gued by Appellant beginning at the of voir pending prejudiced against cause is are so ruling dire. The court reserved until after impartial defendant that fair and trial voir dire at which time the motion was de- cannot be held therein. Id. nied. appeal, Now on Appellant argues that *7 apply two-pronged We a test above, in change addition to the a of venue determine whether a process due violation general pre-trial warranted because of juror occurred as a result of knowledge and publicity prosecutor’s and the involvement in pre-trial Prejudice publicity. may pre be campaign a judges to unseat certain of The pattern sumed where the fact reveals that of Appeals Oklahoma Court Criminal because media, the influence of the news in either remanding of the for this case new sen- community large at or in the courtroom it tencing proceedings. self, pervaded Bear, proceeding. 762 key P.2d at 953. The to this ap standard O.S.1981, 561, provides Title that pears to be proceedings whether against request a change for a of venue must be “entirely the accused lacking in the accompanied by affidavits atof least three solemnity sobriety and to which a defendant persons credible county. who reside said system is entitled a that any subscribes to comply failed to statutory with this rejects notion of fairness and the verdict of requirement. He support offers no for his Braun, the mob.” at quoting Murphy v. charge conspiracy that a prevented of silence Florida, 794, 799, U.S. obtaining him from requisite affidavits. (1975). 44 L.Ed.2d find unsupported allegations We insuffi cient statutory to excuse him from compli Saffle, 34 F.3d Stafford Consequently, ance. the issue has (10th.Cir.1994) been the Tenth Circuit Court waived properly and therefore not before Appeals said that order establish the Court. Brown v. P.2d presumption of prejudice, the defendant — (Okl.Cr.), cert. denied 115 must show “an irrepressibly hostile attitude 517, 130 L.Ed.2d pervaded community.” If the facts are
H37 any put pre- a or she could aside give rise to whether he egregious to sufficiently not opinions and totality of the notions or decide prejudice, conceived presumption solely present- to determine on the law and evidence be examined case circumstances -will responded in the during a trial which trial. Each received ed the accused whether Braun, jury fundamentally specific fair. at 792-93. affirmative. No member by Appellant, dire at panel challenged focus on the voir has should been This review jurors, voir dire appeal, of the individual on as unable set aside statements trial or now statistics, community atmosphere as preconceived review of the rec- notions. Our Id. news media. reflected no sat on the who ord shows individual opinions they could not set aside. expressed present in the case does The record juror expressed Any potential who reserva- attitude irrepressibly “an hostile not reflect ability impar- fair tions about their community” influ or that the pervaded the for cause strick- tial was either dismissed or pervaded pro of the news media ence challenge. peremptory en a any newspa ceeding. do not have While we us, trial there is clippings of the before per repeatedly an ac We have held media itself created a the news no indication is not entitled to who knows cused Ap community in the toward hostile attitude Shultz, nothing the case. 811 P.2d at about Further, Appellant not has asserted pellant. only jurors he is 1330. Rather entitled in the local news any appearing articles fairly impartially his case who can decide factual accounts or that papers were not presented at trial. Id. based on the evidence inflammatory in nature. were invidious Here, suggestion no in the record there is prosecutor’s political advertise jurors Appellant’s punishment on decided not us. But these adver ments do concern and law anything other than the evidence tisements, prior published one month to the Therefore, we presented to them trial. re-trial, ap specifically start of the change court’s of a find the trial denial securing prosecutor for a convic plaud the deny Appellant a fundamental venue did labeling Appellant against Appellant and tion fair ly trial. “notorious”, inflammatory potentially are Appellant’s As for motion to recuse the opinion combined with prejudicial. When find no of the trial prosecutor, we abuse attorney a local defense denying that motion. If court’s discretion trial, potential fair not receive a could prosecutor’s conduct believes the high. presumption prejudice Howev of the Rules Professional was a violation case, er, nothing in present we find in the Conduct, complaint is to file a his recourse “community-wide indicates record which Accord- Bar Association. with the Oklahoma judgment” that has infected other rush to *8 assignment of error is denied. ingly, this for lack of an which have been set aside trials Braun, 1566; jmy. Stafford, at at impartial error, Appellant In his of sixth rarely is in prejudice “Presumed 792-93. arguments addressing the of raises series only and in extreme circumstances.” voked mieonstitutionality imposing the death sen- of Stafford, Appellant has not met his at 1567. persons other