Executed August 14, 2012 06:14 p.m. CDT by Lethal Injection in Oklahoma
27th murderer executed in U.S. in 2012
1304th murderer executed in U.S. since 1976
4th murderer executed in Oklahoma in 2012
100th murderer executed in Oklahoma since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(27) |
Michael Edward Hooper W / M / 21 - 39 |
Cynthia Lynn Roggy Jarman W / M / 23 Timothy Jarman W / M / 3 Tonya Jarman W / F / 5 |
Her Son Her Daughter |
10-27-04 |
Citations:
Hooper v. State, 947 P.2d 1090 (Okla.Crim. App. 1997). (Direct Appeal)
Hooper v. Turnbull, 957 P.2d 120 (Okl.Cr.App. 1998). (PCR)
Hooper v. State, 142 P.3d 463 (Okla.Crim.App. 2006). (Direct Appeal After Resentencing)
Hooper v. Mullin, 314 F.3d 1162 (10th Cir. 2002). (Habeas)
Hooper v. Workman, 446 Fed.Appx. 88 (10th Cir. 2011). (Habeas)
Final/Special Meal:
A small cranberry juice, a small coffee, a small portion of blackberries, a small portion of cherries, strawberries, a peach, an apricot, a plum, a pear, an apple, a banana and an orange.
Final Words:
"I just want to thank God for such an exuberant send-off," he said as other death-row inmates banged their cell doors in a tribute to the condemned man. "Also, my family for standing by me throughout all this. I appreciate them being there for me through the hardships."Hooper did not directly speak to the victims' family members but indicated that he sought their forgiveness. "I ask that my spirit be released directly into the hands of Jesus. I'm ready to go. I love you all."
Internet Sources:
Oklahoma Department of Corrections
Inmate: MICHAEL E HOOPER
ODOC# 236125
Birth Date: 07/09/1972
Race: White
Sex: Male
Height: 6 ft. 4 in.
Weight: 175 pounds
Hair: Brown
Eyes: Grey
Convictions:
CASE# County Offense Conviction Term Start
93-601 CANA Murder First Degree 07/25/1995 DEATH Death
93-601 CANA Murder First Degree 07/25/1995 DEATH Death
93-601 CANA Murder First Degree 07/25/1995 DEATH Death
"Killer who fought execution is put to death," by Tim Talley. (Associated Press 8/15/2012 4:21 AM)
OKLAHOMA CITY - An Oklahoma death-row inmate who tried to delay his execution by challenging the state's lethal-injection method was executed Tuesday evening, just hours after the U.S. Supreme Court refused to step in. Michael Hooper, convicted of the December 1993 shooting deaths of his former girlfriend and her two young children, received a lethal dose of drugs at the Oklahoma State Penitentiary in McAlester. Hooper, 40, was pronounced dead at 6:14 p.m., according to the Department of Corrections.
Hooper was sentenced to death for killing Cynthia Lynn Jarman, 23, and her two children, Tonya, 5, and Timmy, 3. Prosecutors said the victims were with Hooper in a pickup in a mowed field when he placed a 9 mm pistol under Cynthia Jarman's chin and shot her, then shot the children to prevent them from being witnesses. Each of the victims was shot twice in the head, and their bodies were buried in a shallow grave in a field northwest of Oklahoma City.
Strapped to a hospital gurney with intravenous tubes inserted into each of his arms Tuesday, Hooper spoke as his and his victims' relatives prepared to watch his execution through a window from separate rooms. "I just want to thank God for such an exuberant send-off," he said as other death-row inmates banged their cell doors in a tribute to the condemned man. "Also, my family for standing by me throughout all this. I appreciate them being there for me through the hardships."
Hooper did not directly speak to the victims' family members but indicated that he sought their forgiveness. "I ask that my spirit be released directly into the hands of Jesus. I'm ready to go," he said, then turned to family members, including his mother, brother and grandfather, and smiled as the drugs began to flow at 6:08 p.m. "I love you all," he said, then deeply exhaled and closed his eyes. Minutes later, he lay motionless.
The victims' family later issued a statement offering "our sincerest condolences" to Hooper's relatives. "This has been a long and arduous journey for all of the families," the statement said. "We hope to close this chapter in our lives."
Hooper had sued the state last month in an effort to halt his execution, claiming that Oklahoma's three-drug lethal injection protocol was unconstitutional. The lawsuit sought to force the state to have an extra dose of pentobarbital, a sedative, on hand during his execution. Pentobarbital is the first drug administered during lethal injections in Oklahoma and is used to render a condemned inmate unconscious. It's followed by vecuronium bromide, which stops the inmate's breathing, then potassium chloride to stop the heart. Hooper's attorney, Jim Drummond, had argued that if the sedative were ineffective, the remaining drugs could cause great pain in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.
The lawsuit also noted that other states have adopted a one-drug process using a fast-acting barbiturate that supporters say causes no pain. But his request to stall the execution was rejected by a federal judge, then upheld by a federal appeals court. And the U.S. Supreme Court rejected Hooper's request without elaboration just hours before his execution.
Hooper was the fourth death-row inmate executed in Oklahoma this year. Gary Roland Welch was executed Jan. 5 for fatally stabbing Robert Dean Hardcastle, 35, in 1994 in a dispute over drugs in Miami, Okla. Timothy Stemple was executed March 15 for killing his wife, Trisha Stemple, by beating her with a baseball bat and running over her with a pickup alongside U.S. 75 near Jenks in 1996. Michael Selsor was put to death May 1 for the 1975 shooting death of Clayton Chandler, a 55-year-old Tulsa convenience store manager.
"Convicted murderer executed at OSP," by Rachel Petersen. (August 14, 2012)
McALESTER — An Oklahoma State Penitentiary death row inmate, convicted of three counts of murder, was executed this evening in the prison’s execution chamber. Michael Edward Hooper, 40, received his death sentence and was executed for the 1993 shooting murders of his ex-girlfriend, Cynthia Lynn Jarman, age 23, and her two children, Tanya Kay Jarman, age 5, and Timmy Glen Jarman, age 3.
At approximately noon today, Hooper was served his last meal: A small cranberry juice, a small coffee, a small portion of blackberries, a small portion of cherries, strawberries, a peach, an apricot, a plum, a pear, an apple, a banana and an orange.
When all witnesses were seated and able to see Hooper on the execution gurney, he turned his head and smiled at his family. OSP Acting Warden Art Lightle asked Hooper if he had any last words. “I just want to thank God for such an exuberant sendoff,” Hooper said. “Also my family for standing by me throughout all this. I appreciate them being there for me through the hardships. “I’d like to ask forgiveness for all those who need it — you know who you are. “I ask that my spirit be released directly into the hands of Jesus and I’m ready to go. “I love you all.” Hooper’s mother said, “Amen.”
And then at 6:08 p.m., Lightle then said, “Let the execution begin.” The witness room was silent as Hooper was administered the lethal injections. At 6:09 p.m., Hooper looked over at his family one last time and said, “I love you all,” as his eyes fluttered and then shut. At 6:14 p.m. the attending physician pronounced Hooper’s time of death. A clergy member, sitting next to Hooper’s mother, turned to her and said, “He’s at peace. When you have the assurance that Michael had, he was ready to go.” Witnessing the execution were 15 members of the victim’s family; Hooper’s mother, brother and two clergy representatives, four law enforcement representatives and two media witnesses, as well as employees from the Oklahoma Department of Corrections.
Hooper was the 183rd death row inmate to be executed in Oklahoma.
After the execution was complete, members of the victims’ family released a written statement: “We would like to offer our sincerest condolences to the family of Mr. Hooper. This has been a long and arduous journey for all of the families. We hope to close this chapter in our lives. Tonya, Timmy and Cindy will always be in our hearts and in our minds. They will forever be missed and loved deeply.”
"Oklahoma woman wants to witness inmate’s execution, but Corrections Department won’t let her; The stepmother of the two children murdered by Oklahoma death row inmate Michael Hooper will not get to see the condemned killer’s execution," by Andrew Knittle. (August 11, 2012)
Hooper, whose bid to delay his execution was denied by a federal judge last week, is scheduled to die by lethal injection Tuesday. The inmate was convicted of killing Cynthia Jarman, 23, and her two young children, Tonya and Timmy Jarman, in Canadian County nearly 20 years ago. The victims’ bodies were found Dec. 10, 1993, after days of searching.
Alicia Jarman, who had recently married the children’s father at the time of the murders, wants to watch Hooper die when he is executed by the state of Oklahoma. She believes doing so will bring her a sense of closure and could possibly improve her overall mental health. Justin Jones, director of the state Corrections Department, sent a letter to Jarman’s attorney in early July. The short letter indicates that Jarman would be allowed to attend Hooper’s execution. “Your request for Ms. Alicia Jarman, stepmother of the Jarman children, to attend the execution of Michael Hooper will be approved,” Jones wrote.
Lesley Smith March, director of the state attorney general’s victim services unit, said the Corrections Department decided not to allow Jarman to attend the execution after speaking with her ex-husband, James Jarman. Smith March said James Jarman “strenuously” objected to his ex-wife’s attending the execution. She said the Corrections Department decided that because Jarman wasn’t related by blood or marriage to any of the victims, she couldn’t attend. “Normally, we meet with the family during the clemency hearing,” Smith March said. “And that may have caused some of the problems in this case, because Hooper waived his clemency hearing.”
Alicia Jarman had known the children for two years before marrying their father, James Jarman. Cynthia Jarman and the children were murdered while Alicia Jarman and her new husband were on their honeymoon in Colorado. “When we got back from our honeymoon, we were going to go after custody of the children,” she said. “When we told Tonya we were getting married, on Thanksgiving, she was … very happy.”
Alicia Jarman, who was 19 at the time of the murders, said she has suffered from post-traumatic stress disorder since the violent deaths of Tonya and Timmy Jarman, who were 5 and 3 respectively. “I’m having massive stress because of not being able to go,” she said. “I’m not sleeping at night, and when I do sleep, I wake up screaming.” Alicia Jarman said her ex-husband opposes her attendance because of “back child support” he owes. The couple had a child in 1998 and divorced the same year. “He owes right around $150,000 in back child support,” Alicia Jarman said. “He’s never had anything to do with the child.”
It is the child support issue — and nothing else — that is driving James Jarman to block her attendance, she said. “Up until the last year, he had told me that he wouldn’t mind me going to the execution,” she said. “But now that I’ve pushed the contempt of court charges for him not paying the child support, he’s decided that he doesn’t want me to go.” James Jarman doesn’t deny that he owes the $150,000 in child support or that he’s never been a part of the child’s life. But he said that has nothing to do with his decision to exclude his ex-wife from the execution.
James Jarman said his ex-wife called him in 2008 and asked him if she could attend Hooper’s execution, and he told her she could. Things changed, however, and he had a change of heart. “Since that time, she’s gone to school and become a grief counselor. … She’s trying to put that on her resume,” he said. “She didn’t even allow my children to come to the wedding. … She’s never had anything to do with them whatsoever. “She’s not a part of this family; she never was. She never cared about those children.”
Alicia Jarman said simply knowing that Hooper is dead — if and when he is put to death — isn’t enough for her. Hooper, who was 21 at the time of the murders, tried to get a federal judge to delay his execution by questioning the supply of the state’s execution drug pentobarbital. The judge denied his attorney’s request for a preliminary injunction.
“You never, ever get closure from something like this — ever,” she said. “I want to watch him die, so that I can, afterwards, take a deep breath, let it out and say, ‘OK, it’s done.’ ” The murder of the young children was so traumatic, so life-changing, she said, that she pursued a career as a counselor to help others. “This has impacted every aspect of my life,” she said. “I’ve been dealing with this for half my life.”
"Oklahoma executes man who killed ex-girlfriend and her two children," by Steve Olafson. (Aug 14, 2012)
(Reuters) - A man convicted of killing his former girlfriend and her two young children in 1993 and burying them in a shallow grave was executed on Tuesday in Oklahoma after an unsuccessful last-ditch challenge to the state's three-drug execution protocol.
Michael Hooper, 39, was convicted of driving his ex-girlfriend Cynthia Jarman and her children, Timothy, 3, and Tonya, 5, to a field where he shot each of them twice in the head and then buried them in December 1993. Their bodies were found three days later. Police reports showed that Hooper and Jarman previously had been in a "physically violent relationship," the state attorney general's office said.
Hooper, who was the fourth person executed in Oklahoma this year and the 27th in the nation, was pronounced dead at 6:14 p.m. local time at the state prison in McAlester, a prison spokesman said. Hooper was first sentenced to death in 1995, but a federal appeals court overturned the sentence seven years later, ruling that his counsel had been ineffective. He waived his right to be sentenced by a jury at a new hearing. A judge re-imposed the death sentence in 2004.
Hooper had waived his right to appear before the state pardons and parole board, but last week attempted to block his execution by challenging the three-drug protocol used to execute condemned killers in Oklahoma. He had contended that the protocol used had the potential to cause great pain and was unconstitutional. A federal judge in Oklahoma City and a federal appeals court rejected his challenge. Earlier this year, Oklahoma was down to one dose of pentobarbital, one of three drugs the state uses to execute condemned inmates. It obtained 20 more doses since then, state prison spokesman Jerry Massie said.
The family members of Hooper's three victims released a statement that extended their condolences to Hooper's family. "This has been a long, arduous journey for all of the families," the statement said. "Tonya, Timmy and Cindy will always be in our hearts and our minds. They will forever be missed and loved deeply."
Hooper requested a variety of fruit along with cranberry juice and coffee for his last meal, Massie said. "I just want to thank God for such an excellent sendoff," Hooper said before the execution. "Also, my family, for standing by me throughout all this. I appreciate their being there for me through the hardships." Hooper also asked for forgiveness "for all those that need it - you know who you are." "I ask that my spirit be released directly into the hands of Jesus and I'm ready to go. I love you all."
Oklahoma Coalition to Abolish Death Penalty
Michael Edward Hooper met Cynthia Jarman in early 1992, and they dated through the summer of 1993. Their relationship was physically violent, and Hooper threatened to kill Cindy on several occasions. Cindy had called the police during their fights on more than one occasion. At one point, each had a victim's protective order against the other.
In July 1993, Cindy began dating Hooper's friend, Bill Stremlow. Hooper bought a Smith & Wesson 9mm pistol on July 15, 1993. During a traffic stop the next day the Oklahoma City Police Department [OCPD] confiscated the gun. The OCPD returned the gun on October 23, 1993, but kept the ammunition. Hooper went target shooting with friends in fields northwest of Oklahoma City the day he bought the gun and after it was returned. He took the gun when he worked out-of-state in late October and November and refused a co-worker's offer to buy it.
A day or two before the murders, Hooper showed a 9mm pistol to a neighbor. In November, three weeks before the murders, Cindy and her children began living with Stremlow. He told Cindy that Hooper was not welcome in their home. Before moving in with Stremlow, Cindy told a friend that Hooper had previously threatened to kill her if she ever lived with another man. On December 6, 1993, Cindy confided in a friend that she wanted to be with Hooper one last time and then stop seeing him.
