Hooker v. State

mitigating evidence and eration of all of the aggravating cir- support in circumstances, find we cumstances, the two Exhibit it examined State’s of death to be substantiated the sentence underpants the victim contained the which appropriate. Based on the the record and wearing time of her death. The at the record, say trial court was we cannot concluded, on his examina- trial court based any by passion, prejudice, or other influenced evidence, panties had tion of the contrary O.S.Supp. arbitrary to 21 factor sentencing, ripped by Medlock. Before been 701.13(C), finding aggravating- § in a requested a continuance allow Medlock outweigh mitigating cir- circumstances expert the exhibit. The defense to examine imposing in cumstances and the sentence request. trial court denied this Accordingly, death. we find no error war- trial court’s ex- Medlock contends that the ranting granting the of certiorari or writ ex improper was an amination of Exhibit 58 modifying the sentence death. parte examination of the victim’s clothing. judge may a Although it is trae that DECISION investigation to de- independent conduct an sentence, appropriate that is not termine the Application for of Certiora- Medlock’s Writ trial court happened in this case. The what DENIED; Judgment ri and Sentence in Kathy’s underpants to assist him examined Degree First Murder is AFFIRMED. for determining credibility of Medlock’s as- Kathy at the time she sertions that was dead LUMPKIN, P.J., JOHNSON, V.P.J., and injuries vagina to the and rectum. sustained LANE, J., concur. underpants been admitted as evi- had object counsel did not dence. Defense STRUBHAR, J., recuse. appropriate It is admission of that evidence. trial to examine the evidence

for the court sentence. in order to determine case doing so. Nor did the There was no error denying court its discretion trial abuse Exhibit 58 request for a continuance State testing prior hearing was available surprised by the admis- Medlock was not of the evidence. sion HOOKER, Appellant, REVIEW MANDATORYSENTENCE Michael John 701.13(C), § O.S.Supp.1985, Pursuant to (1) the sentence we must determine whether Oklahoma, Appellee. The STATE imposed the influence of under of death was arbitrary fac- passion, prejudice or other No. F-88-915. (2) tor, supports trial the evidence statutory aggravating finding judge’s Appeals of Oklahoma. of Criminal Court O.S.Supp. in 21 as enumerated circumstanсe § trial court found the 701.12. The Nov. aggravating circumstances: existence of two Rehearing Denying Order heinous, (1) especially atro- the murder was Mandate Directing Issuance of cruel, prob- there existed cious or Jan. commit criminal ability that Medlock would a con- that would constitute acts of violence society. find the evi-

tinuing threat We aggra- the existence of both supports dence Upon careful consid- vating circumstances.

1355 Defender, Ravitz, Public Paul

Robert Defender, Faulk, Public Public Defend- Asst. trial, Roberts, Office, and Dora er’s S. Defender, County Public Oklahoma Asst. Office, appeal, Okla- Public Defender’s City, appellant. homa Krahl, Atty., Macy, Dist. Kevin Robert Office, Attorney’s Atty., District Asst. Dist. Henry, Atty. H. Gen. of and Robert Hammons, Oklahoma, Asst. and A. Diane Gen., City, Atty. appeal, on Oklahoma appellee.

OPINION

CHAPEL, Judge: charged with Michael Hooker was John Degree First Murder with two counts of Aforethought in violation of 21 Malice 701.7, § in the District Court O.S.Supp.1982, County, No. CRF-88- Case of Oklahoma charged I Hooker with 1939. Count Stokes, II Sylvia and Count murder of murder of Drucilla charged Hooker with the Bills of Partic- Morgan. The filed two State penalty on each seeking the death ulars count. 24-28, 1988, held October

A trial was Freeman, Dis- Leamon the Honorable before conclusion of the first Judge. At the trict jury returned a verdict stage of the degree murder on both guilty first capi- proceeded to the case then counts. The During trial. sen- sentencing phase of tal four the existence of tencing, the found (1) Hooker was aggravating circumstances: felony involving the of a previously convicted (2) person; of violence to use or threat great risk knowingly created Hooker (3) the mur- person; to more than one death heinous, atrocious or cru- especially der was probability el; of a the existence clothing blood on Hooker’s vio- also observed commit criminal acts of would Hooker Sunday they after- when saw Hooker continuing threat to soci- constituting a lence evening. noon Hooker ety. then sentenced counts. From on murder both women, apartment who were Two Sentence, perfect- Hooker has Judgment and apartment on the Hooker-Stokes Sun- below appeal. ed this afternoon, they loud nois- day testified heard es, moving, in the Hooker- like furniture FACTS apartment. Although the witnesses Stokes screaming, any arguing or did not hear Hoоker’s common- Sylvia John Stokes sufficiently troubling as to were loud noises violent, had law wife. Hooker Stokes pray. After five minutes cause the women marked relationship, turbulent which stopped. The women estimated the noises physically attacked episodes which between 4:00 and 5:00 the incident occurred testified about witnesses Stokes. Several p.m. about threats on Stokes and Hooker’s attacks Stokes, Cynthia who was Stokes’ sister and against The State had made Stokes. daughter, she saw Hooker Morgan’s testified Protective Order a Victim’s also introduced apartment Sunday (“VPO”) in the Hooker-Stokes against had secured that Stokes watching on television. evening “60 Minutes” seven months before approximately Cynthia Sylvia nor stated neither her sister Hooker, spring In the her death. apartment with her mother were living in three children were and their Stokes Hooker. Apartments in Oklahoma the Providence mother, Morgan, City. Drucilla Stokes’ Monday morning, Cynthia March On family, also members of Stokes’

well as other grew concerned because she had not Stokes complex. apartment in Witnesses lived Sunday since after- seen her mother or sister complex as one аpartment characterized Cynthia went to the Hooker-Stokes noon. many regularly drugs, used residents where if them. apartment to see she could find PCP, violence was not such as and where Cynthia apartment enter the was unable to infrequent. blocking something because the door. push open managed then the door She and her chil- In late March Stokes apartment. Cynthia in slightly and look shared apartment out of the she dren moved lying pool in a saw her mother on the floor witnesses testified with Hooker. Several immediately police. She called blood. Sunday, March Stokes was that on drinking apartment beer and at her mother’s police Morgan’s both and The found Stokes family. talking and While with friends apartment. The women died bodies apartment, Hook- was at her mother’s Stokes multiple analysis A stab wounds. blood from persuade tried to Stokes to er arrived and both women were of the women indicated him, she refused. home with but return analy- at the time of death. The intoxicated presence further indicated the of PCP sis testified that later that witnesses Several Stokes’ blood. afternoon, Sunday they Stokes and observed apartment. Morgan the Hоoker-Stokes enter Riggs testified that Stokes’ Officer Gilbert they Hooker en- also testified saw Witnesses blocking only apart- body door to apartment. The accounts ter the witnesses’ police investigation revealed that ment. The varied and the times at which of these events Morgan’s murderer left Stokes occurred also varied. Some these incidents po- apartment through a back window. they noticed Hooker bloody footprint witnesses also testified partial a lice also uncovered wearing light apartment leave the colored with apartment that was consistent shirt, carrying jeans, blue tennis shoes tennis shoes worn Hooker. They print could

jacket saw a common brand and the over his arm or shoulder. shoe is similar shoes. clothing. have matched other on Hooker’s Other witnesses blood ingly, a week after the bodies of prop- Over Stokes and relief is not warranted under this found, Morgan Hooker was were arrested. osition of error. jeans analyzed

