*1
CR
if
importance following Oklahoma, Appellee. STATE of point can a structural error it even to No. D-2004-1098. 2006 OK e.g., in a Golden trial. See But now Court CR Appeals of Oklahoma. of Criminal Court away statutory provisions wants to brush Aug. ways it conceived new because course, This, of might leads be better. join in a I cannot result-
inconsistencies. designed to jurisprudence ensure oriented testify. Regardless always get to mothers are, comply they must witnesses It Legislature. rules established only wants view statutes seems the if the weight of “structural error” with the impedes the state. use of view Legislature update agree the should 8 I testimony. preserving our witness statutes on does, Legislature this Court is But until the authority to We amend statutes. without if only and determine interpret can them they are Constitutional.
¶ Fourth, im- there is no reason family offering miti- peach members who 2d. gating evidence. See OUJI-CR 9-22. family provide a defendant’s We cannot tri- deprives a safe haven that members illegal prior truth of their own ers of fact the It trier fact decide activates. witnesses, the trier credibility of the of the witnesses’ of fact must be informed finding. to make informed character LEWIS, Specially Concurs. Judge, parts agree State testimony mother should the defendant’s however, redacted; I concur with have prohibiting the defendant opinion testimony videotaped to the playing from mitigat- relevant denied the defendant ing evidence.
OPINION
CHAPEL,
Judge.
Presiding
by a
Edward
was tried
Michael
III,
jury and convicted Counts
Murder
I—
*3
Degree,
in
in violation of
O.S.
the First
1991,
701.7(A),
§
in the District Court of
County,
No.
Canadian
Case
CF-93-601.1
(1)
jury
as to
that
The
found
Count
knowingly
great
risk of death to
created
(2) probably
person,
than one
more
commit criminal acts of violence that
would
continuing
threat to soci-
would constitute
(1)
II,
ety; as to
know-
Count
great
risk of
to more
ingly created
(2)
person,
probably
one
commit
than
constitute
criminal acts of violence
(3)
society,
com-
continuing threat
pre-
in
or
mitted the murder
order
avoid
prosecution;
and as to
vent a lawful arrest
(1)
III,
knowingly
Count
created
per-
great
risk of death more than one
(2)
son,
probably
would commit criminal
acts of
that would constitute
con-
violence
tinuing
society. In
threat to
accordance
recommendation,
jury’s
the Honorable
Cunningham
Edward C.
sentenced
This Court
to death in all three counts.
sentences,
affirmed
convictions and
Supreme
States
denied
United
OK,
Henricksen,
Reno,
El
Mark
Julie
Hooper’s post-conviction
certiorari.2
Norman, OK,
Gardner,
attorneys for defen-
denied.3 The Tenth Circuit Court of
at trial.
dant
Appeals affirmed
federal district court’s
Stocker,
Attorney,
Cathy
Michael
District
grant
sentencing hearing
of a
based on
new
Reno,
Gahan,
Attorney, El
Assistant District
assistance of counsel.4
case
ineffective
OK, attorneys for the State at trial.
to the District Court of Cana-
was remanded
County
resentencing.
dian
for
Peters,
Quick,
Capital
Traci
Ann
J.
Lee
Division,
Indigent
Appeals
Direct
Oklahoma
proa
2 After the
filed
se
remand
Norman, OK,
System,
attorneys for
Defense
Plea
pleading,
Negotiated
for
“Motion
appellant
appeal.
on
Rights”, asking
the sentence
Waiver
Edmondson,
prop-
Attorney
upheld.5
This motion was
of death
W.A. Drew
General
Whittaker,
Hooper’s rights
Oklahoma,
erly
treated as waiver
Of
Robert
Assistant
OK,
General,
Attorney
City,
attor-
on
Oklahoma
2004,
April,
In
neys
appellee
appeal.
for
on
evidence.
Mullin,
(10th
June,
Cir.
