*1 See, i.e., proof. Bechtel den of (Okl.Cr.1992) (instruction necessary defense) Lee v. of self
for defense (instruction (Okl.Cr.1982) nec- P.2d 1046 Here, entrapment).
essary for defense of of excusable appellant raised the defense The trial by reason of accident.
homicide all gave this defense and
court instructed on but number
of the uniform instructions out the burden of
the instruction which sets
proof. HOGAN, Appellant, Eugene
Kenneth Oklahoma, Appellee.
The STATE of
No. F-88-918. Appeals of Oklahoma. of Criminal 8, 1994.
June July Denying Rehearing
Order *2 Clowdus, Box,
Irven R. Diane Oklahoma City, appeal. for at trial and on Atty., Macy, H. Dist. Robert Sandra Sten- saas, Atty., City, Asst. Dist. Oklahoma for at trial. H59 Gen., Atty. be blood. Evidence was collected from the Henry, H. Carol Price Robert scene, knife, Gen., City, including the various hair Dillingham, Atty. Oklahoma Asst. samples, samples with blood together fiber appellee appeal. taken
from around the house. Also was the carpet from the clothing apart- victim’s *3 OPINION ment. JOHNSON, Presiding Judge: Vice gathered at the From evidence scene and appellant, Eugene Hogan, The Kenneth defendant, given the statement the the charged of Murder in the the crime with smoking and defendant deceased were mari- Degree in Court of First the District Okla- 28, juana during January the afternoon of CRF-88-646, County, No. homa Case before The had told his 1988. defendant wife that Gullett, L. District the Honorable James going went to he was to work but the de- Judge. charge was in violation of 21 Such gone. home husband was ceased’s when her O.S.1981, § trial A was held 701.7. that he was The defendant admitted at the guilty the returned a verdict of wherein charged of the with time incident second punishment injec- and set at death lethal County degree burglary in Cleveland and he tion. The trial court sentenced the defen- the asked him to said deceased had steal or the verdict the dant accordance with get her a The defendant he stereo. stated Sentence,
jury. Judgment From and this arguing. refused to do and the two started so perfected appeal the defendant has leaving The defendant stated he was but the Court. deceased his exit and threw a coat refused “no, down, Ken; began shouting rack then STATEMENT OF FACTS no, don’t The he Ken”. defendant indicated appellant'(hereinafter The referred to as quiet ran tried to but she into a the deceased appellant) the defendant or had been friends door, and the which he fi- bathroom locked victim, Stanley, the with Lisa Renee for sev- nally kicked down. years. nature of the eral The exact friend- ship friendship, or the The to the front door and extent of whether deceased ran not, help at disputed yelled or trial. The the defendant kicked the sexual indicated she had received shut to tell de- defendant’s wife door and threatened thirty-five phone thirty calls her mother an between and ceased’s husband and about shortly preceding year; before her mar- from victim abortion she had further, riage. knew The victim’s husband of the defendant stated deceased eye” friendship “got the defendant and the a in her and between then wild look went victim, quite jealous apparently and over kitchen. he tried to leave but He stated the room relationship. the deceased came back into with “pushed” knife at the knife defen- question occurred on The events Janu- cut hand was when he dant. Defendant’s Stanley, the ary George husband intending to fend grabbed knife off the deceased, approxi- home at returned ran wound. then stab The deceased mately 8:15 wife’s p.m. and discovered his going indicating get kitchen that she was twenty- body. She had been stabbed Appellant stated he was another knife. neck, head, chest five times in the and back. going to tell the afraid deceased was through larynx. Her throat been cut had rape her. police that he had tried to police investigation revealed that the The victim, . chased the strug- The defendant then murder scene had clear times, stabbing her numerous which resulted turned gle. The had been over furniture disarranged then around, pictures in her ultimate death. He wedding were knocked room, floor, hoping to create effect of purse was turned thrown on the fight between the deceased and unknown A bathroom door table. over on dinette wounds, bathroom, intruder. He cleaned his left the in. Inside had been kicked hospital apartment, emergen- drove to a large knife butcher the detectives found the cuts. appeared cy room for treatment of sink which and red stains in the Appellant requested was admitted to the Moore Hos- with the defendant’s pital approximately p.m. January regarding 1:45 crime of emergency 1988. The room clerk degree. who proposition first We find this processed the defendant indicated that error