On the morning of December 7, 1993, Cindy and her children dropped Stremlow off at work and Cindy borrowed his truck for the rest of the day. Cindy picked up her daughter, Tonya, at school at 3:30 that afternoon. At that time, Tonya's teacher saw Tonya get into Stremlow's truck next to a white man who was not Stremlow. Cindy failed to pick up Stremlow from work that evening as planned, and Stremlow never saw Cindy again. Cindy had Stremlow's only house key and he had to borrow his landlord's key to get in his house that night. Later that night, Stremlow's truck was found burning in a field in northwest Oklahoma City. The truck's windows were broken out. An accelerant had been used to set the truck on fire. Stremlow recovered the vehicle the next day.
When Stremlow returned to his house, although there were no signs of forced entry, a dresser drawer was disturbed, a Jim Beam whiskey bottle was on the dresser, and ten dollars in cash was missing. Hooper's fingerprints were later found on the Jim Beam bottle, and other evidence showed Hooper and Cindy drank that brand of whiskey. Cindy and her children were reported missing on December 9. Police attempted to interview Hooper; he failed to come to the station and denied seeing Cindy for the past six months. Hooper appeared nervous and had a fresh scratch on his arm. Also on December 9, an area rancher noticed damage to his gate leading to a northwest Oklahoma City field. Inside the field he found broken glass, tire tracks, a bloody sock and a pool of blood. After hearing the missing persons report, the rancher contacted police. The next day police searched the field and found broken glass, tire tracks, a footprint, shell casings, a child's bloody sock, a pool of blood near a tree with a freshly broken branch, a blue fiber near the tree, and a shallow grave site covered by limbs, leaves and debris. The grave appeared to be soaked with gasoline. Tonya, Timmy and Cindy were buried atop one another. Each victim had been shot twice in the head or face. There was a hole in the hood of Tonya's blue and purple jacket, and the white fiber lining protruded. A 9mm bullet pinned a white fiber to a branch on the grave. The branch appeared to have been broken from the tree near the pool of blood. The fibers were consistent with the white fibers in Tonya's jacket. Although investigators never recovered the bullets, the wounds were consistent with nine millimeter ammunition.
Police arrested Hooper and searched his parents' home. The police recovered a nine millimeter weapon Hooper had purchased several months prior to the murders. Police also recovered two shovels with soil consistent with soil from the grave site, two gas cans, and broken glass consistent with glass found in Tonya's coat and near the gate at the field. Police found a 9 mm bullet in Hooper's pocket. Police officers also seized Hooper's tennis shoes. The shoes made prints similar to those found at the murder scene, and DNA tests revealed the presence of blood consistent with Cindy's blood on the shoes. At trial, a ballistics expert testified that shell casings from the crime scene matched casings fired from Hooper's weapon. Hooper's former wife testified that Hooper was familiar with the field where the bodies were found, and that he previously had visited the field with her on several occasions.
Based on this evidence, the jury convicted Hooper of three counts of first degree murder. During the capital sentencing proceeding, the jury found two aggravating factors existed with respect to all three victims: (1) Hooper had created a great risk of death to more than one person, and (2) Hooper was a continuing threat to society. Additionally, the jury found a third aggravating factor existed with respect to Tonya Jarman: Hooper had committed the murder to avoid arrest or prosecution for the murder of Cynthia Jarman. After considering Hooper's mitigating evidence, the jury imposed the death sentence for each count.
UPDATE: It’s been almost 19 years since Barbie Jarman’s grandchildren were shot to death along with their 23-year-old mother, but she still has vivid memories of the children whom she described as so very, very precious. "The fact that they were murdered doesn’t lessen what they were to you,” Jarman said. “They still are very, very close to my heart. That doesn’t ever change.” For family members of the victims, Hooper’s execution will culminate a long journey that began with the trauma of learning about their violent deaths. “It’s not going to change what happened. But justice will be served,” said Diane Roggy, Cynthia Jarman’s mother and grandmother to her children. “The loss is still there. The pain never goes away,” said Cynthia’s sister, Renee Weber. “It will never be over, in my mind, until they close my casket,” Roggy said. Cynthia Jarman, a cosmetologist, “was just a beautiful person, full of life,” Weber said. “She was a very good mom. Timmy was a very bubbly little kid. He was just very playful,” she added. “Tonya was very smart.” The children’s uncle, Jeramy Jarman, said they “were amazing kids. These were my first experiences as an uncle. I was extremely proud. We had a lot of fun.” Jeramy Jarman said that after almost 19 years, he is ready for the case to come to an end. “This man is just an animal as far as I’m concerned."
Oklahoma Attorney General (News Release)
News Release
08/14/2012
Michael Edward Hooper - 6 p.m. Oklahoma State Penitentiary in McAlester
Name: Michael Edward Hooper
DOB: 07/09/72
Sex: Male
Age at Date of Crime: 21
Victim(s): Cynthia Lynn Jarman, 23, Tonya Kay Jarman, 5, Timmy Glen Jarman, 3
Date of Crime: 12/07/93 (bodies discovered 12/10/93)
Date of Sentence: 07/25/95
Resentencing: 10/27/04
Crime Location: In a field near 164th and Morgan Road
Judge: Edward C. Cunningham (1st trial and re-sentencing)
Prosecuting: Cathy Stocker and Michael Gahan (1st trial and re-sentencing)
Defending: Mitchell Lee and Richard A. Krough (1st trial )
Mark Hendricksen and Julie Gardner (re-sentencing)
Circumstances Surrounding Crime:
Hooper was convicted and sentenced to death for the murders of his ex-girlfriend, Cynthia Lynn Jarman, 23, and her two children, Tonya Kay Jarman, 5, and Timmy Glen Jarman, 3, on Dec. 7, 1993. Hooper drove Jarman and her children to a field in Canadian County where he shot Jarman twice, and then shot her son, Timmy, twice in the head. Five-year-old Tonya witnessed the shootings and escaped from the truck. Hooper chased her through the woods, firing once, missing the girl. Hooper caught up with Tonya and shot her twice in the head. Police found all three bodies in a shallow grave. The victims had been missing for several days before being discovered. Police records, including domestic violence reports, show that Hooper and Jarman had previously been in a physically violent relationship.
The federal court determined Hooper’s counsel provided ineffective assistance during the punishment stage of his trial and overturned the death sentences. In a 2004 hearing, Hooper was once again sentenced to death.
Statement from Attorney General Scott Pruitt: “Michael Hooper was found guilty by a jury of his peers and given the death sentence for ending the lives of a young mom and her two innocent children,” Attorney General Scott Pruitt said. “My thoughts are with the families of Cynthia, Tonya and Timmy for what they have endured for nearly 20 years.”
Wikipedia: Oklahoma Executions
A total of 98 individuals convicted of murder have been executed by the State of Oklahoma since 1976, all by lethal injection:
1. Charles Troy Coleman 10 September 1990 John Seward
2. Robyn Leroy Parks 10 March 1992 Abdullah Ibrahim
3. Olan Randle Robinson 13 March 1992 Shiela Lovejoy, Robert Swinford
4. Thomas J. Grasso 20 March 1995 Hilda Johnson
5. Roger Dale Stafford 1 July 1995 Melvin Lorenz, Linda Lorenz, Richard Lorenz, Isaac Freeman, Louis Zacarias, Terri Horst, David Salsman, Anthony Tew, David Lindsey
6. Robert Allen Brecheen [1][2][3] 11 August 1995 Marie Stubbs
7. Benjamin Brewer 26 April 1996 Karen Joyce Stapleton
8. Steven Keith Hatch 9 August 1996 Richard Douglas, Marilyn Douglas
9. Scott Dawn Carpenter 7 May 1997 A.J. Kelley
10. Michael Edward Long 20 February 1998 Sheryl Graber, Andrew Graber
11. Stephen Edward Wood 5 August 1998 Robert B. Brigden
12. Tuan Anh Nguyen 10 December 1998 Amanda White, Joseph White
13. John Wayne Duvall 17 December 1998 Karla Duvall
14. John Walter Castro 7 January 1999 Beulah Grace, Sissons Cox, Rhonda Pappan
15. Sean Richard Sellers 4 February 1999 Paul Bellofatto, Vonda Bellofatto, Robert Bower
16. Scotty Lee Moore 3 June 1999 Alex Fernandez
17. Norman Lee Newsted 8 July 1999 Larry Buckley
18. Cornel Cooks 2 December 1999 Jennie Elva Ridling
19. Bobby Lynn Ross 9 December 1999 Steven Mahan
20. Malcolm Rent Johnson 6 January 2000 Ura Alma Thompson
21. Gary Alan Walker 13 January 2000 Eddie O. Cash, Valerie Shaw-Hartzell, Jane Hilburn, Janet Jewell, Margaret Bell Lydick, DeRonda Gay Roy
22. Michael Donald Roberts 10 February 2000 Lula Mae Brooks
23. Kelly Lamont Rogers 23 March 2000 Karen Marie Lauffenburger
24. Ronald Keith Boyd 27 April 2000 Richard Oldham Riggs
25. Charles Adrian Foster 25 May 2000 Claude Wiley
26. James Glenn Rodebeaux 1 June 2000 Nancy Rose Lee McKinney
27. Roger James Berget 8 June 2000 Rick Lee Patterson
28. William Clifford Bryson 15 June 2000 James Earl Plantz
29. Gregg Francis Braun 10 August 2000 Gwendolyn Sue Miller, Barbara Kchendorfer, Mary Rains, Pete Spurrier, Geraldine Valdez
30. George Kent Wallace 10 August 2000 William Von Eric Domer, Mark Anthony McLaughlin
31. Eddie Leroy Trice 9 January 2001 Ernestine Jones
32. Wanda Jean Allen 11 January 2001 Gloria Jean Leathers
33. Floyd Allen Medlock 16 January 2001 Katherine Ann Busch
34. Dion Athansius Smallwood 18 January 2001 Lois Frederick
35. Mark Andrew Fowler 23 January 2001 John Barrier, Rick Cast, Chumpon Chaowasin
36. Billy Ray Fox 25 January 2001
37. Loyd Winford Lafevers 30 January 2001 Addie Mae Hawley
38. Dorsie Leslie Jones, Jr. 1 February 2001 Stanley Eugene Buck, Sr.
39. Robert William Clayton 1 March 2001 Rhonda Kay Timmons
40. Ronald Dunaway Fluke 27 March 2001 Ginger Lou Fluke, Kathryn Lee Fluke, Suzanna Michelle Fluke
41. Marilyn Kay Plantz 1 May 2001 James Earl Plantz
42. Terrance Anthony James 22 May 2001 Mark Allen Berry
43. Vincent Allen Johnson 29 May 2001 Shirley Mooneyham
44. Jerald Wayne Harjo 17 July 2001 Ruther Porter
45. Jack Dale Walker 28 August 2001 Shely Deann Ellison, Donald Gary Epperson
46. Alvie James Hale, Jr. 18 October 2001 William Jeffery Perry
47. Lois Nadean Smith 4 December 2001 Cindy Baillee
48. Sahib Lateef Al-Mosawi 6 December 2001 Inaam Al-Nashi, Mohamed Al-Nashi
49. David Wayne Woodruff 21 January 2002 Roger Joel Sarfaty, Lloyd Thompson
50. John Joseph Romano 29 January 2002
51. Randall Eugene Cannon 23 July 2002 Addie Mae Hawley
52. Earl Alexander Frederick, Sr. 30 July 2002 Bradford Lee Beck
53. Jerry Lynn McCracken[10] 10 December 2002 Tyrrell Lee Boyd, Steve Allen Smith, Timothy Edward Sheets, Carol Ann McDaniels
54. Jay Wesley Neill 12 December 2002 Kay Bruno, Jerri Bowles, Joyce Mullenix, Ralph Zeller
55. Ernest Marvin Carter, Jr. 17 December 2002 Eugene Mankowski
56. Daniel Juan Revilla 16 January 2003 Mark Gomez Brad Henry
57. Bobby Joe Fields 13 February 2003 Louise J. Schem
58. Walanzo Deon Robinson 18 March 2003 Dennis Eugene Hill
59. John Michael Hooker 25 March 2003 Sylvia Stokes, Durcilla Morgan
60. Scott Allen Hain 3 April 2003 Michael William Houghton, Laura Lee Sanders
61. Don Wilson Hawkins, Jr. 8 April 2003 Linda Ann Thompson
62. Larry Kenneth Jackson 17 April 2003 Wendy Cade
63. Robert Wesley Knighton 27 May 2003 Richard Denney, Virginia Denney
64. Kenneth Chad Charm 5 June 2003 Brandy Crystian Hill
65. Lewis Eugene Gilbert II 1 July 2003 Roxanne Lynn Ruddell
66. Robert Don Duckett 8 July 2003 John E. Howard
67. Bryan Anthony Toles 22 July 2003 Juan Franceschi, Lonnie Franceschi
68. Jackie Lee Willingham 24 July 2003 Jayne Ellen Van Wey
69. Harold Loyd McElmurry III 29 July 2003 Rosa Vivien Pendley, Robert Pendley
70. Tyrone Peter Darks 13 January 2004 Sherry Goodlow
71. Norman Richard Cleary 17 February 2004 Wanda Neafus
72. David Jay Brown 9 March 2004 Eldon Lee McGuire
73. Hung Thanh Le 23 March 2004 Hai Hong Nguyen
74. Robert Leroy Bryan 8 June 2004 Mildred Inabell Bryan
75. Windel Ray Workman 26 August 2004 Amanda Hollman
76. Jimmie Ray Slaughter 15 March 2005 Melody Sue Wuertz, Jessica Rae Wuertz
77. George James Miller, Jr. 12 May 2005 Gary Kent Dodd
78. Michael Lannier Pennington 19 July 2005 Bradley Thomas Grooms
79. Kenneth Eugene Turrentine 11 August 2005 Avon Stevenson, Anita Richardson, Tina Pennington, Martise Richardson
80. Richard Alford Thornburg, Jr. 18 April 2006 Jim Poteet, Terry Shepard, Kevin Smith
81. John Albert Boltz 1 June 2006 Doug Kirby
82. Eric Allen Patton 29 August 2006 Charlene Kauer
83. James Patrick Malicoat 31 August 2006 Tessa Leadford
84. Corey Duane Hamilton 9 January 2007 Joseph Gooch, Theodore Kindley, Senaida Lara, Steven Williams
85. Jimmy Dale Bland 26 June 2007 Doyle Windle Rains
86. Frank Duane Welch 21 August 2007 Jo Talley Cooper, Debra Anne Stevens
87. Terry Lyn Short[4] 17 June 2008 Ken Yamamoto
88. Jessie Cummings 25 September 2008 Melissa Moody
89. Darwin Brown 22 January 2009 Richard Yost
90. Donald Gilson 14 May 2009 Shane Coffman
91. Michael DeLozier 9 July 2009 Orville Lewis Bullard, Paul Steven Morgan
92. Julius Ricardo Young 14 January 2010 Joyland Morgan, Kewan Morgan
93. Donald Ray Wackerly II 14 October 2010 Pan Sayakhoummane
94. John David Duty 16 December 2010 Curtis Wise
95. Billy Don Alverson 6 January 2011 Richard Kevin Yost
96. Jeffrey David Matthews 11 January 2011 Otis Earl Short Mary Fallin
97. Gary Welch 5 January 2012 Robert Dean Hardcastle
98. Timothy Shaun Stemple 15 March 2012 Trisha Stemple
99. Michael Bascum Selsor 1 May 2012 Clayton Chandler
100. Michael E. Hooper 14 August 2012 Cynthia Jarman, Timothy Jarman, Tonya Jarman
Hooper v. State, 947 P.2d 1090 (Okla.Crim. App. 1997). (Direct Appeal)
Defendant was convicted in the District Court, Canadian County, Edward C. Cunningham, J., of three counts of murder in the first degree, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Chapel, P.J., held that: (1) police officer's affidavits were sufficient to support arrest and search warrants; (2) evidence regarding prior traffic stop of defendant was admissible; (3) defendant invited testimony concerning his violent relationship with his ex-wife; (4) evidence concerning defendant's fight with victim and his threats towards victim were admissible under state of mind exception to hearsay rule; (5) evidence was sufficient to support conviction; (6) victim impact evidence was properly admitted; (7) great risk of death to more than one person aggravating circumstance could apply to multiple murder; (8) evidence supported avoiding or preventing lawful arrest or prosecution aggravating circumstance; (9) defendant was not denied effective assistance of counsel; and (10) death sentence was appropriate. Affirmed. Lane, J., filed opinion concurring in result. Lumpkin, J., concurred in result.