under the tence on himself and presumed prejudice. showing of burden argues that Specifically, he age eighteen. of 1) penalty in this ease imposition of the death Therefore, examining totality of the the applies it as under the current statute prejudice, we find for actual circumstances overbroad, arbitrary, vague and juveniles is nothing suggests atmosphere a circus which give constitu- courts it does not the district Any mentality. Id. at lynch 1566. or mob sentencing authority, is cruel and it tional in commu- prejudicial actions the potentially pro- it due punishment and denies unusual into nity large not cross the threshold at did 2) equal statutes protection; the judicial cess and pervade pro- and the the courtroom O.S.1981, § 21 701.9 cre- jurors actually Title 43 and under ceedings. Most of the who juveniles, of case, unconstitutional class ate an jmy had heard of the Appellant’s sat on they arbitrary capricious, and the are and personnel or con- through the media either 3) disproportionate; and penalty is excessive during asked voir dire Each was versations. 1138 killing Appellant, munity. Appellant
the who seventeen asserts such a situation crime, pen- years predisposes old at the time and other assess the of the death class, alty. responds contrary evolving of his is The State the trial court members 4) jurors expressly decency; punishment properly excused those and who standards they relating could not follow proportionality in stated the law of death this case fails the sentencing options analysis. to all the to the available jury- Appellant’s arguments, re- In first two he ap- “current herein it to the statute fers Witherspoon, Supreme juveniles.” statutory only listed plies to His only jurors prospective who Court held O.S.1981, 21 are “43 citations O.S.1507.19 expressed scruples against conscientious Appellant’s § 701.9A.” reference title penalty, automatically death who would statutory not a cite. correct Section is against penalty be ex vote death could in title 1507.19 101 is the Youthful Offender jury panel This cused from for cause. However, any challenges
Act. to the consti- Wainwright modified and clarified tutionality properly of this Act are before not Witt, 412, 424, 105 844, 852, 469 U.S. S.Ct. at this time since was not us sen- Supreme L.Ed.2d 841 wherein the Indeed, under that Act. the Act tenced does proper held the Court standard for determin July take until effect 1996. juror may when exclud be prospective O.S.1991, constitutionality As for the on ed for cause because his or her views 701.9A, capital juror’s punishment the numerous from this State is cases whether Supreme “prevent substantially upheld impair United States Court views would or system punishment capital performance juror our of his indicates duties as a meets constitutional standards. with and his accordance his instructions statutory failed to at has show how the scheme oath.” 469 U.S. at allowing imposition penalty standard, Adopting on death above has Court seventeen-year-olds prospective juror who only required sixteen- commit said a willing provid murder unconstitutional. v. Ken- penalties be consider all the Stanford tucky, 109 S.Ct. and that or ed law he she not be irrevoca (1989) (rejecting argument bly begun. L.Ed.2d 306 an committed before the trial has imposition penalty of the death on indi- Duvall years who viduals were sixteen or seventeen rt. denied 506 U.S. ce they 224, 121 when old committed murder constituted L.Ed.2d punishment cruel unusual violation of case, present In the three out Amendment). Eighth prospective jurors express first twelve called Appellant’s arguments last two were raised ly could not imposing said consider prior appeal. brief in his This Court three, penalty. death Each of Kin- Ms. fully opinion addressed those its issues cade, Hanlon, Ms. Nelson and Ms. said no Hain, affirming the murder convictions. presented case warrant could would by Appel- persuaded 748-49. We are not imposition of the death Their sentence. repetition again argument deny lant’s responses remained upon consistent further previously for the stated. relief reasons questioning defense counsel and the court. *9 responses by pro We find the three these JURY SELECTION ISSUES jurors irrevocably spective show each was error, assignment Appellant In his third against penalty of committed to vote the death on Witherspoon regardless relies the dissent in v. the Illi- of law and that her views nois, 510, 1770, 391 20 capital punishment pre U.S. 88 S.Ct. L.Ed.2d about have would (1968) to argue substantially 776 the of or impaired perfor excusal three vented her jurors prospective opposed juror who were to the in mance as accordance with her penalty right State, death denied him to a the instructions and oath. See v. Romano 368, composed of (Okl.Cr.1993), a fair of the com- cross-section 847 P.2d 377 512 aff'd. 1, 7306-2.1, July 1. O.S.Supp.1994, Renumbered as 10 effective
1139 2004, likely responses in -, 129 1 be more to be candid their L.Ed.2d U.S. (1994). peers Therefore, properly- if and the the trial court were not before their Kineade, Nelson and Ms. press. Ms. excused Ms. jury panel.