to be without merit. The facts make it gave two different stories as to passion theory clear that a heat of is not appeared how the accident occurred and ner- justified. statements, The defendant’s to- vous. The doctor who treated the defendant evidence, gether design with the show a clear gave indicated that the defendant a combina- to effect the victim’s in a death cold and tion of the first two stories and that he calculated manner. well-oriented, appeared to be requested instruction was not appear suffering to be from either an emo- given long argument by after a and heated *4 tional disturbance nor under the influence of in counsel this case. This Court has held drugs. passion heat of alone does not reduce a homi The defendant asked wife his to tell the manslaughter adequate prov cide to without police injured gar-age that he had been in the ocation. We have held the fatal blow or day at home and that he was home all on unpremeditated blows must be result of January spoke 28th. When his wife to the Bollin, passion parte aroused. Ex 3 police, she informed them the defendant was (1910). P. Okl.Cr. The state day not home on the of the murder and that plus ment of the defendant the facts show he had her story. asked to tell them another any that the blows did not come because of A search waiver was obtained and various deceased, part overt acts on the of the but clothing matching description items came because the defendant believed the re day clothes the defendant wore on the of the porting attempted rape, together with his clothing murder were obtained. Tests on the pending burglary charge, in would result splatter pattern a indicated blood on the imprisonment. only The trial court has the flannel shirt front a and defused blood trans- duty degrees to instruct on lesser when re pattern fer pants. on the knee of some sweat quired by State, the evidence. Dunford spoke The defendant with Detective Horn (Okl.Cr.1985); State, Jones v. 3,1988, February and made various state- (Okl.Cr.1982). ments with various inconsistencies before his support There is sufficient evidence to quite confession. The confession was de- case, premeditation in this which includes the tailed toas what occurred on the date of the killing pattern manner of the and the of the homicide. previously wounds. This Court has held the police splatter expert A blood indicated give trial degree court’s decision not to a first large there were amounts of blood at the end supported counter, of the kitchen in front of the sofa part by twenty-five evidence of stab wounds victim, carpet and on the under appellant upon that the inflicted the victim. dining smaller amounts area. The (Okl.Cr.1991), Duvall v. P.2d 621 appeared blood in the bathroom to have been — denied, U.S.-, 224, 121 cert. 113 S.Ct. pattern diluted and the increased volume (1992). L.Ed.2d 161 living the trail as led to the room. From the way blood was on the victim found and the clearly The evidence shows that the death scene, expert evidence at the concluded repeated was the result of a brutal and stab- upright position the victim remained in an bing. began Evidence shows that the attack portion stabbing. of the The evi- kitchen, in the went from there to the bath- stabbing dence also indicated that the initial room, finally living room where occurred in the kitchen with the final blows the victim died. The defendant stated he coming living room area. putting attempting on his coat and killing. leave the scene of this brutal Howev-
PROPOSITIONS OF ERROR er, scene, leaving instead of he followed First, trial states the the deceased into the kitchen from which refusing point bloody court erred in to instruct the trail to the ultimate death
H61 has that the has defendant not shown evidence reveals defendant ensued. This pas- clearly acting out of a acted in bad faith. The destruction not heat sion, through murder. premeditated occurred inadvertence Therefore, we no error. not bad faith. find proposition
The second
of error
to instruct on
the trial court’s failure
Next,
there
appellant contends that
voluntary intoxication. The de
defense of
in failing
error
to sustain the defendant’s
voluntary
has
used
intoxication
been
fense
prevent
from
motion
limine to
the State
intent
a lack of criminal
to commit
show
contending
committed murder
defendant
thus
such offense to
murder and
reduce
attempted
prosecution
arrest
avoid
P.2d 1251
manslaughter.
James v.
rape.
It should be noted that
this is
(Okl.Cr.1982).
the instruction can be
Before
clear
other crimes evidence.
evidence is
given,
that rais
evidence must be introduced
statement,
defendant,
in his
own
person’s ability
es a
as to a
reasonable doubt
report believed that the deceased would
prerequisite intent.
to form the
Norman
attempted rape.
prop
the State
(OM.Cr.1982).