CHAPEL, Presiding Judge.
Michael Edward Hooper was tried by a jury and convicted of three counts of Murder in the First Degree, in violation of 21 O.S.1991, § 701.7(A), in the District Court of Canadian County, Case No. CF–93–601. On Counts I and III the jury found Hooper knowingly created a great risk of death to more than one person and probably would commit criminal acts of violence that would constitute a continuing threat to society; on Count II, that Hooper knowingly created a great risk of death to more than one person, probably would commit criminal acts of violence that would constitute a continuing threat to society, and committed the murder in order to avoid or prevent a lawful arrest or prosecution. In accordance with the jury's recommendation, the Honorable Edward C. Cunningham sentenced Hooper to death on each count. Hooper has perfected his appeal of these convictions and sentences and raises sixteen propositions of error. After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find that neither reversal nor modification is required under the law and evidence. We affirm Hooper's Judgments and Sentences.
Hooper was convicted of killing his ex-girlfriend Cynthia Jarman [Cindy] and her two children, five-year-old Tonya and three-year-old Timmy. Hooper and Cindy met in 1992 and dated through the summer of 1993. On more than one occasion the couple fought and Cindy called police. At one point each had a victim's protective order against the other. Several times Hooper threatened to kill Cindy. In October or November, 1993, Cindy and her children moved in with Bill Stremlow. He told Cindy that Hooper was not welcome in their home. On December 6, 1993, Cindy told a friend she wanted to be with Hooper one last time and then stop seeing him.
Hooper bought a Smith & Wesson 9mm pistol on July 15, 1993. During a traffic stop the next day the Oklahoma City Police Department [OCPD] confiscated the gun. The OCPD returned the gun on October 23, 1993, but kept the ammunition. Hooper went target shooting with friends in fields northwest of Oklahoma City the day he bought the gun and after it was returned. He took the gun when he worked out-of-state in late October and November and refused a co-worker's offer to buy it. On December 6 or 7, 1993, Hooper showed a 9mm pistol to a neighbor.
On December 7, 1993, Cindy and her children drove Stremlow to work and borrowed his truck. Tonya got out of school at 3:30 p.m. Cindy was about fifteen minutes late to pick up Tonya; Tonya's teacher saw her get in Stremlow's truck next to a white male who was not Stremlow. Cindy failed to pick up Stremlow after work and he never saw her again; Cindy had Stremlow's only house key and he had to borrow his landlord's key to get in his house that night. Stremlow's truck was found burning in a field in northwest Oklahoma City the night of December 7. He recovered it the next day. Accelerant, probably gasoline, had been used to set the truck on fire and the windows were broken out. Stremlow returned to his house December 10; although there were no signs of forced entry, a dresser drawer was disturbed, a Jim Beam whiskey bottle was on the dresser, and ten dollars in cash was missing. Hooper's fingerprints were on the Jim Beam bottle, and other evidence showed Hooper and Cindy drank that brand of whiskey.
Cindy and her children were reported missing on December 9. Police attempted to interview Hooper; he failed to come to the station and denied seeing Cindy for the past six months. Hooper appeared nervous and had a fresh scratch on his arm. Also on December 9, an area rancher noticed damage to his gate leading to a northwest Oklahoma City field. Inside the field he found broken glass, tire tracks, a bloody sock and a pool of blood. After hearing the missing persons report, the rancher contacted police. The next day police searched the field and found broken glass, tire tracks, a footprint, shell casings, a child's bloody sock, a pool of blood near a tree with a freshly broken branch, a blue fiber near the tree, and a grave site covered by limbs, leaves and debris. The grave appeared to be soaked with gasoline. Tonya, Timmy and Cindy were buried atop one another. Each victim had been shot twice in the head. There was a hole in the hood of Tonya's blue and purple jacket, and the white fiber lining protruded. A 9mm bullet pinned a white fiber to a branch on the grave. The branch appeared to have been broken from the tree near the pool of blood.
Police arrested Hooper and searched his parents' house. They found the 9mm pistol, two shovels with soil consistent with soil from the grave site, two gas cans, and broken glass consistent with glass found in Tonya's coat and near the gate. Police found a 9mm bullet in Hooper's pocket. His shoe print was similar to the footprint at the scene and DNA evidence showed blood on Hooper's shoes was consistent with Cindy's blood. Shell casings found where Hooper went target shooting matched bullets shot from his gun and casings found at the crime scene. In the past, Hooper and his ex-wife Stefanie Duncan had regularly visited the field where the bodies were found.
PRETRIAL ISSUES
Hooper argues in his first two propositions that the affidavits supporting the arrest and search warrants were insufficient, and the evidence seized through those warrants should have been suppressed. Hooper has waived review of all but plain error. He neither challenged his arrest nor moved to suppress evidence obtained as a result of his arrest. Failure to raise a timely objection to the legality of an arrest before entering a plea waives review.FN1 Hooper also failed to move to quash the search warrant or suppress the evidence seized under the search warrant; nor did he object when that evidence was introduced at trial. On review, this Court will determine whether the magistrate had a substantial basis for concluding probable cause existed to believe Hooper committed the crimes, looking at the totality of the circumstances contained in the affidavits supporting the warrants.FN2 A review of the affidavit as a whole may give sufficient reason to consider the information in the affidavit credible.FN3 Affidavits are presumed valid. Where an affidavit is expressed in positive terms, a defendant may not go behind that language to show the officer did not have knowledge of the allegations set forth.FN4 To challenge the substance of an affidavit Hooper must establish by a preponderance of the evidence that the affiant committed perjury or acted with reckless disregard for the truth.FN5
FN1. Clayton v. State, 840 P.2d 18, 28 (Okl.Cr.1992), cert. denied, 507 U.S. 1008, 113 S.Ct. 1655, 123 L.Ed.2d 275 (1993); Raymer v. City of Tulsa, 595 P.2d 810, 812 (Okl.Cr.1984). FN2. Langham v. State, 787 P.2d 1279, 1281–82 (Okl.Cr.1990); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). FN3. Sockey v. State, 676 P.2d 269, 270 (Okl.Cr.1984). FN4. Martin v. State, 804 P.2d 1143, 1145 (Okl.Cr.1991); Franks v. Delaware, 438 U.S. 154, 172, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). FN5. Martin, 804 P.2d at 1145.
In Proposition I Hooper alleges the arrest warrant was defective because the facts set forth in the affidavit did not establish probable cause that he committed the crimes. On December 13, 1993, Canadian County issued a warrant for Hooper, and police arrested him at his parent's home. After the arrest, police seized Hooper's tennis shoes and a 9mm bullet found in his pocket, and photographed a scratch on Hooper's arm. The shoes were later compared to a footprint at the scene, and DNA testing determined blood on one shoe was probably Cindy's. The affidavit accompanying the warrant includes the following information: (1) Hooper was arrested on July 16, 1993 for possession of a Smith & Wesson 9mm handgun, which was released to him on October 29, 1993 (while the OCPD Property Room retained the ammunition); (2) the victims' bodies dead of multiple gunshot wounds were discovered in a grave in Canadian County on December 12, 1993, and 9mm casings and a bullet were discovered near the grave; (3) the 9mm casings matched the casings from the OCPD property room; (4) Hooper was Cindy's ex-boyfriend and had been violent towards her; (5) Hooper, in the course of the missing persons investigation, declined to speak to officers on the advice of counsel; FN6 and (6) on December 6 or 7, Hooper showed a witness a 9mm semi-automatic handgun. FN6. At trial the evidence that Hooper refused to talk on the advice of counsel was not admitted.
Hooper first claims the magistrate could not have found this affidavit sufficient because it (a) neither includes the source of the allegations in item No. 4 nor indicates that the information was within the affiant's personal knowledge; (b) does not name the interviewing officers in item No. 5; and (c) neither alleges whether an informant existed nor indicates a record of reliability. A review of the entire affidavit shows these complaints are without merit. The affidavit begins by stating “the facts known to the affiant”, and thus on its face does not indicate that an informant gave the information to Officer Presley. Officer Presley's failure to name the interviewing officers alleged to have spoken to Hooper is not fatal, since the magistrate had a basis for determining the veracity and reliability of law enforcement officers. Taken as a whole, the affidavit provides enough information to form a substantial basis for probable cause. There is no plain error here.
Hooper next complains that item No. 3 was incorrect in averring the site shell casings matched the property room casings, that the statement was reckless, and that Officer Presley knew or should have known the statement was false since the OCPD bullets had not been fired and thus had no casings to compare. Hooper does not establish that Officer Presley either committed perjury or acted with a reckless disregard for the truth. He suggests that Officer Presley must have known there could be no forensic match with the bullets in the Oklahoma City Police Department property room because those bullets had not been fired. No evidence supports this assertion. The record before us shows the casings found at the scene were compared with casings found where Hooper practiced target shooting, and, later, with a casing from a bullet the examiner fired from Hooper's gun. Hooper claims that the live rounds in the property room could not have matched any casings, because the live rounds could not have had extractor marks to compare with marks on the casings. Nothing in the record supports this assertion. Officer Presley set forth facts he believed true. At best this shows Officer Presley made a good faith mistake acting on reliable information. Hooper's assertion that Presley must have known the casings had not been matched to Hooper's gun does not establish perjury or reckless disregard. Given all the circumstances set forth in the affidavit including the veracity and basis of knowledge of the person supplying hearsay information, the magistrate had a substantial basis for concluding there was probable cause for Hooper's arrest.FN7 We find no plain error in the magistrate's failure to suppress the evidence from Hooper's arrest, and this proposition is denied. FN7. Langham, 787 P.2d at 1281.
In Proposition II Hooper argues the search warrant was defective. Officers served a search warrant at the same time Hooper was arrested, and seized items including Hooper's 9mm pistol, two shovels, gas cans, and broken glass. Oklahoma County issued the warrant with a separate affidavit from Officer Presley. Reviewing the affidavit under the totality of the circumstances test, we find the magistrate did not commit plain error.FN8 FN8. Langham, 787 P.2d at 1281.
Hooper claims a) that the affidavit does not provide indicia of reliability for either informant allegations or forensic conclusions, b) that the affidavit contains irrelevant evidence, c) that the information regarding forensic comparison was questionable, and d) that each individual charge in the warrant is insufficient to support probable cause. The affidavit initially avers that Officer Presley had personal knowledge of the facts and circumstances related through his own investigation as well as that of other officers named in the affidavit who told him their findings. This statement provides sufficient indicia of reliability and personal knowledge, as the magistrate had a basis for determining the veracity and reliability of law enforcement officers. All informants are named and their relationship to Hooper is described, so Hooper's first argument must fail.FN9 Although Hooper claims the evidence of Stremlow's house burglary is irrelevant, that evidence further connects Hooper to the victims. Hooper again argues the forensic evidence was questionable because the bullets in the OCPD property room were never fired and thus casings could not be compared. The record does not support this assertion. Presley apparently recited information given to him by reliable sources and which he believed to be true. Given the totality of circumstances in the affidavit the magistrate did not err in admitting evidence seized pursuant to the search warrant. There is no plain error and this proposition should be denied. FN9. Newton v. State, 824 P.2d 391, 393 (Okl.Cr.1991).
ISSUES RELATING TO GUILT OR INNOCENCE
In Proposition III Hooper argues the trial court improperly admitted three separate categories of evidence he claims contain other crimes or bad acts. Hooper objected to some of this evidence, preserving some issues for appeal. A defendant should be convicted, if at all, by evidence of the charged offenses, but other crimes evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.FN10 The evidence was offered to show identity, continuous possession of the murder weapon, and motive or intent. Any errors in admission of this evidence do not require reversal or modification. FN10. Burks v. State, 594 P.2d 771 (Okl.Cr.1979), overruled in part on other grounds by Jones v. State, 772 P.2d 922 (Okl.Cr.1989); 12 O.S.1991, § 2404(B).
In Subproposition A Hooper complains about admission of evidence derived from a July 16, 1993 traffic stop. Hooper bought a 9mm pistol on July 15, 1993. On July 16, Officer Reagor arrested Hooper for an invalid inspection sticker and stolen license tags. Reagor confiscated the gun, which was returned to Hooper on October 29. Cindy was with Hooper during the traffic stop and a bottle of Jim Beam was in the car. The State filed a Burks notice and offered this evidence to show identification and to prove Hooper had continuous and exclusive possession of the gun. The trial court overruled Hooper's motion in limine to prevent this evidence three times before the evidence was presented; the court ruled possession of the loaded murder weapon was relevant to intent, ownership and possession, and that the probative value of that evidence outweighed its prejudicial effect. Hooper was granted a continuing objection to Officer Reagor's testimony and all evidence of the traffic stop.
At an in camera hearing the trial court found the stop was valid, then ruled Hooper's possession of the murder weapon was relevant and the Jim Beam bottle went to identification because it corroborated other testimony that Hooper drank Jim Beam. The court held that the reason for the stop—the inspection sticker and stolen tags—and whether the whiskey bottle was open were not relevant to this case. Officer Reagor testified that he stopped Hooper and confiscated the loaded gun, that Cindy was in the car, and that there was a Jim Beam bottle.
Hooper argues this evidence interjected evidence of other crimes and bad acts and was more prejudicial than probative. He complains that the evidence was not necessary to show continuous, exclusive possession. On the contrary, the trial court correctly found that Hooper's possession of the murder weapon was relevant to the crime and necessary to complete the State's proof that Hooper possessed the gun continuously since its purchase, exclusive of the time in which it was confiscated. Hooper complains that the evidence did not establish a modus operandi or peculiar facts which would create a signature. This requirement goes specifically to other crimes evidence offered to prove knowledge and intent, and does not apply to the evidence here.FN11 Hooper claims that the evidence was not necessary to show his connection with Cindy, and the fact the loaded gun was found under her seat gave the evidence a sinister overtone. Hooper also claims the evidence of the Jim Beam bottle was irrelevant and inferred prior bad acts. Since no evidence was presented on the topic, he argues the jury must have inferred the bottle was open. We find no error in inferences apparent only to defense counsel. Hooper also argues the trial court erred in admitting the Jim Beam bottle when the State originally only offered testimony about the gun. Other evidence showed that Cindy and Hooper drank Jim Beam whiskey, that after the crimes Hooper's fingerprints were found on a Jim Beam bottle in Stremlow's house, and that Hooper was not welcome at Stremlow's house. Evidence of the Jim Beam bottle was relevant to corroborate other evidence and connect Hooper to the victims near the time of the crime. The trial court did not abuse its discretion in admitting this evidence. FN11. Blakely v. State, 841 P.2d 1156, 1159 (Okl.Cr.1992).