Blood found on his blue 0; type type B. Hooker’s blood is Stokes JURY SELECTION ISSUES Morgan type Twenty-two were blood B. per cent of African-Americans have blood XXIII, Propositions In XVII and Hooker, type Morgan B. Stokes and are urges alleged errors selection African-American. process overturning warrant his convictions disagree.

and sentences. We PRO SE PROPOSITION OF ERROR XVII, contends peremptory challenges State’s use of its 13, 1993, On November Hooker filed with jurors expressed to excuse certain who some pro proposition this Court a se of error con- ability impose hesitation about their tending he was denied effective assistance of Sixth, penalty Eighth violated the arraignment. counsel at his Hooker con- Fourteenth Amendments. This appearance, tends that at his initial where he is without merit. plea guilty, entered a of not counsel was not present. Although arraignment minute court, request prose- The trial at the appearance for this initial does indicate at cutor, jurors excused for cause two who said point present, one that counsel was not they unwilling impose would be unable or following document also contains the nota- penalty. challenge the death Hooker did not tion: object prosecutor excusing these jurors. potential

PD two The statements of jurors prospective these two made clear that appears they were unable to consider death as a DA penalty, they properly were for excused cause.2 assuming pres

Even counsel was not (which appeal, appear On Hooker does not appearance ent Hooker’s initial record) challenge ruling excusing trial court’s completely clear from the counsel jurors prospective cause the two subsequently discussed represented pre Hooker at the above;3 rather, complaint liminary hearing, he focuses his arraignment at the held prosecutor’s peremptory two of the following preliminary hearing, pre chal- all hearings lenges. right Hooker contends his to a fair trial motions and at trial. Hooker object impartial jury did not to the lack of counsel was violated when the at the appearance any way prosecutor ‍​​‌​‌‌‌​​‌​​‌​‌​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​​​‌​​‌‍peremptory initial nor was he exercised his first prejudiced by alleged challenge error.1 Aecord- to excuse Arthur Clinton4 and 614, (W.D.Okl. Page, F.Supp. prevent substantially 1. Sisson v. those views would or im- 1968). pair performance juror of his duties a oath”); accordanсe with his instructions and his Prospective Prospective Juror Vermillion and Illinois, Witherspoon v. 391 U.S. they Juror Scothorn both that stated would be 20 L.Ed.2d 776 punishment they unable to death as a if consider guilty degree found the defendant of first mur- above, removing prospective jurors 3. As stated Witt, Wainwright der. See 469 U.S. proper Vermillion and Scothorn cause was for (1985) (standard 83 L.Ed.2d 841 for grounds and would not be for relief. determining juror may whether be excused for "prevent cause is whether his views would or brief, objects prosecutor In his Hooker to the substantially impair performance of his excusing jury pool. "Clinton Smith" from the juror duties as a in accordance with his instruc- oath”); Texas, jury panel. "Clinton Smith” was not on Hooker’s tions and Adams v. 2521, 2526, (1980) referring likely juror Most Hooker is Arthur Clinton, ("a juror prosecutor juror may challenged a who the did remove not be for cause based punishment panel. capital jury on his views about unless from the XXIII, complains Hooker prosecutor his third

again used when process Bar- challenge to remove Juror that the selection set forth peremptory 18, 28(A), and Williams6 O.S.Supp.1987, §§ bara Williams. Both Clinton5 violated his or hesitation expressed some reservations jury pool a fair cross- right to a drawn from penalty, imposing but ulti- about death community. Specifically, section they consider mately indicated that would 28(A), provides Hooker claims section which punishment. At Hooker did as a death age seventy persons over the shall not object prosecutor’s use of his not jurors, compelled to serve as is constitu- be challenges two peremptory to excuse these tionally complains defective. Hooker also Accordingly, will potential jurors. this Court § O.S.Supp.1987, which draws the that 38 only plain for error. review age eigh- pool persons from over the drive, is constitu- teen who are licensed Essentially, argues prin tionally infirm it excludes blind and because forth in Batson v. ciples and limitations set groups handicapped persons, as well as other peremptory Kentucky7 apply to chal also persons might not be licensed to who jurors expressing lenges of reservations drive. who, penalty but nonethe about the death less, not removed for cause from the are Court, This in a number of other suggest that in jury. Hooker does not cases, rejected carefully has considered and peremptory prosecutor used his case 28(A) the claim that section violates the fair racially-motivated challenges improper, for requirement.8 likewise re cross-section We reasons, prosecutor’s per or that use of the 28(A) ject Hooker’s claim that section vio any emptory challenges had kind of effect on requirement. lates the fair cross-section jury, make-up the racial any prosecutor’s peremptory challenge had O.S.Supp. As to the claim that 38 Rather, improper purpose or effect. other infirm, constitutionally § 18 is we also have simply argues improper that it was similar claims in other eases and considered jurors express who reservations to strike rejected such constitutional attacks on sec penalty. a dramat about the death There is Further, pres tion 18.9 Hooker has failed to striking juror ic difference between any to show that ent Oklahoma’s ju racially-motivated striking a reasons and process selection excludes distinc expresses personal some res ror because he community. group tive in the To establish ability impose ervations about his certain prima faciе case of a violation of the fair types punishment. persuaded We are “ requirement, cross-section ‘must principles of Batson should be extended group alleged show that the to be exclud jurors express who reservations about the group community; ed is a “distinctive” prosecu penalty, and we conclude the (2) representation group that the of this challenges peremptory tor’s use of his did plain juries not constitute error. venires from which are selected is not State, 56, (Okl.Cr. 1994); he did how he 8. Brown v. 871 P.2d 5. Juror Clinton stated not know 63 penalty 203, State, (Okl.Cr.), felt about the death cern about whether the death and indicated con- v. P.2d 207 Trice 853 cert. penalty would ac- denied, - U.S. -, 638, 114 S.Ct. 126 L.Ed.2d However, tually be carried out. Clinton did state State, 1289, (1993); 597 (Okl.Cr.1992), Ellis v. 867 P.2d 1294 penal- imposing that he could consider the death denied, (Okl.Cr.1994); reh. Sellers ty- State, denied, (Okl.Cr.), v. 809 P.2d 676 cert. 502 912, 310, (1991); 112 116 L.Ed.2d 252 S.Ct. initially 6. she Juror Williams stated would "be State, (Okl.Cr.1989), v. 779 P.2d 562 Fox impose penal- surprised” if she would the death 1060, 1538, 110 108 494 U.S. ty, but did advise she would consider (1990). 777 L.Ed.2d penalty possible penalties as one of the three that imposed degree could be for first murder. Trice, 207; Fox, P.2d at P.2d at 9. 853 779 566. 1712, 79, 7. 476 U.S. 90 L.Ed.2d 69 (1986) (prohibiting peremptory chal- race-based lenges). trial, pretrial hearing and at to the number At a State fair and in relation reasonable (3) justified pool cue community; admission of the incident persons of such and following exceptions to the under other sys- underrepresentation this is due to that (1) evidentiary crimes bar: common scheme group tematic exclusion of the ”10 (2) plan, or intent. The or motive or evi- process.’ Hooker does not even selection probative dence was admitted as of motive or showing. he attempt this Rather to make intent. allegations unsupported solely relies appeal. first time on This bias raised for the Although the evidence admitted as error is without merit. exception, probative of or intent motive this