4.
viewed and what evidence is. expert appointed (2) inquire The court must both court, competent. found (if se) attorney pro defendant and his separately considered Hoo- whether he she understands these jury trial per’s resentencing. waiver of a rights. hearing September A was held (3) inquire The court should also September trial court 8 and attorney attempted if he or she has penalty on all imposed the death *4 from the determine defendant whether sentencing hearing At the formal counts. any there exists evidence which could be 27, 2004, Hooper his October waived mitigate aggravating circum- used to the appellate review. proven beyond a stances reasonable doubt prosecution. the carefully has 3 This Court scruti (4) given, If such information has been the essentially cases in which a nized defendant attorney must what advise the court by waiving penalty, volunteers for the is; mitigating if evidence the defendant trial, jury rights presentation his to a of cooperate, attorney has refused to evidence, the appellate mitigating and direct re must relate that to the court. developed procedure view. We have a strict (5) must be in such cases. This followed trial inquire court must of a defen- ultimately designed to ensure that the dant and make a determination on the capacity defendant has the to understand the whether defendant record the understands between and to choice life know importance mitigating the of in a evidence ingly intelligently ap waive his scheme, capital sentencing understands peal requirements his Our ensure sentence.6 such evidence could be used to offset the capital rights defendant’s waiver proven by circumstances comports general set standard forth prosecution penal- of the death Supreme United Court to States de ty, failing present and the effect of capital may termine whether a defendant end appeals: “whether [the defendant] (6) being After assured the un- defendant capacity position appreciate and make concepts, derstands these must respect to continuing rational choice with inquire of the defendant he or whether she abandoning litigation further or on present to waive the desires such suffering hand he is from a other mitigating evidence. disorder, disease,
mental or defect which (7) Finally, the court should make may substantially affect to Grasso of the defen- pursuant of fact premises.”7 understanding rights.9 dant’s and waiver
¶4 outset, permitting waiver compliment Before 5 At we jury trial handling miti court on its proceedings. these evidence, gating must scrupulously order an The trial court followed these independent competency steps, evaluation.8 repeatedly After offered allow Hoo- per maHng change virtually the determination that a defendant is mind every at stage proceedings. a trial to waive of the We also com- steps pelled procedural posture must follow several ensure defen- to confirm the State, 504, State, 893 Wallace 1995 OK CR P.2d 8. Fluke v. P.3d 14 510; 567; Grasso, Grasso 1993 OK CR 857 P.2d at 806. P.2d 802, 806. Wallace, at 512-13. Peyton, Rees 384 U.S. 86 S.Ct. (1966). L.Ed.2d itself, hearing during the the trial court of- ease. received opportunity another below, fered have conducting a hearing and this Court is trial. continued to waive that of the death sen- mandatory sentence review engaged long in a right. The trial court proceeding. imposed While tences colloquy regarding with the defendant regard- confused the State seems somewhat definition, purpose nature and hearing, prosecu- ing the nature of this counsel that Hoo- evidence. Defense stated attorneys suggesting that appellate tors explicitly directed counsel entering guilty plea, friends, family, anyone experts, contact pursuant clear feder- court made purpose presenting mitigating for the else remand, conducting a it was resen- al court evidence, Coun- confirmed this. tencing hearing. court heard and oral presented the trial court with an sel evidence, as is common in trial considered proffer mitigating written includ- proceed- plea proceedings but not done ing expert which counsel proceedings ings. plea No were conducted allowed, present if and discussed other areas a guilty reflects that record nowhere investigate if which -counsel allowed. time. There was plea entered at Both and defense counsel assured already guilt, Hooper had question of as the pur- the court that crimes, plead and one cannot convicted pose importance guilty particular sentence. *5 it, right present Hooper and his to and un- beginning pro- 6 Before equivocally present he did not stated wish expert ceedings, appointed court an mitigating formally The trial court independent competency evalua- conduct an Hooper competent to found understand tion, urged to an eval- Hooper and submit proceeding, purposes nature and of the expert by by uation retained defense jury, right and to waive his waive expert court’s conduct- counsel as well. The present mitigating evidence. The expert’s thorough evaluation. The writ- ed Hooper had the trial court found that asked evaluation, competency ten which included resentencing hearing court to conduct record, that he Hoo- in the shows examined specifically prohibited from call- had counsel per thoroughly on his to understand presenting mitigating witnesses evi- life and the choice between hearing while dence. The was continued Hooper gave intelligent rational and reasons evidentiary court reviewed materials trial imprisonment. preferring for execution to life presented by the State. Hooper specifically noted did expert The ¶8 September At 30 continuation