Hanlon
the
from
consistently
TMs
has
held
Court
the excusal
these
Appellant’s contention
of
right
is no
to individual voir
there
dire.
jurors
him a
com-
prospective
denied
(Okl.Cr.1994),
State,
537,
Neill v.
P.2d
550
896
of the communi-
posed
fair cross-section
of a
— U.S. -,
rt.
116
denied
S.Ct.
ce
by argument
ty
supported
is
or reference
not
State,
(1996);
Tibbs v.
L.Ed.2d 740
allege
does not
nor
to the record.
1379 (Okl.Cr.1991);
P.2d
Douma v.
actually sitting
those
does the record reflect
(Okl.Cr.1988).
State,
749 P.2d
impose
jury panel
predisposed
on the
Individualvoir dire is a matter of discretion
penalty.
the death
State,
with the trial court. Morrison v.
alleges error in
trial
Appellant also
the
(Okl.Cr.1980).
203, 210
In Neill we
P.2d
jurors
inquire
pursu
of the
court’s failure
stated:
Jury
ant to
Instructions-
Oklahoma Uniform
[although
practice may be
such a
allowed
(OUJI-CR)
Criminal
No. 104.9
discussed
extraordinary
aby
judge,
trial
it is an
Mayes
P.2d
preju-
danger
...
measure
Unless the
of
denied, —
t.
cer
dicing
jurors by exposure
damaging
the
131 L.Ed.2d
In
grave problem
information is a
or some
Mayes,
cited to Duvall
we
served,
purpose
is
special
it
un-
would be
at 630
we modified
last sentence
wherein
likely that
individual voir dire would be
104.9 to read as follows:
OUJI-CR
justified.
of discretion in
We find no abuse
juror,
you
If
find
selected as
that the
allowing
procedure.
not
law
in this case warrants the
and evidence
At trial the State introduced from in the Comstock prior unadjudicated burglary offenses of and Hofford matters and directed rape by Ap- questions instrumentation committed answer on those matters or be pellant against a Ms. rape contempt Comstock and a held of court. When asked sodomy by Appellant against rape committed sodomy about committed
H41
Hofford,
com- vator. Evidence of a defendant’s criminal
Appellant denied
against Ms.
jury’s
history is
to the
determina-
relevant
mission of those offenses.
likely
is
tion as to
the defendant
to
whether
upheld
repeatedly
the ad
This
has
Court
commit future acts of violence
would
unadjudieated crimes
mission of
of
evidence
continuing
society.
a
threat
constitute
a
sentencing stage
capital
of
case.
in the
Paxton,
Having
at 1322.
such evidence for
—
State,
713, 717,
OBJ
P.2d
Allen v.
67
jury’s senténcing
consideration focuses
February
(Okl.Cr.
-, -,
67516
1996 WL
particularized
determination on the
circum-
State,
1309,
1996);
16,
v.
867 P.2d
Paxton
of
and the individual
stances
the offense
of-
—
(Okl.Cr.1993); cert. denied
U.S.
1323
unadjudicat-
fender.