Hooker focuses his attack of evidence on TO GUILT RELATING ISSUES grounds that it does not fall under com- AND plan exception.12 INNOCENCE scheme or mon Hooker is pool that is not correct cue incident suffi- I, contends the trial ciently to the distinctive nor connected stab- by allowing court the State to intro- erred Morgan bing deaths of and as to Stokes (1) testimony in 1986 duce that Hooker wait- plan. constitute a common or scheme How- apartment in their then ed Stokes ever, prove аdmitted to the evidence was cue; pool attacked her with a intent, purpose this motive and for and/or redacted of a Protective Or- version Victim’s proper. admission of the evidence was (“VPO”) against der which Stokes obtained Hooker in version of October previous Evidence of altercations be following given to the included VPO spouses tween is relevant issue of “please by help written Stokes: statements prior intent.13 of Hooker’s attack Evidence ... I like me want to be the others don’t motive on his wife to show was relevant (State’s dead,” he will harm me.” and “Feel intent, of this probative value evi 45b) complains Exs. 45a admis- outweighed effect. prejudicial dence its Ad sion of evidence warrants reversal of proper. mission this evidence disagree. convictions. We VPO, As to the admission of the Before filed Burks11 no- pretrial hearing State counsel at a conceded counsel it advising tice defense issuance of itself was admissible the VPO objected seeking evidence of the 1986 inclusion of written state- to introduce but incident, by that were included in the pool cue well as other ments Stokes incidents. 687, (Okl.Cr.1988) (evidence Sellers, prior quoting, about inci v. 809 P.2d Duren Missouri, 668, properly wife was dents where husband attacked Tríce, case); See 853 P.2d v. admitted in marital homicide Brown State, (OkI.Cr.1988)(testimony 753 P.2d concerning by two children hus wife/decedent’s State, (Okl.Cr. 1979). 11. Burks v. 594 P.2d gun proba band/appellant's pointing at wife was intent); appellant's tive of motive Villa and/or State, (Okl.Cr. P.2d 12. See Driver v. (ev State, (Okl.Cr.1985) nueva v. 695 P.2d 858 ide (other 1981) crimes evidence admissible under prior between husband and nce altercation exception plan or where crimes common scheme malice); Manning wife was relevant to issue distinctive, signature, highly almost like a are (Okl.Cr.1981) ("[i]n depends upon and where one crime facilitates (Okl. cases, another); showing a statement ill- Atnip marital homicide Cr.1977). spouse feelings, one conduct threats or similar relevant to show motive or towards other is State, (Okl.Cr.1991), 825 P.2d 13. See Duvall v. 626 State, malice”); Wadley 553 P.2d 523 v. - U.S. -, (Okl.Cr.1976) (in homicide cases evi marital (1992) (evidence feeling, of ill ill-treatment, relating “ill-feeling, jeal dence to threats, by spouse one conduct toward or similar violence, assaults, threats, ousy, prior personal case is admissible another in a marital homicide by any attitude similar conduct or hus Stаte, relevant); 774 P.2d Holt v. to admissible show band toward the wife” is (Okl.Cr. 1989) (victim protective order admissible malice). motive and State, motive); show Lamb v. P.2d to reference required court error to allow the to hear this body The trial of the VPO. However, we state- to “the others.” because find some of Stokes’ State to delete document, beyond a doubt that this error did but allowed the reasonable from the ments verdict,18 this error is “please to remain: not contribute to following two statements warranted.19 like the others harmless and relief is not help me ... I don’t want to be (State’s dead,” he harm me.” and “Feel will I, Finally, Proposition under Hooker as- 45b) At counsel Exs. 45a and defense by providing trial court serts that the erred 45A and 45B were stipulated that exhibits 12. Instruction 12 with Instruction signed by copies original an VPO redacted to, on, apparently identical based is objected Sylvia to the ex- Stokes. Counsel (O.R. requested Instruction 27. grounds of relevance and hear- hibits on the 331) properly This instruction limited the say.14 jury’s to consideration of this evidence State,15 grounds issue of motive and is not for relief. In Moore v. this Court held hear- say statements of a victim’s state of mind are O.S.1981, 2803(3), §

admissible under error, In his seсond exception mind which is the state of in Hooker claims the trial court erred admit hearsay recognized as rule. This evidence is ting bearing bloody shoeprint a floor tile spouse in one kills the relevant cases where prejudicial because the evidence was more However, spouse.16 other “while the de- probative repetitive. than and was This floor antecedent declarations are admissi- ceased’s tile was taken from the Hooker-Stokes mind, to show or her state of declara- ble apartment linking and was used as evidence referring tions the deceased to the defen- Hooker to the murder scene. The admission past are inadmissible.” dant’s acts bloody analogous tiles is to cases bloody clothing

which been admitted into has statement, evidence. This Court has found that admis The VPO Stokes’ “please help clothing proper if he will harm me” and sion such it serves to “Feel me,” prove point or to connect of mind the defendant to were admissible under state Here, hearsay the crime.20 the evidence of the exception rule and the deci bloody tile was used to connect of this statеments consti sions Court. Such the crime scene. The trial court did not state of mind tute a declaration Stokes’ admitting However, abuse its discretion this evi and, accordingly, were admissible. dence. statement, “I don’t want to be like the dead,” Al others is a different matter. III,

though this statement does reveal Stokes’ Hooker con mind, refusing state of the reference to “the others” tends that the trial court erred lesser-included, past implies Hooker committed acts of vio instruct the on the non- people. capital Degree lence in which he killed other It was offenses of Second Murder State, brief, reply Wadley v. v. 14. In his Hooker cites State Alexan- Moore at 870. See v. State, (Okl.Cr.1976). der, (1991), P.2d 524-525 303 S.C. 401 S.E.2d argue not have been admit- that the VPO should a South Carolina rule ted. Alexander concerns Moore, 870; Wadley, 18. See 761 P.2d at are inadmissible at trial and is not affidavits at 524-25. applicable to Hooker's case. 19. Hooker also asserts that this evidence was (Okl.Cr.1988). 15. 761 P.2d 866 improperly However, stage used second of trial. overwhelming sup- due ‍​​‌​‌‌‌​​‌​​‌​‌​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​​​‌​​‌‍to the sentences, porting Hooker’s two death we find State, 626; 825 P.2d at 16. See also Duvall admitting error in this evidence was harm- 890; State, Lamb v. 767 P.2d at Brown v. imposition penalty. less as to the of the death 911; supra; P.2d Villanueva State, 330; Manning Wadley v. 630 P.2d at v. State, State, (Okl.Cr.1985). 553 P.2d at 523. 20. Klinekole v. 705 P.2d 179