express regarding beliefs what delusional court, sentencing hearing, the trial began During if were happen he executed. Hooper’s again addressing by the issue hearing, counsel stated that he defense competency waive his trial. accepted expert’s competen- conclusion Hooper had confirmed that been Counsel Hooper had cy. Counsel noted that provider, sug- mental health seen expert a defense but did evaluated depres- gested he for chronic be medicated any expert re- provide the trial court However, only taking ar- Hooper sion. was that he had port.10 Defense counsel stated hearing. medication at the time of the thritis which contradicted the no evidence available Hooper felt was suf- stated Counsel compe- expert’s Hooper was conclusion fering depression, from chronic serious but trial. Based on the evidence tent stand proceed- purposes for of the it, de- the trial court made an initial before Hooper compe- ings. The trial court found competency. termination counsel and understand the tent assist ¶7 nature, consequences on sentencing hearing purposes was held The beginning proceedings. again The once offered September 8 and 2004. Before resentencing, Hooper hearing September Hooper severely profoundly mitigating prepared de- proffer evidence summary pressed. court includes a findings. expert expert's concluded defense right. again parole. waived The trial tences of life life without Hoo- opportunity per court offered said he The trial understood. court pro se motion, withdraw his March asked whether understood that he of death. asked for a sentence de- could change appel- his mind and ask an that motion clined to withdraw and stated he late court to allow him accept whatever sentence the trial waiving evidence that right. Hooper after As a appropriate. prelimi- court found final preferred said he understood and not to matter, nary the trial noted that Hoo- present mitigating evidence. stop the proceedings could ask to ¶ 11 The trial entered formal find- time in order to consult counsel. ings of fact on issues.12 The trial these decision, announcing its Before repeated findings regarding its formal of fact very specific lengthy court made a rec- waivers which had it ord as to what had evidence considered. September been entered on 8. The trial court presented by This evidence evidence included further entered formal of fact that the first State and defense and second importance aggra- understood the stages trial. It did not include vating evidence, statements, dire, voir opening impact victim present mitigating and that defense by attorneys. argument It also counsel investigate advised parties did not include evidence which both present mitigating evidence addition to the agreed be omitted. should The trial September evidence tendered on 8. The trial mitigation court also reviewed the tender of court found that understood that fail- by Hooper’s prepared defense coun- ure to evidence could re- resentencing. again sel for The trial court sult in penalty, the death un- asked he wished that evi- derstood the difference between life and behalf, presented dence to be on his death, and understood the different sen- court, not. said he did *6 might imposed. tences which The trial noting Hooper that opinion counsel’s suffered court made these to depression, Hooper from severe found com- Hooper competent determination that was to petent presentation to of mitigating waive presentation waive the mitigating evi- dence, and that waiver knowing that was and ¶ again once The trial court determined intelligent. knowingly that Hooper intelligently and was ¶ 12 reviewing After the evidence and waiving right mitigating evi- hearing argument, trial court made find- dence. The trial court noted that defense ings regarding allegations in the Bill of experienced accomplished counsel were and beyond Particulars. The trial court found a capital attorneys, Hooper and that pro- was I, reasonable as to doubt Counts II and ceeding against advice. In lengthy their III, Hooper knowingly great created a risk of conversation, court asked whether death to person. more than one As to all Hooper in pressured way had been counts, three advice, beyond the trial court disregard found counsels’ defined evidence Hooper reasonable in doubt that aggravation mitigation, commit and and asked criminal acts that of violence Hooper whether understood the constitute purposes of a continuing society, Hooper that threat based evidence.11 said he on the had not brutal pressured, issue, Hooper’s actions, been and that he callous nature understood the crimes, his that he his efforts to conceal the had discussed decision with coun- and evi- times, many prior unadjudicated sel dence of that he did not violent and wish to acts. As III, present to Counts II evidence. The trial court the trial court also Hooper beyond asked whether understood that found he reasonable doubt that facing penalty, was the death and the murders purpose differ- were committed for the ence avoiding between that sentence and preventing the sen- a lawful arrest or 11. Wallace, conducted court had this same con 893 P.2d at September hearing. versation in the considered, put ry would occur sentence review The court prosecution. record, had mitigating evidence which exchange
on the
was
appeal
filed. After
during
Hooper’s behalf
presented on
been
Hooper
the trial court found
understood the
trial,
proffer
as well as the
first
competent
proceedings and was
to waive his
for this sen-
the court
evidence tendered
right
appeal
to a direct
from the resentenc-
proceeding.