The evi
argued
erly
belief
case
not warrant such an
dence
does
might
report
would made which
be
Although appellant
instruction.
claimed
State, in this
for the murder. The
motive
marijuana,
smoking
this did not
have been
instance,
free
right
would have a liberal
*5
ability
to
to
doubt as
raise
reasonable
McCaulley v.
speech as to such motive.
Dr.
testified that she did
form intent.
Self
(Okl.Cr.1988).
State,
P.2d 1124
There
750
nor
not think the defendant was intoxicated
fore,
proposition
find no merit to this
we
therefore,
drugs;
the influence of
under
error.
was not
warranted.
Appellant’s
proposition is the
next
proposition
The
of error is
fifth
failing
strike
Bill of
court erred
to
improperly
appellant’s
commented on
State
thereby
depriving
Particulars
coun
right to silence. The law is clear that
fully present
to
his defense
opportunity
person’s
comment on
silence.
sel cannot
drug testing
by
of the State to obtain
failure
California,
S.Ct.
v.
380 U.S.
85
Griffin
agreed.
blood
of deceased’s
as
State had
(1965).
1229,
Defendant for eleventh This Court has examined the com prosecutorial miscon prosecutor error indicates tion of ments made and taken repeated questionable. instances of misconduct duct due isolation of these could be causing us, prejudice to de throughout trial must Supreme As the Court has told we separate try perspective will these based proper fendant. We in a based look these stage propo upon first and second since upon the entire trial. United States spans the trial. Defendant con Young, supra. sition entire have at the We also looked stage error, is, trial that in the first you tends as invited that when look error sides, prosecutor improper injecting himself explains at the comments both it position jurors why prosecution and the into deceased’s sometimes made husband, opin expressing personal they also upon make. comments that Based ion, review, error, commenting any, on the conduct defense feel that the if our we killing saying counsel and he wished the oc therefore invited. Teafatiller (Okl.Cr.1987). twinkling eye. of an We have curred do not find P.2d 1009 We these context and due prosecutorial examined comments matter. misconduct confessed, Therefore, fact that the defendant had proposition is without merit. preju cannot find that these comments we SENTENCE MANDATORY REVIEW rendering a verdict into
diced *7 Therefore, guilty. we find no error. must, pro under the This Court 701.13, § deter stage closing O.S.Supp.1985, visions of 21 it relates to the second As (1) (1) imposed the following noted: mine whether sentence was argument, the items are prejudice passion, or Stanley girl references to under the influence calling a little and (2) factor, size; (2) align arbitrary and whether attempting to other her small finding of Attorney police; supports the the statuto jury and evidence with District (4) counsel; (3) ry aggravating The facts as to circumstance. about defense dis- comments evidence; (5) aggravating Hogan’s supporting the circum counting mitigating evidence remorse; (6) abundantly referring The death itself stances is clear. Hogan’s lack of exceedingly gruesome. There clear prison Stanley was Hogan will in while life lead (7) stabbings struggle, advising of a continued grave”; in her evidence “lies cold (8) lasting. episode long appealing and a criminal Hogan again; kill and for will his clearly The tried cover of these com- defendant sympathy the victim. Most crime. It is clear that by tracks to the objected to defense counsel. ments were true, upright position in as the victim remained an of these comments were Some deceased, stabbing. by during part invited least of the which was size of the hap fully of what was argument. The not- the victim was aware counsel’s State defense clearly impending fate. This good pening do and her past acts not ed the defendant’s espe aggravating circumstance of capable today”. shows the outweigh “he’s This what heinous, cially cruel. The Court objection at atrocious or met with comment has reviewed the evidence herein preventing as set forth or prosecution. lawful arrest or propositions under the of error and we do returning The on the of their verdict not find that imposed the sentence was heinous, under only aggravator found atro- passion, prejudice, the influence of or other cious or cruel. arbitrary factor, determining factor. In clearly The facts show the crime was we have reviewed all of the facts and the perpetrated in a especially manner that was in evidence the case. heinous, cruel, further, atrocious The in represented this trial was aggrava- review of this matter shows that the exceedingly competent criminal de- ting clearly outweighed