Id. To find the use of
227,
(1994);
Mindful Amendment Self-In violation the Fifth law, this Court its area of the reaffirms error, albeit crimination This consti Clause. unadjudicated may position that offenses be tutional, subject analy to a harmless error during stage the second introduced process it in the trial sis as was an error capital support cir trial itself, affecting the entire not a defect “continuing threat”. Prior ad cumstance of trial. Frederick v. framework of the resulting in judicated convictions for cases 1092, cit felony support separate violent offenses Fulminante, 499 U.S. to Arizona v. felony”. aggravator, “prior violent Howev 113 L.Ed.2d er, proof “continuing aggrava threat” of the explained: we convictions; prior tor is than it much more analysis may [A] .... error surrounding is the the mur harmless circumstances violations just applied to involv- has been constitutional der defendant during the ing trial error which occurs prior and his criminal conduct. convicted to the presentation case be- primary This must is the State “quantitatively “continuing aggra- cause such error can be prove to find the threat” *12 upon Specifically, assessed the context of other evidence the victims’ bodies. he presented in complains order to determine testimony whether about the of the medical beyond its admission a was harmless rea- concerning examiner the external burned contrast, In bodies, sonable doubt.” errors which descriptions condition and the subject analy- cannot be to harmless error by Sapulpa city police scene a officer exemplify are sis those which “structural Sapulpa firefighter among and a who were defects in the constitution of the trial at the Appellant first crime scene. also mechanism.” The Court reasoned that er- challenges the admission of State’s exhibits rors such as absence counsel for a crimi- 36, 37, 39, Appellant Nos. 41A and 41B.2 impartial judge nal defendant and an affect argues in light testimony the victims the entire conduct of trial from the be- inhalation, testimony died from smoke and ginning to the end. “Each of these consti- photos concerning burning charring deprivations tutional is a similar structural any of the bodies was not relevant issue affecting defect the framework within gruesome prejudicial. but was proceeds, which the trial sim- rather than admissibility evidence a resen- ply process an error in the trial itself.” tencing governed by O.S.Supp.1993 trial (citations omitted) 701.10a(4). provides That section that all reviewing improperly When admit testimony a transcript exhibits and of all evidence, appellate simply ted an court re properly other prior admitted in the views the against remainder of the evidence sentencing trial and shall be admissible the defendant to determine whether the ad sentencing proceeding; the new additional improperly mission of the admitted evidence may relevant evidence including admitted beyond was harmless a reasonable doubt. testimony of witnesses who testified at the Fulminante, 111 S.Ct. at previous Here, testimony by trial. the medi- 1265, 113L.Ed.2d at 332. injuries concerning cal examiner suffered victims, by descriptions of the crime present ease, In the evidence of the by scene unadjudicated the first law offenses, enforcement officials as by testified to Ms. and rescue photos workers at the Comstock, Hofford and scene properly Ms. properly the crime scene were admitted unadju- admitted. When asked as about those trial, pre- dicated such evidence had been offenses at admitted denied vious trial. them. The had no more information deciding before it in the existence of the if Even this evidence were not ad “continuing aggravator threat” if Appel than previous trial, mitted in the it is admissible lant had remained silent on the issue. resentencing in the as relevant to establish fact, Appellant’s may denial have been more aggravating circumstances. The to his benefit since his silence could have killing, manner of as evidenced the cir negative invited jury. inferences from the surrounding cumstances the murder and the Appellant’s testimony unadjudicated on the attitude, killer’s is a relevant consideration in any offenses had if impact jury’s little on the establishing circumstance of “continuing consideration of ag- threat” heinous, “especially atrocious or cruel.” Wil Therefore, gravator. we find admission liamson v.
Appellant’s testimony concerning
unadju-
rt.
denied 503 U.S.
ce
beyond
dicated offenses
harmless
reason
(1992);
evidence.
misstating
Appel-
that
ticipation, specifically
may be ex
Relevant
lighted the fire.
lant had
substantially
probative
if its
value is
cluded
preju
danger of unfair
outweighed by the
on Neill v.
appeal, Appellant relies
On
State,
1206, 1210
P.2d
v.
737
dice. Smith
(Okl.Cr.1992);
State,
v.
mund/Tison
companies
Analy-
the underlying killing.
failing
therefore the trial court did not err in
sis must focus on
of
the acts
the defendant
State,
765,
to so instruct. Powell v.
906 P.2d
toward the victim and the level of tension
—
U.S. -,
cert. denied
(citations omitted.)
created.”
(1996).
but
at
struggles for breath.