1361 stage during intoxication the first of and court erred dence of Manslaughter, the trial and not sufficient an instruc- trial was to warrant give requested self- failing to Hooker’s voluntary tion on intoxication. voluntary instruc- intoxication defense jury on must A trial court instruct tions. to the two of As lesser-included offenses the lesser-in-

lesser-included when fenses, defense that he commit Hooker’s was theory of or the defendant’s eluded offense whatsoever, commit crime not that he ted no supported any evidence the case is a lesser offense. Where the defendant ted However, does where the evidence record.21 crime, innocent of he is not claims he is reasonably support on the a conviction not to offense instruct entitled lesser-included offense, the evi- included or where lesser correctly court when The trial ruled ions.24 support no the defen- provides dence give not to it decided the lesser-included case, theory of the the instruc- dant’s then instructions.25 offense provided.22 not be tions should error, In his fourth Here, was Hooker’s defense in in- erred contends that trial court prove failed to that he was the State depended structing the State person Morgan. In killed Stokes and who evi- part” “in on direct circumstantial voluntary in self-defense and structions on as, Hooker, against case accord- its dence were not warranted since toxication Hooker, wholly circum- ing the case to was not that he in self-defense defense was acted prejudiced he was stantial. claims to form or so intoxicated as to be able argu- phrase part.” “in This by use of not requisite intent but rather that he did Reading the in- without merit.26 ment is all, that the commit the crimes or at least whole, did not structions as the instruction prove beyond to a reasonable State failed fairly prejudice Hooker. The instructions was the In addi that he murderer. doubt proof and forth the State’s burden of set tion, indicate that there was no evidence to warranted. relief is not Morgan aggres acted as the either Stokes Morgan killed some

sor. The fact that had V, contends In ingested past or that had one in the Stokes malice prove the evidence insufficient itself, POP, not sufficient aforethought. in аnd This is without contention Fur warrant a self-defense instruction.23 Prior deaths Stokes merit. kill ther, Morgan, evidence intoxication was Hooker stated that he wanted most of the history long also had a presented during stage, second and the evi- them. Hooker State, (Okl.Cr.1992); reversed defendant's conviction 829 64 Court 21. See Hunter v. P.2d State, 1988); 946, (Okl.Cr. Stanley 762 P.2d 949 law forbid the v. because Alabama death sentence State, (Okl.Cr.1985). 706 v. P.2d 534 Broaddrick providing with a lesser- court from trial though the evi- instruction even included offense State, 1297; Duvall v. v. 867 P.2d at 22. See Ellis Further, the warranted instruction. dence 627; State, State, 750 P.2d 825 P.2d Hale v. penalty required the death Alabama statute 878, denied, (Okl.Cr.), 109 cert. 488 U.S. 130 finding upon to sentence defendant to 195, (1988); Mann v. L.Ed.2d 164 S.Ct. 102 guilty capital offense. This the defendant denied, (Okl.Cr.), State, 488 P.2d 1151 749 advisory judge, after trial and the sentence 193, (1988); 877, 102 163 L.Ed.2d U.S. mitigating evi- weighing the State, (Okl.Cr.1987). 743 P.2d 1096 Bennett v. dence, In then the sentence. would render case, Broaddrick, (Okl.Cr.1985). warrant a did not P.2d 706 534 Plooker's jury pos- and the lesser-included instruction (Okl.Cr.1986), 1366, 1371 24. Smith impose less than discretion to a sentence sessed denied, 1033, S.Ct. rt. U.S. ce compel the trial court Beck does death. reh. 97 L.Ed.2d un- provide instructions lesser-included offense (1987). L.Ed.2d circumstances. der these Alabama, appеal, Hooker on Beck v. 25. On relies (Okl. 26.Underwood 65 L.Ed.2d Beck, Cr.1983). misplaced. reliance is This against age and threats Stokes. This sumed to be adults at the of sixteen and violence evidence, along subject jurisdiction with evidence testi- were to the of the district scene, mony linking Hooker to the crime they may court for criminal acts have aforethought. sufficient to show malice Females, hand, committed. on the other evidence, and the inferences to be When juveniles age were treated as until the therefrom, light viewed in drawn are eighteen. subject juris- A female was to the State, most favorable to the evidence only juve- diction of the district court if the every hypothesis tends to exclude reasonable young nile court certified the woman to stand Further, guilt.27 other than Hooker’s we are system an trial as adult. This violated the persuaded by not Hooker’s contention that Equal Protection Clause of the Fourteenth showing that he was intoxicated Amendment, and males who were convicted day precluded finding of the murders a system of offenses under this are entitled to requisite formed the intent he for first hearing to determine whether the court degree murder. The evidence of intoxication would have certified them to stand trial as an inconsistent, and most of the evidence adult.29 showing drug and alcohol abuse presented during sentencing phase Hooker was seventeen-and-a-half during guilt of trial and and inno- years old the time of the commission of stage cence of the trial. The evidence is the two 1971 offenses. He was treated as an sufficient to sustain Hooker’s convictions for adult without the benefit of a certification degree murder in the first of Stokes and hearing. preliminary hearing After the Morgan. cases, pleaded guilty the 1971 Manslaughter Degree in the First and As ISSUES RELATING TO PUNISHMENT Battery Deadly Weapon sault and with a In his sixth of error Hooker Although with Intent Kill. Hooker subse challenges the of two 1971 use convictions to quently sought post-conviction review of his (1) support circumstances of convictions, there is no record that a prior felony involving conviction of a use or post-conviction hearing on the issue of certifi violence, continuing threat of threat brief, cation was held. Hooker re society. Hooker contends the trial court quested that this Court render the 1971 con refusing erred in to strike the two 1971 or, alternatively, victions void hold the case grounds convictions that the convic- abeyance proper post-conviction while a juvenile system tions were obtained under a hearing was held. Because there was no subsequently which has been found to be proper hearing record that a on the issue of unconstitutional.28 held, certification was this Court remanded hearing the case to the district court for a Prior to and females males between determine whether Hooker would have been ages eighteen of sixteen and were treated differently juvenile certified to stand trial as an adult in under the Oklahoma the two justice system. pre- criminal Males were 1971 cases. State, (Old.Cr.1993),requirements v. Romano 847 P.2d of Lamb versus Brown of the 10th — -, f’d, (T. 52) Circuit.” VVol. The trial court over- af (1994); State, Billey L.Ed.2d 1 Thus, objection. preserved ruled the the issue is (Old.Cr. 1990); Smith v. appeal. (Okl.Cr.1985). Anderson, (10th 509 F.2d 1093 29.Radcliff stipulated previously