Hooper now complains that the jury never heard why he was stopped, inferring trial counsel erred in agreeing to establish the validity of the stop outside the presence of the jurors.FN12 He argues that no reasonable juror would believe that Hooper was stopped for an inspection sticker violation, so the omission of that evidence left a worse impression than if the evidence of the other crime had been admitted. Strictly speaking, Hooper wants this Court to rule the trial court erred in excluding evidence of other crimes. We decline; the evidence of the inspection sticker and stolen license tags was not relevant to this case. FN12. Hooper does not include this allegation in his proposition claiming ineffective assistance of trial counsel.
Hooper argues in Subproposition B that the trial court erred in admitting Stefanie Duncan's testimony about her relationship with Hooper. In the first stage Duncan, Hooper's ex-wife, testified that in 1989 she and Hooper often went to the field where the victims were found. Before Duncan's testimony Hooper objected to any evidence of bad acts, and the prosecutor stated Duncan would only testify about the location of the field. On cross-examination, Hooper brought out that the two had only been married for eight months. When he asked about the grounds for divorce Duncan replied the couple had a violent history. Hooper ceased questioning and the State declined redirect examination. Then Hooper reopened cross-examination to ask who filed for divorce. Duncan replied Hooper had filed. On redirect, Hooper objected when the State asked who in the relationship had been violent. The trial court allowed the answer, ruling that Hooper had opened the door to this testimony by implying that Duncan had been violent. Duncan testified Hooper had physically abused her and tried to kill her several times.
Hooper invited this error when he left the clear and erroneous impression that Duncan's violent behavior caused Hooper to file for divorce. Hooper is not entitled to relief from this invited error.FN13 Hooper attempts to avoid this result by characterizing Duncan's testimony as an evidentiary harpoon. Evidentiary harpoons are typically delivered by experienced police officers, and are voluntary, willful injections of other crimes calculated to prejudice the defendant and which do actually prejudice him.FN14 A witness other than an experienced police officer may occasionally deliver an evidentiary harpoon, but Duncan's evidence does not qualify. Her testimony was delivered in direct response to questioning; defense questions prompted it; and it was neither calculated to prejudice Hooper nor did it actually prejudice him given the other evidence against him. FN15 The trial court did not err in admitting this testimony.
FN13. Pierce v. State, 786 P.2d 1255, 1259 (Okl.Cr.1990). FN14. Bruner v. State, 612 P.2d 1375, 1378 (Okl.Cr.1980). Even an actual evidentiary harpoon may not be prejudicial if a defendant invites the error. Rogers v. State, 890 P.2d 959, 972 (Okl.Cr.), cert. denied, 516 U.S. 312, 116 S.Ct. 312, 133 L.Ed.2d 215 (1995). FN15. Bruner, 612 P.2d at 1378–79.
Hooper argues counsel's questions to Duncan amounted to ineffective assistance of counsel. Hooper must show counsel's performance was so deficient he did not have counsel as guaranteed by the Sixth Amendment, and his defense was prejudiced as a result of counsel's deficient performance by errors so serious as to deprive him of a fair trial with reliable results.FN16 This Court need not reach the first prong of this test as Hooper fails to meet the second prong. The record suggests counsel attempted to show Duncan was violent and biased against Hooper, a reasonable strategic decision. Hooper fails to show that counsel's questions prejudiced him. Hooper also claims that the prosecutor committed misconduct when she repeated Duncan's evidence and commented on Hooper's history and capacity for violence towards women. Hooper did not object to this comment and has waived all but plain error. There was no error as this was a reasonable comment on the evidence presented at trial. FN16. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
Hooper argues in Subproposition C that the trial court erred in admitting evidence that Stremlow's house was burglarized after the murders. Stremlow and Officer Harlow testified that Stremlow spent the night at home on December 7, left, and returned to his house on December 10. Although there was no forced entry, dresser drawers were disturbed, ten dollars was missing, and a Jim Beam bottle bearing Hooper's fingerprints was on the dresser. Stremlow had told Cindy not to let Hooper visit their house. Stremlow had his landlord's key. The only other house key had been on his key ring with the truck key and was missing. The State filed a second Burks notice offering this evidence to prove identity. Hooper objected vigorously to this evidence and has preserved the issue for review. The trial court ruled evidence of the burglary was relevant to show date, time and location.
Hooper argues since Stremlow spent one night at home before discovering the burglary, the bottle could not have been there before Cindy's death. He claims this evidence has no probative value and was only offered to show his bad character. While this testimony inferred Hooper committed burglary, it connected Hooper to the victims and the location. His fingerprints suggested that Hooper had been in the house, and the absence of evidence of forced entry suggested that whoever entered used the key from the truck key ring. The trial court did not err in admitting this evidence. Despite Hooper's claim, the trial court did not err in admitting evidence of the July 16, 1993 traffic stop or the burglary at Stremlow's house. Additionally, Hooper opened the door to Duncan's comments about their relationship and he is not entitled to relief on that ground. Proposition III is denied.
In Proposition IV Hooper argues the trial court erred in admitting portions of Brett Blanton's testimony. Hooper claims Blanton's comments were irrelevant under 12 O.S.1991, § 2402, and, if relevant, were more prejudicial than probative. Brett Blanton worked with Hooper during the autumn of 1993, and they shared a room when working in Illinois. Blanton testified that Hooper had a 9mm semiautomatic pistol, often went target shooting, cleaned the gun often, and slept with it nearby. Once Hooper fell asleep holding the loaded gun and Blanton had to take it away. Hooper refused Blanton's offers to buy the pistol. Hooper was granted a continuing objection to this evidence. The State offered it to show continuous and exclusive possession of the pistol and to negate the argument that Hooper might have loaned his gun to someone else who committed the murders. The trial court allowed limited testimony for that purpose. Hooper argues this could have been achieved without admitting evidence that he constantly held the gun and slept with it nearby. He suggests that, taken as a whole, Blanton's testimony showed Hooper was obsessed with his gun and that the testimony was offered to attack his character.
Relevant evidence is that which has any tendency to make more or less probable a material fact in issue.FN17 The admissibility of evidence is within the trial court's discretion and this Court will not disturb that decision absent a clear showing of abuse.FN18 Relevancy depends on the issues to be proved at trial.FN19 The State's case against Hooper was entirely circumstantial, and the State had to prove Hooper used the 9mm pistol to commit the crimes. Blanton's evidence established that Hooper possessed the gun from October 29 through November, was very attached to it, and refused to sell it. This is relevant to the issues of possession of the murder weapon and Hooper's identity as the murderer. Any inference that Hooper was obsessed with the pistol cannot have prejudiced him in light of the evidence of his violent history with Cindy and other evidence showing he was at the crime scene. Hooper has not shown that the prejudicial effect of Blanton's testimony substantially outweighs its probative value.FN20 This proposition is denied.
FN17. 12 O.S.1991, § 2401. FN18. Robedeaux v. State, 866 P.2d 417, 432 (Okl.Cr.1993), cert. denied, 513 U.S. 833, 115 S.Ct. 110, 130 L.Ed.2d 57 (1994). FN19. Hawkins v. State, 891 P.2d 586, 593 (Okl.Cr.1994), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995). FN20. 12 O.S.1991, § 2403.
In Proposition XIII Hooper claims the trial court erred in admitting hearsay evidence about a previous fight with Cindy. Two police officers testified about conversations with Cindy and Hooper after the two fought on February 19, 1992. Hooper objected to this evidence and has preserved the issue for review. Any error in admission of this evidence was harmless.
Officer Abrahamson testified that Cindy reported a February 19, 1992 fight during which Hooper pulled the phone out of the wall, pushed and choked her, and threatened to kill her. Officer Abrahamson said Cindy appeared angry and upset. The trial court admitted this evidence as an excited utterance to show Cindy's state of mind.FN21 A victim's hearsay statements describing threats and beatings are admissible to show the victim's state of mind and indicate fear of a defendant.FN22 This Court has distinguished between statements describing a victim's state of mind and declarations of a defendant's previous bad acts.FN23 We have held evidence of prior threats, assaults, and battery on a victim is proper to show the victim's state of mind,FN24 but a specific description of a defendant's actions in grabbing a gun is inadmissible as a declaration of a defendant's actions.FN25 Officer Abrahamson's evidence that Cindy told her Hooper pulled the phone cord from the wall appears to be inadmissible evidence of Hooper's actions, but its admission is harmless in light of the properly admitted evidence against Hooper. Officer Abrahamson's testimony about the fight and Hooper's threats was properly admitted under the state-of-mind exception. Hooper also argues that no hearsay exception applies because this statement was offered to prove the truth of the matter asserted. The record does not support this claim. The trial court did not err in admitting this evidence.
FN21. 12 O.S.1991, § 2803(3). FN22. Long v. State, 883 P.2d 167, 173 (Okl.Cr.1994); Lamb v. State, 767 P.2d 887, 890 (Okl.Cr.1988); Moore v. State, 761 P.2d 866, 870 (1988); see also Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933) (statement erroneously admitted as dying declaration not admissible for state of mind where statement did not present the victim's past or present thoughts or feelings but simply accused the defendant of murder). FN23. Moss v. State, 888 P.2d 509, 518 (Okl.Cr.1994); Moore, 761 P.2d at 870. FN24. Lamb, 767 P.2d at 890. FN25. Moore, 761 P.2d at 870.
While investigating the February 19 fight, Officer Wilson called Hooper at the telephone number listed for Hooper in the police report. A person identifying himself as Hooper returned Officer Wilson's call, and told Officer Wilson he and Cindy fought on February 19 and he pushed her and put his hands around her throat. Hooper claims Officer Wilson should not have testified about this call. He agrees this conversation was not hearsay if he made the statements,FN26 but claims it was not properly authenticated. Authentication may be proved by direct or circumstantial evidence, and is sufficient if evidence supports a finding that the matter in question is what its proponent claims it to be.FN27 A voice may be identified and authenticated if the witness's opinion is based on hearing the voice at any time under circumstances connecting it with the alleged speaker.FN28 A telephone conversation may be authenticated by evidence that a call was made to the number assigned to a particular person if circumstances including self-identification show the person answering to be the one called. FN29 Officer Wilson called Hooper's number and asked Hooper to call him. A person identifying himself as Hooper called back and discussed details of the February 19 incident which Officer Wilson had not revealed. This conversation was sufficiently authenticated, and the trial court did not err in admitting the evidence. This proposition is denied.
FN26. 12 O.S.1991, § 2801(4)(B)(1). FN27. 12 O.S.1991, § 2901(A); Hightower v. State, 672 P.2d 671, 676 (Okl.Cr.1983). FN28. 12 O.S.1991, § 2901(B)(5). FN29. 12 O.S.1991, § 2901(B)(6).
In Proposition XVI Hooper claims the State failed to produce sufficient evidence linking him to the murders. When reviewing a claim of insufficient evidence this Court will ask whether, in the light most favorable to the State, the evidence could allow any reasonable trier of fact to find all the elements of the offenses beyond a reasonable doubt.FN30 Hooper first assumes the Court has agreed with his other claims of error. He asserts that without evidence from the arrest, the search, the photographs, and other evidence of which he complains, insufficient evidence supports his conviction. As Hooper's other claims of error fail, this claim fails as well. FN30. Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Additionally, Hooper argues that the evidence presented at trial is insufficient. He suggests the DNA evidence was ambiguous and the physical evidence cannot be connected in time with the murders. He claims he could not have committed the crimes in the time available, and states it is impossible to connect him with the State's theory of Tonya's death (see Proposition V, infra ). Hooper is mistaken. The State's case against him was entirely circumstantial, so the evidence must exclude every reasonable hypothesis except guilt.FN31 On review, this Court will accept all reasonable inferences and credibility choices which tend to support the jury's verdict.FN32 Circumstantial evidence connecting Hooper to the murders includes:
FN31. Bryan v. State, 935 P.2d 338, 358 (Okl.Cr.1997); Mayes v. State, 887 P.2d 1288, 1301–02 (Okl.Cr.1994), cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995). FN32. Bryan, 935 P.2d at 358; Maxwell v. State, 742 P.2d 1165, 1169 (Okl.Cr.1987). **Hooper's relationship with Cindy was marked by physical violence and death threats in the two years preceding the murders; ?although Cindy left Hooper in the autumn of 1993, on December 6 she told a friend she wanted to be with Hooper one last time; **at approximately 3:45 p.m. December 7 Cindy and Tonya were seen in Stremlow's pickup with a white male other than Stremlow; **the driver and passenger windows in Stremlow's truck were broken in the field near the grave; **broken window glass on Hooper's carpet was consistent with glass in Tonya's jacket pocket; **broken window glass consistent with glass from Stremlow's truck was found near the crime scene; **Hooper's shoeprints were similar to a footprint found near the broken gate at the crime scene field; **DNA evidence showed blood on Hooper's left and right shoes was consistent with Cindy's; **the victims were buried in a single grave which was saturated with gasoline; **soil on shovels in Hooper's garage matched the composition of soil from the grave; **the grave was in a wooded area, covered with branches and debris, in a field where Hooper had been before; **on December 9 officers saw a fresh scratch on Hooper's arm; **9mm casings were found in the field, and a 9mm bullet was embedded in a branch on the grave; **the three victims were each shot twice, and the wounds were consistent with a 9mm bullet; **Hooper owned a 9mm pistol and evidence showed that either the Oklahoma City police or Hooper had exclusive possession of the pistol since its July 15, 1993, purchase; **n December 6 or 7, Hooper showed neighbors a 9mm pistol; **Hooper had a live 9mm bullet in his pocket when he was arrested; **shell casings from the scene matched casings found where Hooper practiced target shooting and also matched a bullet test-fired from Hooper's gun; **the 9mm bullet embedded in the branch on the grave was fired from Hooper's gun; **white fibers consistent with Tonya's jacket were pinned to the branch on the grave by the 9mm bullet from Hooper's gun; **the branch on the grave appeared to come from a limb near a pool of blood; **DNA evidence showed the blood pool was consistent with Cindy or Tonya; **blue fibers consistent with Tonya's jacket were near the blood pool; **a small, hot object made a hole through the outer blue fabric and white fiber lining of Tonya's hood; **after December 7, a person entered Stremlow's home without forced entry, and the only key to the home was on the truck key ring; **after December 7 Hooper's fingerprints were found on a Jim Beam bottle left on Stremlow's and Cindy's dresser.
This evidence is inconsistent with innocence and excludes every reasonable hypothesis except that of guilt. This proposition is denied.
SENTENCING ISSUES
In Proposition VII Hooper attacks the content of the victim impact evidence admitted during the second stage of trial. Cindy's sister and mother and the children's paternal grandmother testified about the effect the deaths had on their lives and the life of the children's father.FN33 They said Hooper should receive the death sentence. The testimony was in a question-and-answer format and Hooper declined cross-examination. Hooper first contends the statute is unconstitutional, then argues the victim impact evidence in his case was too emotional and did not meet the statutory requirements as interpreted by this Court. He objected generally to victim impact evidence, but did not object specifically to the testimony at trial and has waived all but plain error.FN34
FN33. Hooper does not raise as a proposition of error the paternal grandmother's qualifications as a witness under 22 O.S.Supp.1992, § 984(2). FN34. During the motions hearing, Hooper requested an in camera hearing before the evidence was admitted. In Mitchell v. State, 884 P.2d 1186, 1204 (Okl.Cr.1994), cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995), we held that victim impact evidence should be independently weighed before admission like any other evidence to ensure it is more probative than prejudicial. Although all parties were aware of Mitchell, the trial court denied this request and Hooper did not renew the request at trial.