factor mitigating representation fense team. Their was more evidence. adequate than you when consider the over- whelming confronting attorneys. evidence DECISION mitigation trial, In the stage of this the de- finding by The that the defendant put fense on nine witnesses who testified to Eugene Hogan Kenneth guilty the fact that the defendant happy had a murder, degree, crime of first is therefore family, children, showed attention to his AFFIRMED and in accordance with the loving was a father. The defense showed the jury’s punishment verdict that set at death father, defendant acted like a volunteered to injection, lethal the verdict AF- helper jail abe when incarcerated and FIRMED. worked with a minister while he was incar- cerated, money members, family had lent LUMPKIN, P.J., and LANE and good and was a worker. There was testimo- STRUBHAR, JJ., concur. ny the person, defendant was not a violent gift painted as a he had even a house as CHAPEL, J., dissents. surprise family for a Testimony member. CHAPEL, Judge, dissenting: further showed the defendant was active in church, and several witnesses testified I find that the trial court committed re- the defendant’s life saving. was worth Even versible error when it failed to instruct the this, jury weighing with mitigating jury on the lesser-included offense Man- evidence aggravating versus the slaughter Degree. the First For that aggravator prevail found the and found reason, Hogan’s Judgment and Sentence imposed penalty. the death should be reversed and remanded for a new addition, trial. I appears It clear find that the ample that there is trial court evi- allowing erred in jury’s finding. dence for the only pas- introduce evi- unadjudicated dence of prejudice sion or would be offenses remarks made stage prove second of trial attorney. aggravating the State’s These have been ana- lyzed continuing circumstance of although questionable above threat. For these reasons, instances, I dissent. when looked at its full context, we do not find regard. error *8 trial, Hogan At requested be in- clearly support The facts the factor as it structed on the lesser-included offense of statutory aggravating relates to the circum- Manslaughter in Degree. Hogan the First stance. It is clear from the evidence that contends his account of the murder of Lisa there were numerous stab wounds and that Stanley, confession, as in contained his war- fully the deceased period was aware for some ranted such an instruction. After extensive prior was, of time to her death that her death argument by trial counsel and the district fact, in clearly imminent. This sustains the attorney, the trial provide court refused to finding especially heinous, of atrocious or the instructions on the lesser-included of- cruel. however, Curiously, fense. the trial court State, instance, provide tried the case did with in- self-defense (1) aggravating on three especially factors: apparently structions based on the evidence heinous, (2) cruel; continuing Hogan’s atrocious or Hogan’s confession that hand was (3) society; threat purpose avoiding and severely of cut may and that the victim have
H65 opinion, Stanley by stabbing her with the knife my In killed inflicted that wound.1 cut requested had used to him. provide the she refusal to trial court’s the lesser-ineluded offense of instructions on confession, During Hogan his maintained error. manslaughter constitutes reversible Stanley. hurt he not mean to In that describing Hogan stabbing, spoke instruct the The trial court should person saying stabbing “It was her and third every of degree homicide where there 4) (App.Br.Ex. I him.” A at stop couldn’t justifying an instruction on evidence Hogan that he did not realize he had stated offense. See Fowler v. the lesser-ineluded day. Stanley until the next killed State, 580, (Okl.Cr.1989), P.2d 585 cert. 779 instruction, support manslaughter To a denied, 1060, 1587, 110 108 494 U.S. S.Ct. suggest the act done in evidence must State, (1990); v. Lamb 767 P.2d L.Ed.2d 775 Oklahoma, pas In passion. the heat (OM.Cr.1988); State, 700 P.2d Lee v. 887 great must the mind sion be so as render (Okl.Cr.1985). 