28. At he had Cir.1974), prior been convicted of two violent felonies. Brown, (1975); Lamb v. However, objected prior counsel to the use of the (10th Cir.1972); F.2d 18 Edwards v. aggravation felonies in because “Mr. Hooker was (Okl.Cr.1979). P.2d 313 juvenile when he committed this crime and pursuant was never certified as an adult

1363 twice, gun then shot hearing party’s district hostess and the was held before the A 27, of wounding killing its the woman and a friend April support of court 1994.30 theory Although certi- Hooker advanced the position that would have been his. Hooker 1971, him with a knife an adult in that the woman threatened to stand trial as fied self-defense, theory in that upon preliminary and and he acted relied the record State subject dispute preclude his cases.31 to and does not hearing transcript from the 1971 Ac- support claim to trial as an adult. called a to his certification stand Hooker witness cordingly, we that use of the 1971 con- acted in and that find that he self-defense support aggravating circum- At the of to killing was accidental.32 conclusion victions previous felony of conviction of a healing, the trial court made extensive stances involving use or threat of violence and con- complete findings of fact and conclusions tinuing society proper. Hooker threat to of law. The court concluded that been to trial as an would have certified stand error, proposition of Hooker In his seventh adult. stipulations his to the four complains two of improper aggrаvating trial con- circumstances were supports The record court’s personally stipulate he did to the that would be certified to because not clusions Hooker and the trial court preliminary aggravating as an The circumstances stand trial adult.33 question stipulations as hearing transcript reveal not him about and other records did by claim of years required four Brewer v. State.34 This seventeen Hooker hearing from a on October when committed the crimes of error stems held months old he 21, stipulated manslaughter battery with a 1988 which defense counsel and assault felony evening February prior deadly weapon. the existence of two violent On the of to 1971, support used 13, party a armed that would be to Hooker attended convictions prior of conviction gun. aggravating He a confrontation with the circumstance with a had hearing to Although repeatedly sought script the certification an was used at Hooker has evidentiary hearing prosecutive on this issue in both state merit that the cases had show 1971 specifically requested a and federal court and surrounding the circumstances and to show the Court, hearing this at the in his brief bеfore relying did err in crimes. The court below not hearing supplemental and in filed with brief hearing. in this on these documents now claims this Court on June Hooker hearing could not be held that the certification retrospectively. testify about also a witness to 32. Hooker called argument this to be We find difficulty experienced trying present in to he Kaiser, Kelley generally 992 merit. v. without See inability investigate to the 1971 cases his Cir.1993) (court (10th an evi- 1509 ordered F.2d witnesses, Boyce Claudia who testi- find such as dentiary hearing determine defendant whether hearing. preliminary As we at the fied 1971 case); as adult 1965 would have been certified earlier, reject that Hooker’s contention stated we Bromley Crisp, F.2d 1362-1363 v. 561 denied, Cir.1977), hearing retrospectively. (10th be held could not 98 U.S. (1978) (case Bromley, supra. of co- S.Ct. See evidentiary for hear petitioner Killion remanded conviction). ing Further, on certification issue 5; Kaiser, Kelley n. v. 992 F.2d at 1513 33. See all can take account "[t]he court into (Okl.Cr. Sherfield arise, proof, that weakness doubts 1973). against passage of time factors because protection This will afford substantial the state. allege supplemental appears Hooker рetitioners the fact that the determi from court somehow shifted brief that trial earlier will circumstances in nations concern support proof for There is no to him. burden Bromley Crisp, n. 6. years.” 561 F.2d at 1357 allegation. this brief, objects supplemental In his (Okl.Cr.1982), 650 P.2d 54 rt. ce preliminary on the 1971 the State’s reliance hearing 794, 74 L.Ed.2d 999 transcript these cases and the records in (in capital circumstance case where finding support would have felony involving use or prior conviction trial as an adult in 1971. certified to stand been person, must be of violence to defendant threat hearing, preliminary At the prior personally stipulate to given opportunity to represented and he present, he was counsel stipulate felony may and counsel conviction opportunity the State's to cross-examine had defendant). hearing preliminary tran- witnesses. felony involving use or threat of violence. tential harm might occur if the State Entering stipulation assures that put proof the were allowed to regarding on its jury will not hear prior felony evidence of the crime itself. the two violent convictions. This present pretrial hearing, Hooker was at this Court faced similar situation in Pickens v. Pickens, but interrogate the trial court did not Hooker State.35 In we found that even personally nor stipulate though did Hooker to the defense counsel rather than the de- prior During convictions. there was a fendant stipulation regarding entered a the prior convictions, brief bench conference in which felony counsel ad principles the dressed defense counsel’s desire to allow Brewer were not pur- violated. The basic stipulate continuing pose to also of Brewer was to allow a defendant to aggravating threat pur circumstance. The ‍​​‌​‌‌‌​​‌​​‌​‌​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​​​‌​​‌‍stipulation jury enter a so that the would not pose stipulation again of this was to underlying prior assure hear the felony facts of the that the would not hear evidence of the convictions. Hooker received that benefit underlying prior circumstances prejudiced by Hooker’s fel and was not the fact that he ony personally convictions. Hooker was not at the did not stipulations. enter the No present bench but he the courtroom relief is warranted assignment under this during Shortly thereafter, this discussion. error. judge

the continued the discussion cham bers with prеsent VIII, counsel. Hooker was not In Hooker chal discussion, during this lenges Hooker’s counsel constitutionality aggrava specifically presence waived the ting of his client. great circumstance of risk of death to conference, prosecutor At this and de person. more than one This has Court re agreed fense stipulation counsel to a on the aggravating viewed this circumstance in oth continuing aggravating threat circumstance. er cases and found it to constitutionally be stipulations, As a result Moreover, of these neither the valid.36 this Court has found that State, defendant, nor the offered killing evi person more than one is sufficient to dence underlying about the facts prior support aggravating this circumstance.37 felony present offenses. Hooker was when Hooker killed his common-law wife and his apprised the trial court of the two mother-in-law. The evidence is sufficient to stipulations. support the aggravating circumstance of