Hooper admits we have held 21 O.S.Supp.1992, § 984, constitutional,FN35 but urges the Court to reconsider. In Cargle this Court rejected the argument that victim impact evidence acts as a “super” aggravating circumstance.FN36 Cargle and our subsequent decisions sufficiently limit the purpose and presentation of victim impact evidence. The statute is not overbroad on its face or as applied here.
FN35. Hain v. State, 919 P.2d 1130, 1144 (Okl.Cr.1996); Cargle v. State, 909 P.2d 806 (Okl.Cr.1995); Mitchell, 884 P.2d at 1203–1204 (admission of victim impact evidence does not violate prohibition against ex post facto laws). FN36. Cargle, 909 P.2d at 828 n. 15.
Victim impact evidence is intended to provide a “quick glimpse” of a victim's characteristics and the effect of the victim's death on survivors.FN37 Evidence should be restricted to the financial, emotional, psychological, and physical effect of the crime itself and some personal characteristics of the victim.FN38 Trial courts should beware in admitting evidence which focuses on the emotional impact of the crime to the exclusion of other factors; FN39 “the more a jury is exposed to the emotional aspects of a victim's death, the less likely their verdict will be a ‘reasoned moral response’ ”.FN40 Hooper argues the witnesses should not have been allowed to give their opinion that Hooper should be sentenced to death. This Court has recently held that victim impact witnesses may recommend a sentence.FN41 A witness's opinion “should be given as a straight-forward, concise response to a question asking what the recommendation is; or a short statement of recommendation in a written statement, without amplification.” FN42 We will review such statements with a heightened degree of scrutiny,FN43 but opinion evidence recommending a penalty is admissible under § 984.
FN37. Cargle, 909 P.2d at 828. FN38. 22 O.S.Supp.1993, § 984.; Cargle, 909 P.2d at 828. FN39. Cargle, 909 P.2d at 830. FN40. Conover v. State, 933 P.2d 904, 921 (Okl.Cr.1997) FN41. Ledbetter v. State, 933 P.2d 880, 890–91 (Okl.Cr.1997); Conover, 933 P.2d at 920–21. FN42. Ledbetter, 933 P.2d at 891. FN43. Id.; Conover, 933 P.2d at 921.
Three witnesses gave victim impact evidence. Hooper complains about Barbara Jarman's testimony. He first argues that Mrs. Jarman's statement exceeds the statutory framework of admissible evidence because it focuses on the emotional impact of the children's deaths to the exclusion of other factors. Mrs. Jarman's statement describes the emotional effect the children's deaths had on her and her son, but also describes the physical and psychological effects. Taken as a whole, the testimony is within the bounds of admissible evidence, and its focus on emotion does not so skew the presentation as to divert the jury from its duty to reach a reasoned moral response.
Hooper claims the weighing process was skewed when Mrs. Jarman repeated the State's theory of Tonya's death. Mrs. Jarman said Hooper should be sentenced to death, and said she saw Tonya running through the woods, being chased and caught, and saw someone looking into Tonya's big, beautiful brown eyes before shooting her in the face and leaving her to die. This statement was not a “straightforward concise response” and should not have been admitted. However, we cannot say its admission had such a prejudicial effect as to prevent the jury from making a reasoned moral decision whether to impose the death penalty. Hooper claims his sentence is unreliable because the prosecutor and Mrs. Jarman swayed the jury's passions by describing a scene unsupported by the evidence. The State's theory of Tonya's death was a reasonable deduction from the evidence at trial [see Proposition V, infra ]. While Mrs. Jarman's recommendation was inappropriate opinion evidence, it was not based on an inaccurate and unsupported account of the crimes. Nothing in the record suggests Mrs. Jarman or the prosecutor intended to impermissibly influence jurors and skew the weighing process.
Hooper finally argues that admission of victim impact evidence is irrelevant to the ultimate issue to be decided. The legislature has determined that victim impact evidence is both relevant and admissible. FN44 Hooper claims this Court should review the issue for more than plain error, even though he did not object to the evidence at trial. He argues that any objection to victim impact evidence would alienate the jury, and counsel had to choose between annoying the sentencer and preserving issues for appeal. The trial court instructed the jury to disregard objections and conferences at the bench, and counsel in closing asked the jury not to blame Hooper if counsel had done something the jury didn't like. Nothing in the record suggests this jury could not separate counsel's trial conduct from the issues it had to decide. FN44. 22 O.S.Supp.1993, §§ 984 et seq.
Oklahoma's statute allowing presentation of victim impact evidence is constitutional. While a small portion of the victim impact testimony was overly emotional and prejudicial, its admission did not prevent the jury from fulfilling its function and was harmless in light of the other evidence presented in the second stage of trial. This proposition is denied.
In Proposition VIII Hooper a) argues the great risk of death to more than one person aggravating circumstance is unconstitutional on its face and as construed by this court, and b) claims evidence in the record is insufficient to establish this circumstance. The jury found as to all three victims that Hooper had knowingly created a great risk of death to more than one person.FN45 Hooper claims this aggravating circumstance performs no narrowing function because it applies whenever a defendant commits multiple murders. “The fundamental question on review is whether the aggravating circumstance, as construed, genuinely narrows the class of persons eligible for the death penalty. Constitutional infirmity does not arise merely because the aggravating circumstance is not subject to mechanical application, or because a wide range of circumstances satisfies it.” FN46 Hooper argues this circumstance does not apply simply because a defendant kills more than one person at a time. He cites cases in which this Court has held the great risk of death aggravating circumstance is proved not by the death of more than one person, but by a defendant's acts which create a risk of death to another “in close proximity, in terms of time, location, and intent” to the killing. FN47 These cases do not support Hooper's argument. They imply that the aggravating circumstance is appropriate in this situation but hold that it may be appropriate where only one person is killed or where more than one person is killed but the murders are not contemporaneous. Hooper admits this Court has repeatedly held this aggravating circumstance applies where a defendant contemporaneously kills more than one person.FN48
FN45. 21 O.S.1991, § 701.12(2). FN46. Allen v. State, 923 P.2d 613, 622 (Okl.Cr.1996). FN47. Allen, 923 P.2d at 622; Snow v. State, 876 P.2d 291, 297 (Okl.Cr.1994), cert. denied, 513 U.S. 1179, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995); Pennington v. State, 913 P.2d 1356, 1370 (Okl.Cr.1995), cert. denied, 519 U.S. 841, 117 S.Ct. 121, 136 L.Ed.2d 72 (1996). FN48. Sellers v. State, 809 P.2d 676, 691 (Okl.Cr.1991), cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991); Fowler v. State, 779 P.2d 580, 588 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990); Nguyen v. State, 769 P.2d 167, 174 (Okl.Cr.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989), overruled on other grounds by Green v. State, 862 P.2d 1271 (Okl.Cr.1993).
On review, this Court will consider whether, in the light most favorable to the State, the evidence is sufficient to support the alleged aggravating circumstance.FN49 Tonya and her mother were last seen together at approximately 3:45 p.m. on December 7. All three victims were found buried in a single grave, and each had suffered two gunshot wounds to the head. All three victims were in Stremlow's truck that morning, and the passenger windows on that truck appeared to be broken in the field near the grave. The jury could conclude the victims were together when they were killed. Evidence sufficiently suggests the murders were in close proximity. The aggravating circumstance of great risk of death is constitutional and supported by the evidence in this case. This proposition is denied. FN49. Valdez v. State, 900 P.2d 363, 382 (Okl.Cr.), cert. denied, 516 U.S. 967, 116 S.Ct. 425, 133 L.Ed.2d 341 (1995).
In Proposition XI Hooper argues the murder committed for the purpose of avoiding or preventing a lawful arrest or prosecution aggravating circumstance FN50 was not supported by the evidence beyond a reasonable doubt. The jury found that Tonya's murder was committed for the purpose of avoiding arrest or prosecution, on the grounds that Hooper killed Tonya because she saw him kill her mother. Hooper argues that insufficient evidence supports this finding since it appears to rely on the State's theory of Tonya's death (see Proposition V, infra ) and other speculative evidence. The avoiding arrest aggravating circumstance requires a predicate crime for which a defendant seeks to avoid arrest or prosecution, separate from the murder with which he is charged.FN51 Evidence supports a finding that Hooper shot Tonya because he sought to avoid arrest or prosecution for Cindy's murder. Cindy's murder, although contemporaneous in time and place, provides a sufficient predicate crime. This proposition of error is denied.
FN50. 21 O.S.1991, § 701.12(5). FN51. See, e.g., Cannon v. State, 904 P.2d 89, 107 (Okl.Cr.1995); McGregor v. State, 885 P.2d 1366, 1385 (Okl.Cr.1994), cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995); Mitchell v. State, 884 P.2d 1186, 1208 (Okl.Cr.1994); Barnett v. State, 853 P.2d 226, 233 (Okl.Cr.1993).
In Proposition X Hooper claims evidence was insufficient to support the continuing threat aggravating circumstance. The jury found, as to all three victims, that Hooper would probably commit criminal acts of violence which would constitute a continuing threat to society.FN52 Hooper does not claim that this aggravating circumstance is unconstitutional on its face, but he argues it was unconstitutional as applied to him. The State relied on two categories of evidence to support this circumstance: the circumstances of the crimes charged and the testimony of Stefanie Duncan, Hooper's ex-wife. Duncan testified that Hooper fought with her, beat her, and threatened to kill her several times. While she called the police after some of these fights, evidence did not show Hooper was charged or convicted of a crime in connection with these incidents.FN53 Duncan's testimony consisted solely of unadjudicated crimes. We have upheld the use of unadjudicated crimes evidence to support this aggravating circumstance,FN54 and its use here is not unconstitutional.FN55
FN52. 21 O.S.1991, § 701.12(7). FN53. Dr. Adams, a neuropsychologist, examined Hooper in April, 1993, and his report was admitted as Defendant's Exhibit 4 [see Proposition XII]. On page 5 the report states (1) Hooper pleaded no contest to assault and battery against Duncan, and served thirty days in jail; and (2) another woman “recently” filed assault charges against Hooper and he was on probation for those charges. Neither Dr. Adams nor any other witness testified about this information at trial. Although the report was before the jury, the evidence presented did not indicate Hooper had any prior convictions, and the State never claimed he was convicted of any crimes. FN54. See, e.g., Snow, 876 P.2d at 298; Revilla v. State, 877 P.2d 1143, 1155–56 (Okl.Cr.1994), cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995); Brown v. State, 871 P.2d 56, 73 (Okl.Cr.), cert. denied, 513 U.S. 1003, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994); Ellis v. State, 867 P.2d 1289, 1301 (Okl.Cr.), cert. denied, 513 U.S. 863, 115 S.Ct. 178, 130 L.Ed.2d 113 (1994); Trice v. State, 853 P.2d 203, 220–21 (Okl.Cr.1993), cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 597 (1993); Pickens v. State, 850 P.2d 328, 339 (Okl.Cr.1993), cert. denied, 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994). FN55. I have consistently disagreed with this holding. Cannon v. State, 904 P.2d 89, 106 (Okl.Cr.1995); LaFevers v. State, 897 P.2d 292, 311 (Okl.Cr.1995); Hogan v. State, 877 P.2d 1157, 1167 (Okl.Cr.1994) (Chapel, J., dissenting on issue of unadjudicated crimes); Paxton v. State, 867 P.2d 1309, 1325 (Okl.Cr.1993) (Chapel, J., dissenting on issue of unadjudicated crimes). I yield my view to the majority.
The State primarily argued that the callous and brutal circumstances of the crime alone proved Hooper would be a continuing threat to society. The prosecutor emphasized the “brutal and callous nature” with which Hooper murdered all three victims, and vividly reconstructed the State's theory of the murders, arguing the “vicious, cold-blooded murder” proved Hooper capable of anything. The prosecutor also argued Hooper's conduct after the murder supported this aggravating circumstance. The prosecutor said Hooper's actions in methodically concealing and attempting to destroy evidence were cold, remorseless and devious. This Court has upheld cases in which the callous nature of the crime was the sole evidence offered in support of this aggravating circumstance,FN56 and in which this circumstance was supported by both the circumstances of the crime and evidence of unadjudicated offenses.FN57 The continuing threat circumstance as applied here is not unconstitutional, and this proposition is denied.FN58
FN56. Workman v. State, 824 P.2d 378, 383–84 (Okl.Cr.1991), cert. denied, 506 U.S. 890, 113 S.Ct. 258, 121 L.Ed.2d 189 (1992); Fisher v. State, 736 P.2d 1003, 1009 (Okl.Cr.), aff'd. on rehearing, 739 P.2d 523 (Okl.Cr.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988). FN57. Sellers v. State, 809 P.2d 676, 690 (Okl.Cr.1991), cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991) (evidence of the crime itself and unadjudicated offenses and bragging); Boltz v. State, 806 P.2d 1117, 1125 (Okl.Cr.1991), cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991) (evidence of the crime itself and unadjudicated offenses and bragging); Fox v. State, 779 P.2d 562, 577 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990); Walker v. State, 723 P.2d 273, 286 (Okl.Cr.1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986); Ross v. State, 717 P.2d 117, 123–24 (Okl.Cr.1986), affrm'd, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988); Liles v. State, 702 P.2d 1025, 1030–31 (Okl.Cr.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2291, 90 L.Ed.2d 732 (1986) (evidence of the crime itself and unadjudicated offenses, possession of weapons). FN58. This Court has looked with disfavor on the use of the circumstances of the crime to support this aggravating circumstance. Perry v. State, 893 P.2d 521, 536 (Okl.Cr.1995). I have disagreed with the use of circumstances of the crime to support this aggravating circumstance. Cannon, 904 P.2d at 106, n. 60. However, I yield my view to that of the majority. I would not uphold this aggravating circumstance based solely on the circumstances of the crime and evidence of unadjudicated offenses; upon reweighing the remaining aggravating circumstances with the evidence in mitigation I have determined that elimination of the improper aggravating circumstance does not affect the balance beyond a reasonable doubt.
Hooper claims in Proposition XI that the aggravating circumstances of avoiding arrest and prosecution and continuing threat are duplicative because they are based on virtually the same evidence. Hooper's argument fails because this Court has repeatedly held there is no error in using the same evidence to prove two different aggravating circumstances where that evidence does not show the same aspect of the defendant or his crime. FN59 The evidence suggesting Tonya ran from Hooper before he killed her was used (1) to show Hooper killed Tonya because she saw him kill her mother; and (2) to suggest that a person capable of this kind of crime would be likely to commit future crimes of violence. These show different aspects of Hooper's character and are not duplicative. This proposition is denied. FN59. See, e.g., Allen v. State, 871 P.2d 79 (Okl.Cr.), cert. denied, 513 U.S. 952, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994).