trial court found as
tencing
The
proceedings.
trial
court
further
that
circum-
a matter of law
Hooper
of experi-
found that
had the benefit
mitigat-
outweighed
stances were
capable capital counsel. The
enced and
again
The trial court
noted
ing evidence.
Hooper
found
understood the difference
that
to waive
competent
was
that
life
death and had made a
between
present mitigating
rights
trial
intelligent
of his
knowing and
waiver
against
had done so
the advice
appeal. This
shows that
meticulous record
trial
sentenced
of counsel. The
had the-
understand the
counts,
emphasized
on
but
to death
all
death,
choice
life and
knowT
between
were based
law
that
sentences
ingly
intelligently
ap-
waive his
facts,
Hooper’s personal wishes.
not on
sentence,
knowingly
peal
and did
IS Formal
was held
Octo-
intelligently
right.13
waive that
inquiry
After
of counsel and
ber
that Hoo-
Hooper, the trial court determined
Proposition
in
I that
claims
pro-
competent to continue with the
this Court’s current
standard
ceedings. The court determined that
inadequate to
that men-
these cases is
ensure
required by stat-
this Court was
tally ill
can make a valid waiver
defendants
mandatory
sentence review.
ute to conduct
present mitigating
Hooper’s right to
trial court discussed
essentially
appeal. Hooper
and to a direct
review,
appellate
preliminary
and made
court followed
law
concedes that
Hooper did not wish to
that
determination
determining
his sentences. The
initiate
direct
intelligently
waive
determined
pressured
any way
right to
to waive his
appeal.
claims
appeal. The trial court determined
questions regarding competen-
the standard
understood the difference be-
cy
adequate to
trial are not
deter-
stand
life
would be
tween
mentally
ill defendant can
mine whether
injection if the
put to death
lethal
*7
Hooper suggests
make a valid waiver.14
imposed the death
sentences.
currently
in
the factors
used
addition to
formally imposed
then
sentences
add
competency,
we
determine
I,
II and III.
Counts
(1)
suffering
person
from
more:
whether a
is
pen-
14 After
of the death
(2)
defect;
a
if that disease
mental disease or
alty,
Hooper’s
the trial court discussed
understanding
prevents
or
him from
defect
appeal
Hooper directed
those sentences.
legal
options
position
his
and the
available
counsel, writing,
not to file either a direct
(3)
him;
prevent
if
his condition does
and
appeal
post-convic-
from the
or a
sentences
position
understanding
legal
him
his
from
challenge.
questioned
tion
options,
prevent him
does it
available
he
determined that
making
among
appeal
from
rational choice
his
his
and that a mandato-
appropri-
Duty
time if
2004
P.3d
within a reasonable
89
510; Grosso,
1160; Wallace,
treated;
(d)
ately
893
857
person
P.2d
is a
if the defendant
at 806.
requiring
or
treatment for mental illness mental
Statutes,
as
the Oklahoma
retardation
defined in
questions
(a)
Those
are:
whether the defen-
and,
so,
why
specifically
in-
the defendant is
if
charges
dant understands the nature
against
(e) whether,
competent;
were
if the defendant
him; (b)
he can
with his
consult
treatment,
appropriate
he
released without
attorney
rationally
preparation
assist in the
danger
presently pose a
to himself or
defense; (c)
(a)
questions
if
of his
the answer
O.S.2001, 1175.3(E).