1017, a there is 1019 When “‘incapable forming design a to effect as to whether the instruction is war doubt 371, State, ...’” Allen v. 821 P.2d death ranted, the trial court should resolve Scott, (Okl.Cr.1991); LaFave & Substantive giving the instruction. doubt in favor § 7.10. The elements of heat Criminal Law (Okl.Cr. State, v. P.2d Jones (1) (2) provocation; passion adequate are: (Okl.Cr. 1982); Tarter fear, terror, a passion or emotion such as 1961). (3) resentment; rage anger, homicide oc Degree Manslaughter in the First is de- passion curred while the still existed and “perpetrated fined as a homicide without pas opportunity for the before reasonable death, design in a to effect heat (4) cool; sion to a causal connection manner, in a and unusual passion, but cruel passion provocation, and homi between dangerous weapon; of a unless or means Allen, cide. at 374. See Oklahoma as is committed under such circumstances it Jury Uniform Instructions-CR 456. justifiable excusable or homi- constituted aggression by Personal violence or the de- 711(2). O.S.1981, § To warrant cide.” may sufficiently ceased of nature be violent Hogan’s manslaughter instructions confes- provocation. general “It is the rule sufficient reasonably suggest he committed sion must passion resulting fright from or terror passion and in the heat of with- the murder may be sufficient to reduce homicide from an intent to kill. out manslaughter killing and such a murder may closely killing akin to a in self-de- key against Hogan The State’s fense.” Wood v. it is his this confession confession (Okl.Cr.1971). may A homicide be reduced provides “some evidence” sufficient murder to when de- from manslaughter instruction. In his warrant great was in dan- “believed that he fendant Hogan that after he and confession stated ger, warranted such even if he Stanley argued and after he kicked acting slayer although belief or where door, Hogan tried to leave Stan- bathroom was not himself free from self-defense put- ley’s Hogan that as he was home. said blame.” 486 P.2d coat, Stanley ting returned from the on his (Okl.Cr. and, word, “pushed” a without a Williams kitchen 1973), his grabbed the defendant shot wife seven Hogan knife at him. the knife but thought he Stanley inflicting a Defendant testified pulled the knife back times. afraid Hogan’s hand. wife had butcher knife she deep, painful wound on Stan- *9 him, why As to Hogan again grabbed hurt so he shot her. ley swung at and he would once, her defendant said Stanley ran he shot “ more than knife from her. When back just just just stood there Hogan thought going T went blank and she to kitchen Then, said, Although Hogan pumping gun ...’” Id. 337. get he that another knife. confession, Stanley himself when he stab- Hogan’s he that inflicted the wound 1. In stated inflicting deep painful his hand bing Stanley. stabbed argued Hogan at that wound. The State trial got pay the defendant he did not harm stated intend to use and now I’ve ... it’s gun wife, police fair,” 4); (App.Br.Ex. on his officer A at testified “I didn’t even that after the no day, incident indicated realize her that I’d killed until the next glad remorse and said he was it my was over. all I hand knew was hurt and she was reasonably dead,” The Court 4); found evidence (App.Br.Ex. A at “I mean I didn’t suggested stating: manslaughter purpose, sleep do it on can’t even night I at 4); waking (App.Br.Ex.
There were
other
without
...”
up
no
witnesses to the
A at
her,”
jury
homicide
“I
(App.Br.Ex.
other than defendant. The
didn’t mean to hurt
atA
might
3);
reasonably interpret the
just
evidence to
“it was
I
even
...
like wasn’t
there
firing
gun
show that the
somebody
initial
(App.
else ...
it wasn’t even me.”
4).
unexpected
caused
a sudden and
at- Br.Ex. A at
tempt
pair
to attack
defendant with
Several
Hogan’s
cases demonstrate that
scissors and fired
the defendant while
he did
declarations that
not intend to kill
passion.
pre-
the heat of
The lack of
Stanley is
to warrant manslaugh
sufficient
design
meditated
to effect death should
ter instruction.
In Provo v.
jury by
have
prop-
been submitted
(Okl.Cr.1976),
defendant,
manslaughter
er
degree
first
in-
robbery,
course of a
killed a store owner. In
struction.
police,
his statement
to the
the defendant
H67
Regarding
Requested Instruction
manslaughter instruc-
dant’s
provided with a
been
Manslaughter in the First
However,
the Crime of
the
The test
that is not
test.
tion.
Controlling
In
Degree” Is
Conflict With
reasonably
is
whether there
is
Authority That
Not
to the
Was
Called
lesser-included offense
suggesting that
Attention of the Court.
Hogan’s
warranted.
confes-
instructions are
Appellant’s
II.
Death Sentence Should be
of man-
clearly provides some evidence
sion
Aggravating Circum-
Because the
reversible
Vacated
slaughter. The trial committed
“Heinous, Atrocious,
is
or Cruel”
failing
provide
stance
to
error
Unconstitutionally Vague on Its Face and
instructions.
Court,
and the Cor-
As Construed
This
Further,
objec-
I
like to reiterate
would
Jury
Are Uncon-
responding
Instructions
unadjudicated
to
to
use of
offenses
tion
stitutionally Broad.
continuing
aggravating
support
threat
I,
Proposition
to
As it relates
v.