great risk of death to person. more than one counsel, Neither defense nor the

prosecutor, nor complied the trial court with In error, his ninth requirements the technical of Brewer. Hоw Hooker contends that the instruction on ever, during heinous, regarding stipu discussions atrocious or aggravating- cruel lations, specifically defense counsel referred adequately circumstance did not narrow the to Brewer. alleges Hooker neither persons subject .ineffec class of penalty to the death tive assistance of nor counsel claims that he though even the instruction contained the stipulations. would not have entered the narrowing language, It phrase “The ‘especially apparent heinous, is from atrocious, the record that the decision or cruel’ is directed to stipulations to enter part of a calcu those crimes where the death of the victim strategy designed lated po- to alleviate the preceded by torture of the victim or denied, 328, (Okl.Cr.1993), 850 P.2d cert. 494 U.S. 35. 110 S.Ct. -, L.Ed.2d (killing - people L.Ed.2d 775 three suffi circumstance); aggravating cient to this Stout v. (Okl.Cr.1984), cert. de Trice, 220; Smith, 853 P.2d at 111 P.2d at nied, 87 L.Ed.2d (1985) ("evidence was sufficient to show that appellant knowingly great created a risk of Sellers, (killing par 809 P.2d at 691 of both person appellant death to more than one supported circumstance); aggravating ents this people”). killed two (Okl.Cr.1989), Fowler v. addition, contends, In requirement physical abuse.” serious support con evidence was insufficient preceded by be victim that the death circumstance, tinuing aggravating threat physical victim or serious torture unadjudicat- allowing the trial court erred aggravating cir- narrowly this tailors abuse support aggra be this ed offenses to used applied it in a constitu- cumstance so vating Contrary to Hooker’s circumstance. case, the evi- tional manner.38 support claims the evidence was sufficient supports finding that the deaths of dence stip aggravating circumstance. Morgan preceded tor- and Stokes were continuing ulated threat Both were physical abuse. women ture prior convictions for circumstance and times; a number of both women stabbed manslaughter battery are and assault and dying; to ten minutes before lived one support aggravating this circums sufficient to wounds; defensive and Stokes sustained unadjudicated prior The offenses tance.42 physical struggle there was evidence that past referring to which Hooker is are acts of evi- apartment.39 The had occurred allegedly upon violenсe that Hooker inflicted suffering physical suf- dence shows conscious wife, and this decisions under Court’s support aggravating to circum- ficient this This proposi is admissible.43 such evidence stance. is tion of error without merit. X, challenges Proposition Hooker error, proposition In his of eleventh constitutionality continu of Oklahoma’s the complains prosecutor erroneous Hooker aggravating under ing threat circumstance lack remorse as a ly argued Hooker’s of constitutions both state federal nonstatutory aggravating circumstance. aggravating claiming circumstance is prosecutor, in sec asserts that Hooker previ vague and This Court has overbroad. argument, improperly ar stage closing ond ously rejected challenges aggra such to this At the gued Hooker lacked remorse. that persuad vating are not circumstance and we outset, contempo no must note there was we Further, position.40 Hook change to our ed objection prosecutor’s com to raneous “society” argues term used in that the as er ment and thus this Court will review continuing aggravating circum threat only. prosecutor’s plain The comment error “prison to soci should be restricted response mitigating stance to was made in rejected argument this ety.” This that he remorseful. Comment Court by ing defendant on to so on evidence raised Berget,41 we continue hold. State, 1143, 1273, State, (Okl.Cr.1993),1994); 877 P.2d 1156 862 Revilla v. Hooks v. P.2d 1282 38. denied, 1870, 79, - U.S. -, State, (Okl.Cr.1994); P.2d 101 114 S.Ct. Allen v. 871 cert. State, (1994); 1301; Trice, Ellis, (Okl.Cr.1994); v. 847 128 L.Ed.2d 490 Romano 867 P.2d at 890, State, 387; State, Hayes 220-221; v. 845 892 P.2d P.2d v. 806 P.2d 853 P.2d at Boltz State, 364, (Okl.Cr. 1992); Berget denied, 846, 824 1117, (Okl.Cr.), v. P.2d 373 502 1125 cert. U.S. - -, denied, (Okl.Cr.1991), cert. U.S. 113 143, (1991). L.Ed.2d 109 112 S.Ct. 116 124, (1992); v. L.Ed.2d 79 S.Ct. 121 Stouffer State, 562, (Okl.Cr.1987) (opinion 742 563 P.2d 41. 824 P.2d at 374. 1036, denied, rehearing), cert. 484 U.S. 108 on 763, (1988); also Wal L.Ed.2d 779 see S.Ct. 98 Malone, Hooks, supra; P.2d at 1282- 42. See 862 State, 3047, 639, Arizona, 497 110 S.Ct. 111 ton v. 270, Trice, 1283; supra; v. 819 P.2d Smith (1990). L.Ed.2d 511 — U.S. -, (Okl.Cr.1991), 112 277 rt. ce State, 555, (Okl.Cr.1991), denied,- U.S. v. P.2d 2312, 232, 119 L.Ed.2d reh. Battenfield denied,- U.S. -, 1491, 112 S.Ct. -, (1992); L.Ed.2d (1992) (must show evidence of 117 L.Ed.2d 632 Boltz, 806 P.2d at 1124. suffering prior physical to victim conscious physi required death to meet torture serious Although I to believe use continue Arizona, standard). v. abuse See also Walton cal proper, unadjudicated prior offenses is proof majority allowed of unad- of the Court has support aggravating judicated offenses State, (Okl.Cr.1994); 867 P.2d circumstance. Paxton Malone v. J., (Okl.Cr. (Okl.Cr.1993) (Chapel, dissenting). Snow proper.44 prose- the issue remorse The dence that Hooker was under extreme emo- did plain cutor’s comment not constitute er- tional distress at the time of the offense. ror. Both of these instructions advised the

that Hooker’s mitigated sentence should be complains also about the ad due to his emotional state and intoxication. photographs Although showing smiling mission him trial give court refused to these trial, instructions, when he was arrested. At two Instruction which was objected grounds provided on jury, this evidence that advised the it was irrelevant it right among violated his the mitigating circumstances offered by remain silent. Hooker does not make these were that Hooker was under the objections appeal on complains but rather influence of and POP at the time of alcohol photographs about the in the context of the the offense and that the murders were com- improper use of lack of remorse jealousy non- mitted as a result of anger. statutory instructions, whole, circumstance. Where taken as a sufficient- objects specific a defendant ground ly on a properly advised the about the objec this Court will not mitigating entertain an evidence offered Hooker. ground tion appeal.45 on a different No

relief is warranted under this complains Hooker also error. improperly prevented trial court him from

presenting testimony about stop his efforts to XII, Proposition In objects using jury Hooker POP. A precluded should not be to the photographs admission of color considering any of from mitigating evidence re Morgan. Stokes photo garding of Some the a defendant’s character or record or graphs depict any the scene at the Hooker- circumstance of the crime which miti Stokes gates against home and some were taken at the death.47 While it would have medical examiner’s office. prudent We find that the been more to allow the evidence of trial court did not abuse its addiction, discretion Hooker’s efforts to drug end his admitting photographs.46 these the supporting penalty the death

overwhelming excluding error in this proposition In his thirteenth of er evidence is harmless.