Hooper claims in Proposition XII that the trial court erred in permitting Dr. Adams to testify against him in second stage. Dr. Adams, a neuropsychologist, evaluated Hooper for learning disabilities in April 1993. Dr. Adams' evaluation was summarized in a comprehensive 11–page report, which Dr. Murphy reviewed [see Proposition VI, infra ]. The trial court admitted Dr. Adams' report as Defendant's Exhibit 4. The State called Dr. Adams as a rebuttal witness. Dr. Adams refused to testify unless Hooper waived the physician-patient privilege. Hooper refused to waive his privilege and the trial court ordered Dr. Adams to testify over Hooper's objection.
The physician-patient privilege is waived where a defendant voluntarily “discloses or consents to disclosure of any significant part of the privileged matter.” FN60 Where a defendant relies on his physical, mental or emotional condition as an element of his defense, the privilege is qualified to the extent the State may obtain relevant information about the condition through discovery as provided by statute.FN61 The Oklahoma Criminal Discovery Code provides for discovery of information regarding testimony relating to any condition bearing on a defendant's mental state at the time the crime was committed.FN62 Hooper produced Dr. Adams' report in response to the State's request for discovery. He subsequently admitted the report to support his claim that his mental or psychological condition mitigated against imposition of the death penalty. By introducing the confidential material into evidence, Hooper waived his privilege.
FN60. 12 O.S.1991, § 2511. FN61. 12 O.S.1991, § 2503(D)(3). FN62. 22 O.S.Supp.1994, § 2002(B)(1)(c).
Hooper argues there is, or should be, a distinction between a testimonial privilege and any documents he may introduce into evidence. He suggests he cannot have waived his privilege not to have Dr. Adams testify about the report by introducing the written report itself. He argues that he only introduced Dr. Adams' report to show the basis for Dr. Murphy's written conclusion, and it could be properly used only to cross-examine Dr. Murphy. We are not persuaded by this imaginative but baseless distinction. Hooper introduced Dr. Adams' report, which was based on confidential communications. He voluntarily disclosed that information and thus waived the privilege as regards those communications. The State called Dr. Adams to testify about his findings and conclusions contained in his report. Although some of the information the State elicited was not clearly stated in the report, the trial court correctly concluded that information was within the report. Hooper offers no precedent supporting his argument that voluntary disclosure of a written confidential communication does not waive the privilege against testimony about the document by its author.
Hooper argues that Dr. Adams' testimony was improper because the trial court improperly deferred to Dr. Adams in determining whether he could testify as a result of the privilege.FN63 He claims Dr. Adams told the court he would testify only with Hooper's waiver or in response to a court order. Hooper says this circumvented the statute by allowing Dr. Adams to dictate the limits of the privilege. This red herring is entirely unsupported by the evidence. As soon as the State called Dr. Adams, Hooper refused to waive his privilege. Before Dr. Adams entered the courtroom, the trial judge said he would hold an in camera hearing and order Dr. Adams to testify. Dr. Adams later confirmed that he could ethically testify if ordered, but he did not suggest the procedure. FN63. Peninger v. State, 811 P.2d 609, 612 (Okl.Cr.1991) (privilege is a matter of law to be decided by the trial court).
Hooper finally claims generally that allowing this testimony undermined the Supreme Court's determination that communication should be protected. In Jaffee v. Redmond FN64 the Court held statements to a psychotherapist, made after the incident at issue, were protected from compelled disclosure in a civil suit. Of course, the disclosure here was “compelled” only in the sense Dr. Adams was ordered to testify; Hooper had already waived the privilege as to the substance of his communications to Dr. Adams. The Supreme Court's concerns in Jaffee distinguish it from Hooper's case. Dr. Adams did not treat Hooper, but merely tested him for a learning disability. Hooper divulged personal information in confidence during the testing. Dr. Adams' report indicates he referred Hooper to other services for potential treatment. The possibility that Hooper's confidential information would later be disclosed could not have affected his decision to divulge it for treatment purposes. Although Dr. Adams is a neuropsychologist, he was not treating Hooper for psychological problems. Hooper waived the privilege, the trial court appropriately ordered Dr. Adams to testify, and this proposition is denied. FN64. 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996).
In Proposition XV Hooper argues the second stage jury instructions did not accurately instruct the jury on the manner in which it was to use and consider mitigating evidence. Hooper combines three complaints about second stage instructions. He neither objected to these instructions at trial nor submitted proposed instructions, thus waiving all but plain error. Hooper first claims the instructions failed to inform the jury that its findings regarding mitigating circumstances did not have to be unanimous. He suggests the second stage instructions may be interpreted to require the jury to determine mitigating circumstances unanimously. Oklahoma does not require that the jury unanimously find mitigating circumstances, and the trial court's failure to so instruct is not error.FN65 Hooper next argues the instructions permitted the jurors to ignore mitigating evidence altogether, and seriously diminished the effect of his mitigating evidence. He argues that Instruction 32 (Uniform Instruction CR–438), which says the jury “may” consider circumstances extenuating or reducing moral culpability or blame, creates a doubt as to whether the jury should consider mitigating evidence. As this Court has often held, the permissive language in this instruction reflects the correct constitutional standard and avoids any infringement on the jury's duty to determine individual punishment.FN66 Finally, Hooper claims the trial court erred when it failed to instruct jurors that they could consider a sentence of life imprisonment or life imprisonment without parole even though they should find the existence of one or more aggravating circumstances beyond a reasonable doubt. The jury may impose a life sentence even if it finds aggravating circumstances outweigh mitigating circumstances. However, an instruction to this effect is not required.FN67 Hooper's jury was instructed to impose a noncapital sentence if jurors had a reasonable doubt about his guilt on the charges in the Bill of Particulars. Hooper admits this Court has repeatedly rejected these arguments and offers no reason for the Court to reconsider earlier decisions. There was no plain error in the instructions, and this proposition is denied.
FN65. Bryan, 935 P.2d at 364; Knighton v. State, 912 P.2d 878, 896 (Okl.Cr.1996). The second edition of the Oklahoma Uniform Jury Instructions, Criminal, contains a definition of mitigating circumstances which specifically informs jurors that unanimous findings of any given mitigating circumstance are not required (OUJI–CR 2d 4–78). This instruction restates settled law. It may assist future juries in their deliberations, but failure to give a similar instruction in this case is not error.
FN66. Rogers v. State, 890 P.2d 959, 978 (Okl.Cr.), cert. denied, 510 U.S. 1100, 116 S.Ct. 312, 133 L.Ed.2d 215 (1995); Pickens v. State, 850 P.2d 328, 339–40 (Okl.Cr.1993), cert. denied, 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994). FN67. Knighton, 912 P.2d at 895; Mitchell, 884 P.2d at 1206. The second edition of the Oklahoma Uniform Jury Instructions, Criminal, includes an instruction that a jury may impose a sentence of life or life without parole even if the aggravating circumstances outweigh mitigation circumstances (OUJI–CR 2d 4–80). This instruction restates settled law. It may assist future juries in their deliberations, but failure to give a similar instruction in this case is not error.
ISSUES RELATING TO FIRST AND SECOND STAGE
Hooper claims in Proposition V that prosecutorial misconduct prejudiced the jury's deliberations in both stages of trial. Hooper complains that the State's theory of Tonya's death was speculative, inflammatory and unsupported by the evidence. We disagree. Evidence showed that a bullet from Hooper's gun was embedded in a branch on the grave, pinning white fibers to the branch. The fibers matched fibers from the hood of Tonya's jacket. There was no blood or body fluids on the bullet or the fibers. Near the grave site a pool of blood from either Cindy or Tonya was found near a tree with a broken limb. Blue fibers on a limb next to the blood were also consistent with Tonya's coat, and a shell casing near the blood was fired from the same gun as the bullet in the branch on the grave. Tonya's jacket hood had a hole through the blue fabric which appeared to have been caused by a small hot object, and white fibers protruded from the hole. The branch on the grave appeared freshly broken and appeared to match a fresh break on the tree next to the blood.
Hooper failed to object to the State's arguments and has waived all but plain error. No plain error exists. The prosecutor repeatedly argued that Tonya ran into the woods while Hooper killed her mother and brother. Then, Hooper shot at Tonya and missed, pursued, caught and killed her, and left her to die. Hooper complains that this scenario is pure inflammatory speculation. On the contrary, it appears to be a reasonable inference from the evidence. The State's comment that Hooper left Tonya to die alone with her blood draining on the ground is supported by the evidence of the isolated blood pool and the medical examiner's testimony that Tonya would have died quickly but the wounds would have caused extensive bleeding. In second stage the State expanded on this theory. The prosecutor said Tonya was immersed in a child's worst nightmare of being chased by an evil monster trying to kill her; she asked the jury to imagine what she went through and how terribly long that interval must have seemed between the shot that missed and the time Tonya was caught. This argument approaches improper solicitation of sympathy for the victim, but it is based on the evidence presented. The line of argument based on the State's theory of Tonya's death was not improper.
Hooper claims the State's theory was especially prejudicial when considered with the victim impact evidence offered by the children's grandmother. Barbara Jarman said she believed the death penalty was appropriate because she thought of Tonya being chased, caught and shot in the face. [See Proposition VII, infra ] Hooper argues this statement shows either a master plan or that the State and the victims' family were deliberately trying to influence the jury's emotions with an unfounded and inadmissible theory. Nothing in the record supports the allegation that the State prompted Mrs. Jarman's language, or that the prosecutor deliberately used Mrs. Jarman's testimony to reinforce the State's theory. Mrs. Jarman was in the courtroom throughout the trial and had the opportunity to hear both the evidence and the State's argument before testifying.FN68 Two other family members gave victim impact testimony but did not mention that theory. The State's theory itself was neither inadmissible nor unsupported. Hooper's claim is without merit. FN68. The Rule was invoked, but both parties noted victim impact witnesses were present in the courtroom and neither party objected.
Hooper also argues the prosecutor attempted to improperly evoke emotion in the jury. In second stage closing, the prosecutor urged the jury to remember the haunting victims' photographs when considering Hooper's capacity for future violence. Hooper fails to cite and we do not find any case supporting his argument that this was an improper attempt to evoke emotion. In the first stage, the prosecutor twice argued Hooper left Tonya to die in the woods while her blood spilled on the ground, and stated Cindy only had time to inhale a small amount of blood into her lungs between the first and second shots. These comments are reasonable inferences and deductions from the evidence. The prosecutor also argued in first stage that to understand why Hooper murdered two children was to realize the depths of ruthlessness behind his “stone cold evil” eyes. Witness Harper testified without objection that Hooper had “stone cold evil” eyes during one fight with Cindy, and this argument was also a reasonable deduction from the evidence.
The State's theory of Tonya's death was supported by the evidence, as were other comments made in closing argument. None of the other comments of which Hooper complains were improperly prejudicial. Hooper has not shown the prosecutor acted inappropriately. There is no plain error, and this proposition is denied.
Hooper claims in Proposition VI that he was denied effective assistance of counsel at first and second stages of trial. He argues in five subpropositions that counsel was ineffective. To prevail on a claim of ineffective assistance of counsel Hooper must show his attorney's performance is so deficient that he did not have counsel as guaranteed by the Sixth Amendment, and counsel's deficient performance created errors so serious as to deprive Hooper of a fair trial with reliable results.FN69 In capital cases, there must be a reasonable probability that, absent errors, the sentencer would have concluded the balance of aggravating and mitigating circumstances did not support a death sentence.FN70 There is a strong presumption that counsel's conduct was professional and the defendant must overcome the presumption that counsel's conduct equaled sound trial strategy. FN71 We consider counsel's challenged conduct on the facts of the case as viewed at the time, ask if the conduct was professionally unreasonable, and, if so, whether the error affected the jury's judgment.FN72 We need not determine whether counsel's performance was deficient if we find that Hooper was not prejudiced by the claim.FN73
FN69. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. FN70. Bryan, 935 P.2d at 361; LaFevers v. State, 897 P.2d 292, 306 (Okl.Cr.1995), cert. denied, 516 U.S. 1095, 116 S.Ct. 820, 133 L.Ed.2d 763 (1996). FN71. Bryan, 935 P.2d at 361; Hammon v. State, 898 P.2d 1287, 1309 (Okl.Cr.1995); Camron v. State, 829 P.2d 47, 55 (Okl.Cr.1992). FN72. Bryan, 935 P.2d at 361–62; McGregor v. State, 885 P.2d 1366, 1381 (Okl.Cr.1994), cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995). FN73. Coleman v. State, 693 P.2d 4, 7 (Okl.Cr.1984); Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
If a defendant shows that counsel's actions have prejudiced him, this Court will look to the first prong of Strickland and determine whether counsel's performance was deficient. In doing so, we require more than the mere allegations that counsel failed to raise a meritorious issue, conducted insufficient investigation, or failed to present important evidence. FN74 We recently explained this standard in the context of capital post-conviction, where we held a post-conviction petitioner must show actions indicating that counsel breached some duty owed to him, or that counsel's judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance.FN75 While these were capital post-conviction cases, our interpretation of the Strickland requirement of “deficient performance” is not limited to post-conviction claims of ineffective assistance of counsel. In Wilhoit v. State FN76 we held counsel's performance was deficient when evidence showed counsel suffered from alcohol dependence and abuse and brain damage during defendant's trial. These difficulties affected counsel's actions and judgment, and his prejudicial failure to introduce important bite-mark evidence was deficient performance amounting to ineffective assistance of counsel. We continue to interpret the “deficient performance” requirement consistently, and require more than allegations that counsel's particular acts or omissions prejudiced a defendant.
FN74. Walker v. State, 933 P.2d 327, 333–34 (Okl.Cr.1997); Camron, 829 P.2d at 55. FN75. See, e.g., Mitchell v. State, 934 P.2d 346, 349–50 (Okl.Cr.1997); Walker, 933 P.2d at 336. FN76. 816 P.2d 545, 546 (Okl.Cr.1991).
In Subproposition A Hooper claims trial counsel was ineffective for failing to move to quash Hooper's arrest warrant and to suppress evidence derived solely from the arrest. Hooper relies on his Proposition I claim that his arrest was illegal because the affidavit in support of the arrest warrant had insufficient facts to show probable cause to arrest him. This argument has failed. As the affidavit and warrant were sufficient, Hooper's arrest was not illegal and he was not entitled to have the evidence resulting from his arrest suppressed. Counsel cannot be ineffective for failing to challenge a sufficient warrant. Hooper cannot show he was prejudiced by counsel's failure to challenge the arrest warrant and resulting evidence, and this subproposition is denied.
In Subproposition B Hooper claims trial counsel was ineffective in making a comment which, he claims, effectively waived a previously preserved error. Hooper objected vigorously to photographs of the victims' bodies immediately after they were removed from the grave, and the trial court sustained Hooper's objections to some of the photographs. After the photographs were published to the jury, the trial court noted for the record that he had not observed any jury reactions to the pictures which were out of the ordinary, and trial counsel Lee agreed. The jury did not hear this exchange. Hooper claims trial counsel's comment was gratuitous and damaging and waived an otherwise properly preserved issue for appellate review. Hooper fails to show how he was prejudiced by counsel's comment. This Court has not considered whether the photographs introduced at trial were inadmissible since Hooper does not allege that proposition of error. Even if we were to determine Lee waived the issue of photographs for review on appeal, Hooper cannot show this action prejudiced him since he does not raise the issue of admissibility. He seems to suggest this Court should determine whether the photographs were admissible in order to determine counsel's effectiveness, but it is Hooper's responsibility to raise this issue properly if he wishes it determined on its merits. As it is, Hooper merely alleges counsel waived what might have been a meritorious claim. This allegation does not show counsel was ineffective, and this subproposition is denied.