P.2d
831-832.
perate
surrounding
Other
circumstances
aggravator
support
To
cruelty prong
killing support the mental
continuing threat,
present
must
State
evidence showed
aggravator.
of the
showing the defendant’s behavior
evidence
kidnapped
around
and driven
victims were
society
prob
a threat to
and a
demonstrated
put into
being
rope and
before
bound with
ability that threat would continue to exist
they were inside
the trunk of
car. Once
State,
v.
P.2d
the future. Malone
trunk,
Dr.
set.
Merchant
the fire was
(Okl.Cr.1994).
evaluating
In
whether
time of
victims were alive
testified the
probability
is a
that the defendant will
there
hearing
their
the fire.
testified
commit acts of violence which will constitute
fire
he
burn. We
screams as
watched
society,
continuing
we have held
threat
clearly
Appellant,
inten
all
find
acts
of the callousness
the mur
tional,
mental torture
resulted
extreme
der for which the defendant was convicted
The victims were terrorized
the victims.
supporting
can
evidence.
be considered
period
time
then-
significant
before
State,
877 P.2d
1155-1156
Revilla
anguish
suffered
deaths and
mental
—
(Okl.Cr.1994), cert. denied
beyond
far
neces
the victims was
(1995).
In his
was a knife. This
evidence
unadjudicated crimes and the callous nature
MANDATORY SENTENCE REVIEW
sup-
which the murders were committed
O.S.1991, 701.13(C),
§
Pursuant
to 21
we
port
aggravator
continuing
threat.
(1)
must determine
whether the sentence of
imposed
death was
under the influence of
Appellant directs our attention to ev
passion, prejudice or any
arbitrary
other
fac-
presented by the
idence
defense that he had
tor,
(2)
whether the
supports
evidence
propensity
no
toward violence and at the
jury’s finding
aggravating
of the
circum-
killings
time
acting
he was
under the
O.S.1981,
stances as
in 21
enumerated
of his
influence
co-defendant. We note this
Turning
§
portion
701.12.
to the second
evidence was contradicted
with
State
mandate,
this
found
the existence
evidence of other violent acts committed
(3)
1)
three
circumstances:
Appellant
showing
with
pro
a
knowingly
great
defendant
created
risk of
pensity toward violence which would consti
2)
death to more
person;
than one
the mur-
society.
tute a future threat
We have
heinous,
especially
ders were
atrocious
previously
“society”
held that
used
3)
cruel;
probability
the existence of a
aggravator
apply
prison
can
popu
even
the defendant would commit criminal
acts
Braun,
lation.
two GROSS AND PETROLEUM EXCISE TION 1) presented includes: Mitigating evidence ARKLA, Re- TAX OF INC. PROTEST 2) poor imprisoned; good conduct while garding Payment made Settlement alcoholic, absent, life, including abu- home Company, Marathon Oil sive, argumentative parents, frequent child- 3) moves; drug and alco- introduced hood CORPORATION, NORAM ENERGY 4) father; staying trouble hol use formerly Arkla, Inc., Appellant, school, in- juvenile delinquency, nonviolent father, by his cluding burglary encouraged COMMISSION, OKLAHOMA TAX 5) detention; Hain escapes juvenile from Appellee. drugs time was under the influence No. 85309. crimes; 6) planned the Lambert of the 7) Lambert; Hain afraid of crimes and develop- psychological and Lambert suffered Oklahoma, of Appeals Court problems a result of his childhood
mental as Division 3.No. environment.9 Jan. 1996. considering the miti- thoroughly all After supporting gating the evidence evidence and circumstances, I remaining aggravating in aggravation
conclude that presented.
outweighs mitigating evidence have
I further that the could conclude
imposed penalty the death based on valid without consider-
aggravating circumstances support presented the evidence circumstance,
continuing threat overwhelming as not
invalid evidence was so proceedings. the sub- Given dominate supporting aggra- the valid
stantial evidence circumstance, jury’s it is
vating clear that circum- consideration of the invalid
improper in its play significant role
stance did penalty. Conse- impose the death
decision affirm
quently, I in the decision to concur
Hain’s sentence. - fugitive/cap- finding fear reaction himself in
8.
P.2d
Allen v.
67 O.B.J.
situation; 8)
participation
personal
16, 1996);
lack of
tive
in criminal acts
physically
(Okl.Cr. February