867 P.2d
circumstance. See Paxton
court’s failure
in-
the trial
to
asserts
(Okl.Cr.1994). my opinion, both the
In
jury regarding the
of
crime man-
struct
and the United States Constitu-
Oklahoma
degree
slaughter in the first
as
lesser
prohibit
the use of this evidence
tions
cites in re-
included offense was error and
sentencing, despite
may
fact that it
gards
case
cited in the
to this a
that was not
prohibit the in-
relevant. Our Constitutions
Arizona,
original
v.
brief. Schad
U.S.
punishment
of
and unusual
fliction
cruel
2491,
(1991);
624, 111
justify such It should be noted instruction. AND REHEARING ORDER DENYING given lesser in this case that ISSUANCE OF DIRECTING it to self-de- included as related MANDATE clearly would be “third and this fense jury. Beck held unconstitu- option” Petitioner, Eugene Hogan, has Kenneth prohibited an Alabama statute that tional Rehearing which re- his Petition for filed in capital included offense instructions lesser grant rehearing quests this Court to us, not the case before eases. That is Hogan v. 65 OBJ 2077 given a lesser includ- was instructed and (Okl.Cr.1994). Appellant alleges require- option. offense ed questions has certain deci- overlooked met. Schad of Beck and were ments Schad duly the case and submitted refer- sive of at-, 111 S.Ct. at propositions propositions. These ence two follows, as to-wit: are proposition of error the second Rehearing, appel Petition for Regarding “Prop- raised I. The Decision Court’s that the again this Court find Erred in Refus- lant asks I—The Trial Court osition “heinous, atro- Jury aggravating circumstance ing to the Defen- Instruct With However, warranted as this evidence relief still evidence of several unad- 2. The State introduced jury's finding improperly continuing may have affected the support judicated offenses Stanley especially hei- that the murder aggravating circumstance. The threat nous, continuing Hogan posed atrocious cruel. threat. not find that *11 eious, unconstitutionally vague or cruel” is Appellant
its face. concedes this CO., Court INC.; BUILDERS STEEL Commer- has on numerous times held that such Ceilings Drywall, Inc.; terms cial and Gaines unconstitutionally are not vague asks Plumbing Inc.; City Piping, and and again Court prior holdings. reassess it Awning Co., Inc., Appellants, Tent & This Court will not prior reassess its hold- ings and again is consistent dowe finding, Co., Plaintiff,
make such that the term is not un- Arrow Concrete constitutionally vague, again previ- cite holdings ous of this Court to that effect. HYCORE, INC.; Ltd.; Realty, Brookside (Okl.Cr.1993), Romano v. Hycore Realty, Inc.; Commercial DA & (Okl.Cr.1992), Fisher v. Inc.; Supply Tulsa, Falcon Excavat- and other numerous decisions. Co., Inc.; ing Carpet Co.; Tile & C & C
Having Mirror, appellant’s petition Dyer Inc.; Store, examined the Glass & Water Inc.; relating and the Corporation; EVS, briefs to the Petition for Horner Glass Inc.; Rehearing Mandate, Electric; Stay and Motion to George Pacesetter W. petitioner’s Switlyk; Court finds that the Cropper Petition for 1985 Limited be, Rehearing hereby Partners, should and the same is Limited Partners of Brookside Realty, Ltd., DENIED. Clerk of this part- direct- an Oklahoma limited nership, ed Defendants, to issue mandate forthwith.
IT IS SO ORDERED. Grubbs; Ray Phillips III; Gary Gilbert T. Lumpkin L. . /s/ Herrold; Herrold; Jack Donald LUMPKIN, GARY L. Main, Appellees. and Ron PRESIDING JUDGE No. 78995. A. Charles Johnson /s/ JOHNSON, CHARLES A. VICE PRESIDING JUDGE Oklahoma, Court of Appeals James F. Lane
/s/ Division No. 4. LANE, JAMES F. 8, March 1994. JUDGE Rehearing April Denied 1994. Chapel Charles S. /s/ Certiorari Denied June CHAPEL, CHARLES S. JUDGE Reta M. Strubhar
/s/ STRUBHAR,
RETA M.
JUDGE