ror, that, through states no fault of counsel, jury

defense the was not instructed Hooker further contends the trial mitigating on all initially evidence. Hooker improperly court testimony limited the of Dr. complains that the trial court erred in not Vicary, a expert defense witness.48 We dis providing proposed Hooker’s stage agree second with Hooker’s characterization of de instructions 4 5. Instruction 4 con fense counsel’s Vicary. examination of Dr. cerned the mitigating evidence Vicary that Hooker Dr. testify was fully able to about his was intoxicated at the opinions time of the offense. regarding conclusions Hooker. Instruction mitigating 5 concerned the evi- This of error is without merit. Smith, 1373-1374; 727 P.2d at Curliss v. improper. California were This Court allows a (Okl.Cr.1984). 692 P.2d 559 trial court conducting wide latitude in the trial. Here, the jury trial court advised the that the (Okl.Cr. 45. Trim v. of issue whether there were circum- 1991). jury stances was a matter for the and the court expert would not allow the preempt defense Stout, supra. juiy the role determining question. this Carolina, Skipper v. South judge’s These per- comments did not reveal the (1986); ‍​​‌​‌‌‌​​‌​​‌​‌​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​​​‌​​‌‍Eddings L.Ed.2d 1 issue, opinion sonal about the facts at and it is Oklahoma, 455 U.S. prejudiced hard to see by how Hooker was these (1982); Ohio, L.Ed.2d 1 Lockett v. judge’s remarks. The trial comments do not constitute error. 48. Hooker also contends the trial court's com- regarding expert ments Hooker’s witness from stage closing XIV, argues prosecutor during the second

In First, troubling. excluding argument far more the court erred in are the trial professor jury justice in argued “do testimony Draper, prosecutor of Dr. Wanda justice. you only Psychiatry and Behav And do that Department of this case. Do Collegе Medicine at two of in this by bringing Science back verdicts death ioral University lodge Health Sciences not a con- Oklahoma Hooker did case.” While comment, Draper objection Dr. temporaneous Hooker contends that to this Center. that, perilously on her re have testified based come close prosecutor’s would comments literature, by the chil argument and the scientific which condemned search Second, Stokes, McCarty would suffer dren of Hooker and v. State.51 Court was sentenced to death counsel’s prosecutor responded more if their father to defense imprisonment mercy by telling if to life he was pleas than he was sentenced Draper possibility parole. “guilt trip jury]” laid on sorry [the without about the personally examined she had not Defense counsel ob- admitted Hooker’s counsel. testimony jected, objection and the and her based was sustained children disregard which defense the state- research and information admonished Nonetheless, prosecutor her about the children. tried to counsel furnished ment. testimony Draper’s argument found Dr. until the trial trial court this line of continue expert attеmpts so agree. We wit further to do irrelevant. court halted disregard prose- chil not interview or examine the ness did admonished the Finally, prosecutor conclusions The witness’ theoretical dren. cutor’s comments. you character or “I kill argued are relevant to Hooker’s not to their client. ask particular you bring in a of this crime. All can do is circumstances You can’t. 196) (T. ...” V Defense

verdict addition, objected to and the requested the comment counsel objection. testify Such the court sustained the be allowed to trial an economist permissible push the of op a life comments boundaries of sentence cost-effectiveness evidence, prose- the argument we do not condone penalty. This and posed to the death of law the trial disregard the although may policy-makers, relevant to cutor’s it be Nonetheless, in warnings. we find mitigat of category fall within the court’s does not not in ease that the comments were verdict trial court did not err ing evidence.49 The and, light in of the overwhelm- determinative excluding such evidence. of supporting imposition the the ing evidence be penalty, these must con- error, death comments of proposition In his fifteenth Accordingly, modification harmless. sidered incidents of al Hooker asserts that several not sentence is warranted. of Hooker’s re leged warrant prosecutorial misconduct or of his his convictions modification versal of XVI, argues prosecu Proposition Hooker the We have reviewed sentences. In penalty statute is the the Oklahoma death find that some of that tor’s comments and prosecu gives it the complains unconstitutional because do about which Hooker comments deciding in whether too much discretion prosecutorial miscond tor the level of not rise to Hooker cites penalty. the death However, to seek other comments made uct.50 Lockett, aggravating supra; quately explain the circumstance Eddings, Skipper, supra; 49. See heinous, jury. Howev- supra. atrocious cruel er, alleged objection to this error there was no complains prosecutor the misstated 50. Hooker clearly explained jury the the instructions stage during the of trial. law on intent first the heinous, aggravating circum- cruel atrocious and Although prosecutor not use the term the did do not constitute error. comments stance. These argument aforethought” to in his “with malice jury jury, the instruc- he referred the the tions, (Okl.Cr.1988). P.2d 1215 51.765 correctly set out the intent element. which alleges prosecutor did not ade- also the Hooker Peters,52 support Silagy argument. plea guilty allega- his v. entered a of not to all the particulars in opinion, The district on which tions the bill of the court’s Hooker and that Peters,53 relies, proving allega- in State bore the Silagy burden the overruled v. beyond tions prosecu- reasonable doubt. Instruc- The Seventh Circuit concluded that tion 4 further stated that inno- deciding Hooker was in torial discretion whether or not to charges cent of all presumption and this penalty seek the death did not violate the guilt continued unless was established be- Eighth agree We Amendment.54 with the yond doubt if reasonable and that analysis of the Seventh Circuit and find this charges entertained a doubt as to the it proposition merit. is without to return a sentence life or without life error, In eighteenth his parole. Jury un- instruction 9 advised that argues anti-sympathy that in less out- circumstances struction, given during which was weighed mitigating circumstances the stage first trial incorporated penalty imposed.61 death could be These instructions, stage into the second was con properly instructions set out the bur- State’s stitutionally admits, invalid. As proof den of weighing and the standards for key Brown,55 upon, case he relies Parks v. the aggravating mitigating circum- Parks,56 in overturned stances.62 proper Such instructions were Saffle Saffle anti-sympathy Parks concluded in and sufficient. in constitutionally struction that ease was XX, In Hooker contends the remand, valid. On Tenth Circuit af proof weigh- instructions on burden of in firmed the defendant’s sentence.57 ing aggravating mitigating circum- anti-sympathy instruction stances was erroneous. This Court reviewed case is identical the instruction in to. Fox58 similar instructions Fox63 and found such State,59 cases, and Fisher v. In both of these proper. instructions Accordingly, Hooker’s this Court anti-sympa found no error proposition XX is without merit. thy Likewise, instruction. we find no error anti-sympathy with the instruction used in error, twenty-first proposition Hooker’s case.60 contends are instructions they defective fail adequately because ad- XIX, Proposition In argues jury they vise the impose that could life or failing provide that the trial court erred to life parole without even if aggravating the presumption an instruction on the of life outweigh circumstances mitigating the cir- during stage the of the second trial. Instruc cumstances. Hooker’s contentions are with- 4 jury tion instructed the that Hooker out given had merit. The instructions in this (C.D.Ill.1989). F.Supp. 52. 713 Supra. 1246 58. Cir.1990), (7th denied, (Old.Cr.1992), denied, -