In Subproposition C Hooper claims counsel was ineffective in hiring Kathleen Lobato, the Defense's DNA expert. Hooper claims his DNA evidence did not establish a defense and supported the State's case. He claims counsel erred in failing to seek adequate funds to thoroughly test the blood on his tennis shoes. The State's expert had attempted to test his right tennis shoe but failed to extract DNA sufficient for analysis. Hooper hired Lobato to test the right shoe for Cindy's DNA. Lobato tested the shoe and found blood consistent with Cindy's, but also found blood inconsistent with Cindy or Hooper. She did not test the sample for the children's DNA. Hooper apparently introduced this evidence hoping to argue that an unknown person was at the scene but the State countered that the blood probably belonged to one of the children. This evidence could not have been unduly prejudicial in light of the other DNA evidence connecting Hooper to the crime as well as the other evidence presented against him. This was Lobato's first opportunity to testify as an expert. The State's expert was well qualified and had testified in numerous courts as a DNA expert. However, given the circumstances at trial this discrepancy could not have prejudiced Hooper since Lobato was able to extract a DNA sample where the State's expert could not.
Hooper was declared indigent the first day of trial, and the trial court negotiated with the Oklahoma Indigent Defense System throughout trial proceedings for Lobato's travel expenses and fee. Although Hooper did not know just where the money would come from, there was no doubt that Lobato would be paid. Hooper had requested the tests before he was declared indigent. Lobato testified that she had not tested Hooper's shoe for the children's DNA because she was not paid to do so. Hooper now claims that trial counsel was ineffective in failing to ask Lobato to test the shoe for the children's DNA, and in failing to declare Hooper indigent sooner or ask for more money. Hooper has not shown he was prejudiced by trial counsel's decision to test only for Cindy's DNA. Had Lobato determined the blood was not consistent with the children, that exculpatory evidence would still be weighed against the weight of evidence against Hooper, including the fact that Cindy's blood spotted both shoes. Hooper also has not shown counsel's action was not a reasonable strategic decision since trial counsel may have been aware that further testing was likely to reveal the spot was consistent with Tonya or Timmy. This subproposition is denied.
In Subproposition D Hooper claims counsel was ineffective in failing to argue that he could not have committed the crimes in the time available. Hooper constructs an elaborate timeline and argues that he could not have committed the crimes within that time. He claims trial counsel was ineffective for failing to make this argument at trial. The State correctly argues that this timeline is not persuasive based on the evidence at trial. Hooper responds that counsel did not have the burden of persuasion but only needed to raise a reasonable doubt for the jury. Hooper misunderstands his task on appeal. He must show this Court that counsel's performance prejudiced him. Failure to make an unpersuasive argument cannot be prejudicial, even if that argument might possibly have raised a reasonable doubt. This subproposition is denied.
In Subproposition E Hooper claims counsel must have been ineffective given the lack of mitigating evidence as well as the effect of mitigating evidence presented. Hooper first argues that counsel's duty to present mitigating evidence was not waived. The record shows that Hooper initially considered waiving his second stage defense, and counsel advised Hooper against that decision. When Hooper suggested this before trial, counsel Krogh told him they should put that decision “on the back burner” until first stage was finished. The morning second stage began Hooper decided not to waive his second stage defense and instructed counsel to “severely limit or restrict” direct examination of his mother. Both trial attorneys emphasized for the record that they did not intend to respect Hooper's wishes and felt it was their responsibility to make tactical decisions regarding the nature and extent of examination. The trial court explained the second stage proceedings to Hooper, told him now was his only opportunity to present mitigating evidence, and suggested he follow counsel's advice. Counsel called Hooper's mother and in a wide-ranging examination attempted to elicit details suggesting that Hooper was separated from his mother and neglected as a child. Hooper claims Krogh's “back burner” comment indicates counsel deferred preparation of mitigating evidence until after completion of the first stage. The record does not support this claim. Hooper also appears to argue he did not waive the right to present mitigating evidence. The record certainly would not support a waiver, and nobody suggests Hooper waived his right to present evidence.
Second, Hooper argues counsel ineffectively presented Dr. Murphy's evidence. Before trial Dr. Murphy reviewed Dr. Adams's comprehensive 11–page report, and summarized his conclusions on one page. Dr. Murphy testified in second stage to authenticate his summary and to identify Dr. Adams' report as the basis for his conclusions. The trial court admitted Dr. Murphy's summary as Defendant's Exhibit 3 and Dr. Adams' report as Defendant's Exhibit 4.FN77 Counsel never asked Dr. Murphy to examine Hooper and never talked to Dr. Adams before introducing his report into evidence. Dr. Murphy's summary states he believed Dr. Adams found evidence of “mild but probable brain damage”. On cross-examination Dr. Murphy confirmed he had never met Hooper and for that reason didn't have “enormous stock” in his conclusion. In rebuttal, Dr. Adams testified he found no evidence of brain damage. Neither Dr. Murphy nor Dr. Adams had any true mitigating evidence and their combined testimony was disastrous for Hooper: they told the jury Hooper did not have brain damage and had no particular trouble controlling his temper or behavior, and his learning disability would not have affected his capacity for violence or ability to reason in adverse circumstances.
FN77. Defendant's Exhibit 4 was a copy of a facsimile transmission. It is underlined with handwritten margin notes, and contains information that Hooper had been convicted at least once of misdemeanor assault and battery and was on probation at the time of the evaluation [see Proposition X].
Ample evidence in the record shows that Dr. Murphy did not wish to testify. The afternoon before second stage began, trial counsel Lee called Dr. Murphy; Dr. Murphy told Lee it would be unethical for him to give an opinion about Hooper since he had never examined him, and said any evidence he could give would be evidence in aggravation. Trial counsel Krogh subpoenaed Dr. Murphy for the next day. During an in camera hearing Krogh explained that counsel only wanted Dr. Murphy to authenticate his summary, so they could admit it, along with Dr. Adams' report, in evidence. Krogh said they had intended to question Dr. Murphy further but felt compelled for tactical reasons to introduce the summary, since they believed some comments were potentially mitigating. Krogh asked the court to declare Dr. Murphy a hostile witness, said Dr. Murphy's attitude caused counsel to modify their trial tactics, and admitted he was afraid of what Dr. Murphy might say.
Hooper argues that counsel used lack of funds as an excuse for their poor performance, and that counsel should have known better because Hooper was entitled to a psychiatric expert at State expense. The record reflects counsel knew this. Krogh said Dr. Murphy was paid to review records, given the limited defense funds. The trial court noted Hooper had not been denied any witnesses for lack of money. Krogh said they were not claiming lack of money diminished their defense. The record does not clearly support Hooper's assertion that counsel believed they could not afford to ask Dr. Murphy to examine Hooper.
Krogh then explained counsel originally intended to hire a psychological expert from out of state, but Lee knew of Dr. Murphy, felt he had experience in this area, and did not anticipate any problem. Counsel appeared to believe Dr. Murphy, who frequently testifies on behalf of persons facing the death penalty, would be able to express an opinion helpful to Hooper after reviewing another doctor's report of an evaluation conducted for a wholly separate purpose. Counsel also appeared to believe a diagnosis of learning disability would somehow affect Hooper's ability to make decisions and make him prone to violence. As a consequence, Drs. Murphy and Adams presented the jury with a full explanation of Hooper's learning disability, refuted counsel's apparent beliefs and damaged Hooper's case.
Hooper correctly argues counsel should have realized the State would attempt to call Dr. Adams as a witness if they admitted his report into evidence. Without Hooper's actions, Dr. Adams' testimony would have been privileged and inadmissible. Counsel's failure to talk to Dr. Adams before admitting his report into evidence was overwhelmingly prejudicial. Counsel wanted the jury to hear Dr. Murphy's conclusion that Dr. Adams had found evidence of probable brain damage. Their failure to ask Dr. Adams his interpretation of his own evaluation was inexplicable, since Dr. Adams had not found brain damage. The State merely suggests we should not consider “in hindsight” the disastrous effect of that decision. Assuming counsel will consider foreseeable consequences of acts and omissions is not hindsight.
Hooper raises serious questions about trial counsel's decisions to call Dr. Murphy and admit the two medical reports. Hooper has shown counsels' actions prejudiced him and he has met the second prong of Strickland. We now turn to the first prong and determine whether Hooper has shown deficient performance. We look to the record for evidence indicating that counsel breached some duty owed to Hooper, or that counsel's judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance. Strickland lists some basic duties defense counsel owes each client. These include 1) “a duty of loyalty, a duty to avoid conflicts of interest” FN78; 2) to advocate a defendant's cause; 3) to consult with him on important decisions; 4) to keep him informed of important developments; 5) to use skill and knowledge to render the trial a reliable adversarial testing process; FN79 and 6) a duty to investigate or make reasonable decisions rendering particular investigations unnecessary. FN80 In determining whether counsel's acts or omissions were outside the wide range of professionally competent assistance, this Court considers that counsel's function is to make the adversarial testing process work.FN81
FN78. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. FN79. Id. FN80. Strickland, 466 U.S. at 691, 104 S.Ct at 2066. FN81. Strickland, 466 U.S. at 690, 104 S.Ct at 2066.
Hooper relies on the record for evidence of counsels' unprofessional judgment. FN82 Essentially he complains about the quality of the mitigating evidence counsel chose to present, and claims counsel should have presented more or different evidence. We have held that counsel is not per se ineffective for failing to present mitigating evidence in a capital case. FN83 A thorough review of the record shows counsel presented a case in mitigation on Hooper's behalf. Hooper may wish counsel had done things differently, but “[e]ven the best criminal defense attorneys would not defend a particular client in the same way.” FN84 In determining deficient performance, this Court does not consider the consequences of conduct in isolation. Hooper has not shown why counsels' reasons for deciding to present Dr. Murphy, his summary, and Dr. Adams' report, or failing to talk to Dr. Adams, amount to ineffective assistance. We do not find counsels' acts and omissions created a complete breakdown of the adversarial testing process. Hooper does not meet the first prong of Strickland. He has not shown that counsels' performance was deficient.
FN82. Hooper filed a Motion for Evidentiary Hearing on issues of ineffective assistance of counsel, which we denied. I would grant Hooper's motion and remand these issues for an initial hearing in the district court, but I yield my view to the majority. In fairness, I believe we must provide an avenue for defendants to fully raise claims of ineffective assistance of counsel. Our capital post-conviction scheme requires petitioners to raise on direct appeal any issues of ineffective assistance supported by facts that were or could have been used in a direct appeal. To meet this requirement appellate counsel may engage in investigation. Hooper has conducted an investigation and presented this Court with a motion supported by affidavits as required by our rules. FN83. Wallace v. State, 893 P.2d 504, 510 (Okl.Cr.1995). FN84. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Hooper also claims several other deficiencies in second stage evidence. He suggests that counsel was ineffective in failing to call any witnesses other than Hooper's mother and stepfather. The record does not show this decision was ineffective. Hooper notes that Instruction 33, listing mitigating circumstances, contained incorrect information and listed factors which either had little support in evidence or were not necessarily mitigating. Hooper's age is wrong, but he does not show how this or the other factors listed prejudiced him.
Hooper claims trial counsel was ineffective for failing to object contemporaneously to the prosecutor's closing arguments and to Mrs. Jarman's victim impact testimony. Hooper's claim depends on the success of his allegations of prosecutorial misconduct and improper victim impact evidence. We have determined there was no prosecutorial misconduct (see Proposition V), and Mrs. Jarman's improper opinion evidence was not so prejudicial as to affect the jury's decision (see Proposition VII). Counsel cannot be ineffective for failing to object to these comments. Hooper has not shown he was prejudiced by counsel's actions.
In summary, Hooper raises several claims of ineffective assistance of counsel. Hooper fails to show prejudice on most of these claims. In one instance Hooper shows he was prejudiced by counsel's actions but has not demonstrated those actions constituted deficient performance. This proposition is denied. In Proposition XIV Hooper claims the accumulation of errors in the case requires relief. This Court has often held that where there is no individual error, there is no accumulation of error.FN85 A thorough review of the record and Hooper's propositions shows no prejudicial error occurred in the first stage of trial. No second stage error requires relief individually or in accumulation. This proposition is denied. FN85. McGregor, 885 P.2d at 1385.
MANDATORY SENTENCE REVIEW
In accordance with 21 O.S.1991, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of aggravating circumstances. Upon review of the record, we cannot say the sentence of death was imposed because the jury was influenced by passion, prejudice, or any other arbitrary factor.
As discussed above, evidence supports all three aggravating circumstances. In mitigation Hooper offered evidence that he 1) was kidnapped as an infant; 2) had a stormy and troubled childhood including several separations from his mother; 3) suffered from a learning disability which caused him to be argumentative and frustrated; 4) was impulsive and had difficulty completing projects; 5) had a history of teenage alcohol and substance abuse; 6) had received counseling; 7) was often a helpful and good person; and 8) loved and cared for animals. Instruction 33 listed in mitigation 1) lack of high school education; 2) any psychological problems based on the evidence at trial; 3) Hooper's childhood, adolescence and lack of nurturing relationship with his mother; 4) any learning deficit or disability; 5) Hooper's youth; and 6) any child abuse which may have been shown at trial.
After careful, independent review and consideration of the evidence supporting the aggravating circumstances, as well as the evidence offered in mitigation, we find the sentences of death factually substantiated and appropriate. Finding no error warranting modification or reversal, the Judgment and Sentence of the District Court of Canadian County is AFFIRMED. STRUBHAR, V.P.J., and JOHNSON, J., concur. LUMPKIN and LANE, JJ., concur in results.
LANE, Judge, concurring in results.
I concur in results by reason of stare decisis. I still maintain that 22 O.S.Supp.1996, § 984–984.2 does not apply during the second stage of a Murder in the First Degree trial. Only 21 O.S.Supp.1996, § 701.10 applies. See my special vote in Ledbetter v. State, 933 P.2d 880, 902–03 (Okl.Cr.1997).
Hooper v. Turnbull, 957 P.2d 120 (Okl.Cr.App. 1998). (PCR)
Defendant was convicted in the District Court, Canadian County, Edward C. Cunningham, J., of three counts of murder in the first degree and was sentenced to death on each count. Defendant appealed. The Court of Criminal Appeals, 947 P.2d 1090, affirmed. Defendant filed application for post-conviction relief. The Court of Criminal Appeals, Chapel, P.J., held that: (1) claims of ineffective assistance of trial counsel were barred by res judicata to the extent they had been raised on direct appeal; (2) trial counsel was not ineffective in failing to discover and use evidence to impeach testimony of defendant's wife; (3) trial counsel was not ineffective at sentencing phase in failing to discover and call two witnesses who allegedly would have provided mitigating evidence; and (4) defendant did not demonstrate ineffective assistance of appellate counsel merely by establishing issues that counsel failed to raise and then arguing merits of those issues. Application denied.