§
22
others.
(b)
no,
is
whether the defendant can attain
or
questions
options.15
suggests
He
that these
due to a mental
illness.
record does
necessary to fulfill the United
are
States
that defense
and a
indicate
counsel
defense
Supreme
requirement that a court de-
Court
expert
suffering
believed
to be
from
appreciate
can
termine whether
defendant
chronic,
However,
depression.
serious
nei-
position and
a rational choice
make
with
expert
ther
nor
counsel
the defense
believed
respect
continuing
abandoning
or
further
that
ability
his condition affected
litigation, or instead
from a
suffers
mental
expert
per-
make a valid waiver. The
disorder,
disease,
may
or
which
defect
sub-
independent competency
formed the
evalua-
However,
stantially
capacity.16
affect his
Hooper,
specifically
tion
found that
while de-
questions
Oklahoma’s combination of
which pressed,
present
symptoms
did
with
of a
competency,
must be asked
determine
illness,
mental
and offered
rational basis
specifically
capi-
which must
asked where
Further,
although
for his decisions.
statutory
tal
wish
defendants
to waive their
expert
State’s
evaluation answers the stan-
presentation mitigat-
competency questions,
dard
the evaluation
appeal,
comparable
are
explores Hooper’s competency specifi-
itself
Hooper’s proposed questions. A defendant
cally
penalty
as it relates to the death
pre-
whose mental disease or defect either
capital punishment
Hooper presents
issues.
understanding
him from
legal posi-
vents
suggesting
affidavits
options,
prevents
tion
available
him now,
receiving
after
medication and treat-
making
from
among
rational choice
his ment, he would make a different choice.18
options,
will
be found
under This
tells
material
the Court what
our current law.17
now,
might
options
do
faced with the same
he
had at
time of
Proposition
hearing.
claim
However,
substantially
it does not
rests
on his contention
show
mentally ill
is
his mental
unable to make a valid
at that
illness
waiver
time.
ability
thoroughly
affected his
The trial court
Hooper,
make
valid waiver.
examined
The record does not
expert
the claim that
considered the
evaluation and
information,
Hooper’s attorney’s
was unable to make a valid waiver
before de-
questions
15. These
request
based
those asked in
On November
filed a
Lantz,
Smyth
F.Supp.2d
Ross ex rel.
supplement
the record with evidence of his
Procunier,
(D.Conn.2005)
Rumbaugh
health,
bearing
ability
mental
on his
(5th Cir.1985),
implied
753 F.2d
make a valid waiver at
the time
his resentenc-
case,
Eighth
an
Circuit
Smith ex rel. Mo. Pub.
ing proceedings. We consider this material as
Armontrout,
Comm’n v.
812 F.2d
part
mandatory
Defender
of our
sentence review. While
(8th Cir.1987).
interpret
Those cases
ways
our
Rules limit
in which this Court will
standard,
Rees
which
asks if
defendant can
material,
normally
consider
that limitation
appreciate
position
make a
rational
applies only
appeal
pur
to cases in
respect
continuing
abandoning
choice with
3.11(B),
sued. Rule
Rules
Oklahoma
litigation,
further
or instead
suffers from men-
22, Ch.18,
Appeals,
App.