53. 905 F.2d 986 cert. 498 59. 845 P.2d 1272 cert. 1110, 1024, 1106, -, 3014, U.S. 111 S.Ct 112 L.Ed.2d U.S. 113 S.Ct. 125 704 L.Ed.2d denied, 984, 1642, (1986). reh. 499 U.S. 111 S.Ct. 113 (1991). L.Ed.2d 737 Revilla, Ellis, supra; supra. See also Id. State, 273, (Okl.Cr.1986), 61. See Walker v. 723 P.2d 284 (10th Cir.1988). denied, 995, 599, 55. 860 F.2d 1545 rt. 479 U.S. 107 S.Ct. ce (1986). 484, 1257, 494 U.S. 108 L.Ed.2d (1990). Malone, 415 supra; 62. See Allen v. 103; 993, (Okl.Cr.), Johnson 1004 denied, rt. 484 U.S. 98 ce (10th Saffle, Cir.1991), 57. Parks v. 366 925 F.2d (1987). L.Ed.2d 167 denied, 112 S.Ct. L.Ed.2d reh. 63.Supra. L.Ed.2d found aggravating of the circumstances forth in list comport the law as set with case Johnson,64 argument jury. This was considered Johnson, the as- the defendant In rejected by petition for this Court giving in not court erred that the trial serted similarly We rehearing filed Romano.69 may jury the decline to instruction that an reject argument. Hooker’s circum- aggravating if the impose even outweigh mitigating the circum- stances the Proposition In XXV Hooker addresses that this con- concluded stances. This Court mitigating the appropriateness reweighing of that cept “is within an instruction subsumed aggravating any aggra- if of evidence aggravating or more if the finds one vating be to be circumstance should found may imposing they consider cirсumstances As this Court has found that none defective. could, i.e., penalty, they but do the death invalid, is aggravating circumstances to, impose death in that event.”65 not have this of error is not issue. Accordingly, given to the instructions adequate jury in case were SENTENCE REVIEW MANDATORY proper. O.S.Supp.1985, Pursuant addition, complains (1) In 701.13(C), § we must determine whether judge jury was advised that could imposed under of death were sentences they passion, if not reach impose prejudice a life sentence could of or the influence (2) factor, sentencing. arbitrary evidence on This other agreement unanimous a judge’s finding a supports trial statuto presented to this Court argument has been ry aggravating as enumerated circumstance that in and we have found in other cases O.S.Supp.1981, § 701.12. necessary nature are not or structions aggravating cir existence of four found the Likewise, we find Hooker’s claim proper.66 (1) felo previous conviction of a cumstances: meritless. ny involving the use or threat violence (2) another; creating great a risk knowingly XXII, Hooker com (3) person; more than one of death to erroneously per plains the instructions heinous, especially atrocious murder was ignore mitigating evi mitted cruel; probability aof the existence instructions Hooker asserts that the dence. would commit criminal acts that Hooker mitigating should have made evidence constituting continuing threat violence mitigating manda consideration supports society. find the evidence We required constitutionally tory. no There are all four circum existence of balancing aggravating and mit standards all of Upon careful consideration of stances. find that igating circumstances.67 We aggra the four mitigating evidence and instructions, whole, taken as trial court’s circumstances, vating find both sentences we comported with state and proper and were by the record of death to be substantiated constitutions.68 federal record, we appropriate. Based on by pas say influenced cannot XXIV, argues sion, arbitrary factor prejudice, or other 701.13(C), penalty § violates the in O.S.Supp.1985, statute 21 contrary Oklahoma’s requiring finding aggravating circumstances out by constitution Oklahoma weigh mitigating circumstances accompanied by general be a jury’s verdict Boltz, duty punishment”); assess see of its Supra. 64. Johnson, supra. supra; original). (emphasis See Ma- at 65. Id. 1003 Stephens, 67. Zant 102; Allen, lone, 715; 876 P.2d at 77 L.Ed.2d Brown, 73; Fisher, P.2d at 1278. P.2d Trice, Revilla, supra. supra; See 68. Trice, (such at 216 instructions at 384-385. jury during performance P.2d its "could distract imposing According- the sentence of death. Accordingly, propositions these will not be ly, warranting reversing we find no error addressed. modifying convictions or the sen- IT IS THE THEREFORE ORDER OF Judgment tences of death. The trial court’s THE COURT that the Petition for Rehear- Degree and Sentence for First Murder is ing is DENIED. The Clerk of the Court is

AFFIRMED. directed to issue the mandate forthwith. IT IS SO ORDERED. LUMPKIN, P.J., JOHNSON, V.P.J., and STRUBHAR, JJ., LANE and concur. A. Charles Johnson /s/ CHARLES A. JOHNSON ORDER DENYING PETITION FOR Presiding Judge REHEARING AND DIRECTING Chapel Charles S. /s/ MANDATE ISSUANCE OF CHARLES S. CHAPEL Vice-Presiding Judge January Gary Lumpkin L. /s/ John by jury Michael Hooker was tried GARY L. LUMPKIN before the Honorable Leamon Freeman in Judge County, District Court of Oklahoma Case F. James Lane /s/ No. CRF-88-1939. He was convicted of two JAMES F. LANE Degree counts of First Aforethought Malice Judge O.S.1991, § Murder in violation of 21 701.7.

During sentencing portion of Hooker’s Reta M. Strubhar /s/ (1) capital found Hooker was RETA M. STRUBHAR previously felony a involving convicted of Judge (2) person; use or threat of violence to the knowingly great created a risk of (3) person;

death to than more one the mur- heinous, atrocious, der especially or cru- еl; (4) probability there was a COOPER, individually Cassandra Pollard Hooker would commit criminal acts of vio- and on lence that behalf of Darshaun would constitute a Montrell continuing- Cooper, minor, society. Appellant, threat sentenced Hook- er to death for both murder convictions.

By published opinion issued on November MILLWOOD INDEPENDENT SCHOOL 14, 1994, this Court affirmed Hooker’s con- political DISTRICT NO. subdivi- victions and sentences. Hooker is now be- Oklahoma; sion of the State of James fore the Rehearing, Court on a Petition for individual, Appellees, Ester Neal an 3.14, Rules the Court Rule Criminal Appeals, 22 O.S.Supp.1993, App. Ch. Kelly, minor; Levi an individual Levi L. 3.14, According to Rule a Petition for Re- Kelly Kelly, parents and Bessie B. hearing shall only: be filed for two reasons Kelly, of Levi Defendants. (1) question That some decisive of the case duly No. by attorney submitted Court,

record has been overlooked Oklahoma, Appeals Court of That the decision is conflict with an Division No. 1. express controlling statute or decision to which the attention of this Court was not Aug. called either the brief ‍​​‌​‌‌‌​​‌​​‌​‌​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​​​​‌‌​​​​‌​​‌‍or in argu- oral Rehearing Aug. Denied ment. Certiorari Denied Nov. petition rehearing for supplement petition rehearing,

raises propositions. five propositions These

fail to meet the criteria set forth Rule 3.14.

Case Details

Case Name: Hooker v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jan 23, 1995

Citation: 887 P.2d 1351

Docket Number: F-88-915

Court Abbreviation: Okla. Crim. App.