Court Criminal
Title
disease, disorder,
may
tal
or defect which
sub-
(2006) (extra-record
supple
offered
material
Rees,
stantially
314,
capacity.
affect his
384 U.S. at
may
only
ment an
be offered in connec
86 S.Ct. at
timely
tion
filed motion
new trial or a
*8
particular claim of ineffective assistance of trial
Rees,
16.
dence,
evidence,
required by
This Court
categories
which he
is
stat
review,
have
argues
mandatory
the trial court should not
conside
ute
conduct
sentence
claims
has waived these
red.19
to determine whether the death sentences
we do not consider them.
imposed
passion,
were
under the influence of
factor;
arbitrary
prejudice, or
other
Proposition Hooper
18 In
V
claims
statutory ag
if the
court’s
supported
that insufficient evidence
supported by
gravating circumstances are
continuing
ag
threat
finding
court’s
above,
the
As noted
our stan
evidence.22
beyond
gravating circumstance
a reasonable
is
dard
review whether the defendant had
aggrava
this
The trial court found
doubt.
the
to understand
choice be
(a)
by
supported
ting circumstance was
death,
tween life and
nature of
crimes them
brutal
callous
intelligently
waive
selves, including
gunshot wounds at
close
amply
find
sentence.23 We
the record
estab
range
head
face and
of all
vic
lishes
choice be
tims, and the circumstance that one victim
competent,
tween
that he was
life
shot;
(b)
fleeing at the time she was
knowingly, intelligently
and that
vol
and deliberate efforts to
conscious
untarily
waived his
destroy
and conceal the
conceal
evidence
and to appeal.24
crimes;
(c)
commission of the
evidence
meticulously
judge
put
on the rec
prior unadjudicated
by
acts of violence
ord all
evidence he
against
considered
his former wife. This Court
upheld
supported
aggravating
circumstances be-
use of the circumstances
Proposition
I
to believe
evi-
In
II
claims the trial
continue
pres-
unadjudicated
should
have allowed the State to
dence of
should not
offenses
aggravation by way
transcript
ent
continuing
aggra-
admitted to
threat
showing
that the
were
without
witnesses
un-
vating
even
circumstance.
find
without
Proposition III
claims
available.
In
supports the
sufficient evidence
reading transcripts
trial court erred
from a
finding
beyond
of each
circumstance
having
private
previous trial in
rather than
a reasonable doubt.
transcripts
public hearing.
Proposi-
In
read in
court should
tion IV
claims
O.S.2001,
701.13(C). Hooper
§
22. has also
testimony
Officer Abrahamsen's
have considered
argument,
waived
oral
oral
regarding statements made
a victim.
argument
necessary.
Application
Oral
His
*9
15,
1,
8, 2005,
State,
Argument,
Wackerly
2000
12 P.3d
November
v.
filed
DENIED.
20.
State,
1,
18;
Duty,
Malicoat
2000
CR
P.2d
OK
at 1161 n.
89 P.3d
4.
992
398;
State,
31,
383,
Fitzgerald,v.
CR
2002 OK
901,
P.3d
906 n. 26.
Grosso,
at
857 P.2d
806.
23.
16-17;
State,
Wackerly,
at
12 P.3d
Lockett
Fluke,
decision. Judge Cunningham was meticu- lous, thorough, repeatedly gave Appel- JOHNSON, C. A. JOHNSON and opportunity lant an change mind, LEWIS, concur. JJ.: Therefore, which he declined. I find the LUMPKIN, V.P.J.: concur in results. decision of factually this Court to be legally correct. LUMPKIN, Vice-Presiding Judge: concur in results.
¶ 1 I concur in the results reached However, Court in disagree this case. handling Court’s manner of parte the ex parte materials filings addressed 18. Ex are not they evidence in the case as have not subjected to an testing adversarial the trial court. Our Court rules and case law ties, frustration, 25. This includes the facts and problems impulse circumstances of con- themselves, Hooper's subsequent the crimes ac- completion projects; trol and history crimes, prior tions taken to conceal the treatment; alcohol and substance abuse and unadjudicated by Hooper. violent acts animals, family, loved is involved with is prison, helpful behaved well in and is Hooper currently This includes evidence that good. profound suffers from depression; serious and possibility suffers from other disorders; mental his the troubled circumstances of 27.Id. childhood; learning his childhood disabili-