CHAPEL, Presiding Judge:
¶ 1 Michael Edward Hooper was tried by jury before the Honorable Edward C. Cunningham in the District Court of Canadian County, Case No. CF-93-601. He was convicted of three counts of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, § 701.7. At the conclusion of the first stage of trial, the jury returned verdicts of guilty. During sentencing, the jury found as to Counts I and III Hooper 1) knowingly created a great risk of death to more than one person; and 2) probably would commit criminal acts of violence that would constitute a continuing threat to society. As to Count II, the jury found Hooper (1) knowingly created a great risk of death to more than one person; 2) probably would commit criminal acts of violence that would constitute a continuing threat to society; and (3) committed the murder in order to avoid or prevent a lawful arrest or prosecution. Hooper was sentenced to death on each count. Hooper appealed his judgments and sentences to this Court and we affirmed.FN1 The United States Supreme Court has not yet ruled on Hooper's petition for certiorari. FN1. Hooper v. State, 947 P.2d 1090 (Okl.Cr.1997).
¶ 2 On July 21, 1997, Hooper filed an Application for Post-Conviction Relief directly with this Court. Under Oklahoma's post-conviction statutes, the only issues that can be raised in post-conviction are those which: “(1) [w]ere not or could not have been raised in a direct appeal; and (2) [s]upport a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent.” FN2 On review, this Court must determine: “(1) whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, (2) whether the applicant's grounds were or could have been previously raised, and (3) whether relief may be granted....” FN3 The Post-Conviction Procedure Act is not intended to provide a second appeal. FN4 This Court will consider neither issues which were raised on direct appeal and are barred by res judicata, nor issues which have been waived because they could have been, but were not, raised on direct appeal.FN5 FN2. 22 O.S.Supp.1995, § 1089(C). FN3. 22 O.S.Supp.1995, § 1089(D)(4)(a). FN4. Cannon v. State, 933 P.2d 926, 928 (Okl.Cr.1997). FN5. 22 O.S.Supp.1995, § 1089(C); Hooker v. State, 934 P.2d 352, 354 (Okl.Cr.1997); Moore v. State, 889 P.2d 1253, 1255-56 (Okl.Cr.), cert. denied, 516 U.S. 881, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995); Fowler, 873 P.2d at 1056-57.
¶ 3 Hooper raises two propositions of error, both claiming ineffective assistance of trial counsel. These claims are only appropriate under the capital post-conviction statute if they require fact-finding outside the direct appeal record.FN6 This Court has held: FN6. 22 O.S.Supp.1995, § 1089(D)(4). ineffective assistance of trial counsel claims are properly raised and may be considered on post-conviction only if they are based upon facts which were not available to the applicant's direct appeal attorney and thus could not have been made part of the direct appeal record. Stated in prohibitive terms, this Court may not review [petitioner's] post-conviction claims of ineffective assistance of trial counsel if the facts generating those claims were available to [petitioner's] direct appeal attorney and thus either were or could have been used in his direct appeal (emphasis in original).FN7 FN7. Walker v. State, 933 P.2d 327, 332 (Okl.Cr.), cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997). Hooper must demonstrate that the facts generating his claims of ineffective assistance were not available to direct appeal counsel.
¶ 4 In Proposition I Hooper claims trial counsel was ineffective for failing to: (1) investigate the facts of the case; (2) obtain funding for trial experts; (3) adequately prepare to cross-examine the State's witnesses; and (4) assert a defense. In this proposition, as well as in Proposition II, Hooper reasserts several claims that were raised and thoroughly argued on direct appeal. Post-conviction is neither a second appeal nor an opportunity for Hooper to re-raise or amend propositions of error already raised in the direct appeal brief. Hooper's claims regarding the time-line (going both to investigation and a theory of defense), funding for trial experts, questioning of Stefanie Duncan, and use of mental health experts at trial were raised in Hooper's direct appeal brief and are barred by res judicata. Hooper provides this Court with affidavits to support his remaining claims. However, with one exception, Hooper has not shown this material was unavailable to direct appeal counsel and much of the information is contained within the trial record.FN8 FN8. Charm v. State, 953 P.2d 47, 50 (Okl.Cr.1998); Mitchell v. State, 934 P.2d 346, 350 (Okl.Cr.), cert. denied, 521 U.S. 1108, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997).
¶ 5 Within his claim of ineffective preparation for cross-examination, Hooper alleges counsel was unprepared to impeach Hooper's ex-wife, Stefanie Duncan. Hooper submits affidavits from two of his friends who accused Duncan of theft, as well as an Oklahoma State Bureau of Investigation report noting Duncan had been arrested for embezzlement. None of these materials were contained in the direct appeal record, and the affiants were never contacted by trial counsel. This material was therefore unavailable to direct appeal counsel. Reviewing the claim on its merits, we find trial counsel was not ineffective for failing to discover or use this material. Duncan testified that she and Hooper had several times visited the field in which the victims' bodies were found, and that Hooper was violent towards her. The first point helped connect Hooper to the charged crimes but was not as important as the physical evidence which connected Hooper to the scene. The second point underscored the State's evidence that Hooper had a violent relationship with the victim, Cindy Jarman, but did not itself bear on the charged crimes. We do not find that trial counsel's omission in investigation undermined the proper functioning of the adversarial process or created an unreliable result.FN9 FN9. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984).
¶ 6 Proposition I contains several claims barred by res judicata, as well as claims which do not require fact-finding outside the direct appeal record. In the single claim properly raised under the post-conviction statutes we find counsel was not ineffective. Proposition I is denied.
¶ 7 In Proposition II Hooper claims trial counsel was ineffective for failing to: (1) investigate and pursue mitigating evidence and mitigation witnesses; and (2) prepare or present existing mitigation evidence effectively. Hooper's complaints regarding the mental health experts used at trial, as well as some of his complaints about limited use of Hooper's family members who testified, were raised in his direct appeal brief and are barred by res judicata. Hooper presents affidavits in support of his remaining claims but does not show the bulk of this material was unavailable to direct appeal counsel. Several of these affidavits accompanied Hooper's request for an evidentiary hearing, which was filed with his direct appeal, and he referred to those affidavits in his direct appeal brief.
¶ 8 Hooper claims trial counsel should have called several witnesses who could have testified about Hooper's effect on their lives. Regarding affidavits from Hooper's friends, we find this material was not available to direct appeal counsel. Considering this claim on its merits, we do not find counsel was ineffective for failing to discover and call these witnesses. Each affiant states he knew Hooper well in high school but had less contact with him after he married Duncan. Each affiant describes Hooper's marriage to Duncan as unhappy and violent, although neither saw Hooper hit Duncan. Only one affiant knew Cindy Jarman; he describes a troubled relationship but notes Hooper appeared fond of Jarman's children. The affidavits together describe a friendly but introverted person who abused alcohol and entered into troubled relationships. Given the other evidence presented in mitigation and the evidence presented to support the aggravating circumstances, we cannot conclude there is a reasonable probability that, with this evidence, the sentencer would have concluded the balance of aggravating and mitigating circumstances did not support a death sentence. FN10. Bryan v. State, 935 P.2d 338, 361 (Okl.Cr.), cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997).
¶ 9 Proposition II contains several claims barred by res judicata, as well as claims which do not require fact-finding outside the direct appeal record. In the single claim properly raised under the post-conviction statutes we find counsel was not ineffective. Proposition II is denied.
¶ 10 In both propositions of error, Hooper claims without argument that appellate counsel's failure to raise these issues on direct appeal constitutes ineffective assistance of appellate counsel. Insofar as some of these issues were raised on direct appeal, this claim is barred by res judicata. In determining the claims not raised on appeal, this Court uses a three-prong test for ineffective assistance of appellate counsel: (1) did appellate counsel actually commit the act giving rise to the claim of ineffective assistance; and if so, (2) was such performance deficient; (3) if we determine counsel's performance was deficient we will consider the substantive claim allegedly mishandled by appellate counsel, if that claim is otherwise appropriate for post-conviction review.FN11 Several of Hooper's claims fail the first part of this test. In the remaining claims, he establishes that appellate counsel failed to raise the issues, but offers no argument at all beyond arguing the substantive merits of the claims. We can only conclude Hooper is arguing that failure to raise these arguments in itself constitutes ineffective assistance. As we have held many times, failure to raise even a meritorious claim does not, in itself, constitute deficient performance.FN12 Hooper fails to show counsel's performance is deficient, and his substantive claims remain barred. Hooper's allegations of ineffective assistance of appellate counsel are denied. FN11. Walker, 933 P.2d at 333. FN12. See, e.g., Mitchell, 934 P.2d at 350; Walker, 933 P.2d at 336-37.
¶ 11 Rather than file a separate Application for Evidentiary Hearing, as required by Rule 9.7(D)(5),FN13 Hooper requests an evidentiary hearing within each proposition. As these requests are not in compliance with our Rules we deny Hooper's request for evidentiary hearings. FN13. Rule 9.7(D)(5), Rules of the Court of Criminal Appeals, Title 22, Ch.18, App. (1997). We note that, in any case, we determined Hooper's underlying propositions are barred or lack merit so an appropriate request for an evidentiary hearing would be denied.
¶ 12 We have carefully reviewed Hooper's applications for post-conviction relief and an evidentiary hearing, and find that Hooper is not entitled to relief. The Application for Post-Conviction Relief and Evidentiary Hearing is DENIED. JOHNSON, J., concurs. STRUBHAR, V.P.J., and LUMPKIN and LANE, JJ., concur in result.
LANE, Judge, concur in results:
¶ 1 I concur in results by reason of stare decisis. I maintain my disagreement with the majority in its interpretation of the new post-conviction relief statute as I expressed in Conover v. State, 1997 OK CR 39, 942 P.2d 229, 234-35(Lane, J., concur in result). LUMPKIN, Judge, concur in results:
¶ 1 While I concur in the results reached by the Court in this case, I disagree with the Court's determination that certain evidence, i.e. affidavits from Petitioner's friends and an OSBI report, was unavailable to Petitioner's direct appeal counsel. The Court's conclusions are in conflict with our reasoning in Walker v. State, 933 P.2d 327 (Okl.Cr.1997) (Lumpkin, J. concurring). In Walker, we found “this Court may not review ... claims of ineffective assistance of trial counsel if the facts generating those claims were available to Walker's direct appeal attorney and thus either were or could have been used in his direct appeal.” Walker, 933 P.2d at 332. See also McGregor v. State, 935 P.2d 332 (Okl.Cr.1997). Here, the facts were available to appellate counsel and could have been used in Petitioner's direct appeal.
¶ 2 The affidavits from Petitioner's friends were clearly available to Petitioner's trial and appellate counsel. Petitioner has provided no evidence that his friends were “unavailable or unwilling at the time of (his) direct appeal to provide sworn statements.” Walker, 933 P.2d at 332. In fact, one affiant admitted he was extensively interviewed by the State and was subpoenaed by the District Attorney's office to testify at trial. The second affiant was never asked to provide information regarding Petitioner, but “would gladly have done so” if he had been asked. Additionally, the second affiant did not accuse Stefanie Duncan of theft, as the Court's opinion suggests. Rather, the affiant merely testified that he heard about the theft but did not “know whether it happened.”
¶ 3 Likewise, it can hardly be said that information regarding Ms. Duncan's criminal past was unavailable to Appellant's trial and appellate counsel. Trial counsel surely could have obtained such information by discovery, by simple investigation, or merely asking the question. Moreover, Appellant has failed to provide this Court with any evidence to suggest this information was “either not in existence at the time his direct appeal was filed” or was “kept from his direct appeal attorney.” Walker, 933 P.2d at 332.
¶ 4 The teachings of Walker regarding unavailability are clear. Information which could have been discovered upon the exercise of reasonable diligence is not “unavailable.” Walker did not adopt some type of “don't ask don't tell” policy as a way of side stepping the requirement to raise issues at the first opportunity. Rather, Walker adopts a responsibility that has been with us through the ages, i.e. ask, and it shall be given you; seek, and ye shall find; knock, and it shall be opened unto you.FN1 Or as stated by John Dryden, “errors, like straws, upon the surface flow; He who would search for pearls must dive below.” FN2 Trial and direct appeal counsel have the opportunity to “dive for the pearls,” if in fact they exist. However, failure to exercise that opportunity, absent a showing of some external impediment which precluded them from doing so, constitutes a waiver of the issue in post-conviction proceedings.
FN1. See, e.g. Matthew 7:7. FN2. All for Love. Prologue
Hooper v. State, 142 P.3d 463 (Okla.Crim.App. 2006). (Direct Appeal After Resentencing)
Background: Following remand for re-sentencing in capital murder prosecution, 314 F.3d 1162, defendant waived his rights to jury trial, presentation of mitigating evidence, and direct appellate review. The District Court, Canadian County, imposed the death penalty on all three counts of first-degree murder. Defendant appealed.
Holdings: The Court of Criminal Appeals, Chapel, P.J., held that: (1) defendant was competent, at time of re-sentencing proceedings, to make valid waivers of his rights to jury trial, presentation of mitigating evidence, and direct appellate review; (2) sufficient evidence supported finding of aggravating circumstance that defendant was a continuing threat to society; and (3) death sentences were not imposed under influence of passion, prejudice, or any other arbitrary factor, including defendant's own expressed wish to receive the death penalty. Affirmed; motion to supplement record with extra-record material granted. Lumpkin, V.P.J., concurred in results, with opinion.
CHAPEL, Presiding Judge.
¶ 1 Michael Edward Hooper was tried by a jury and convicted of Counts I–III, Murder in the First Degree, in violation of 21 O.S.1991, § 701.7(A), in the District Court of Canadian County, Case No. CF–93–601.FN1 The jury found as to Count I that Hooper (1) knowingly created a great risk of death to more than one person, and (2) probably would commit criminal acts of violence that would constitute a continuing threat to society; as to Count II, that Hooper (1) knowingly created a great risk of death to more than one person, (2) probably would commit criminal acts of violence that would constitute a continuing threat to society, and (3) committed the murder in order to avoid or prevent a lawful arrest or prosecution; and as to Count III, that Hooper (1) knowingly created a great risk of death to more than one person, and (2) probably would commit criminal acts of violence that would constitute a continuing threat to society. In accordance with the jury's recommendation, the Honorable Edward C. Cunningham sentenced Hooper to death in all three counts. This Court affirmed Hooper's convictions and sentences, and the United States Supreme Court denied certiorari.FN2 Hooper's post-conviction appeal was denied.FN3 The Tenth Circuit Court of Appeals affirmed the federal district court's grant of a new sentencing hearing based on ineffective assistance of counsel.FN4 The case was remanded to the District Court of Canadian County for resentencing.
FN1. Hooper's trial was held in June, 1995. The crimes occurred in December, 1993. FN2. Hooper v. State, 1997 OK CR 64, 947 P.2d 1090, cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998). FN3. Hooper v. State, 1998 OK CR 22, 957 P.2d 120. FN4. Hooper v. Mullin, 314 F.3d 1162 (10th Cir.2002). The United States Supreme Court denied certiorari. Hooper v. Mullin, 540 U.S. 838, 124 S.Ct. 97, 157 L.Ed.2d 70 (2003).
¶ 2 After the remand Hooper filed a pro se pleading, “Motion for Negotiated Plea and Waiver of Rights”, asking that the sentence of death be upheld. FN5 This motion was properly treated as a waiver of Hooper's rights to a jury trial on resentencing and to present mitigating evidence. In April, 2004, the trial court ordered an independent competency evaluation. At a July 24, 2004, hearing, Hooper waived his right to a jury trial on the issue of competency. The trial court reviewed the competency evaluation submitted by the expert who had been appointed by the court, and found that Hooper was competent. The trial court separately considered Hooper's waiver of a jury trial for resentencing. A sentencing hearing was held on September 8 and September 30, 2004, and the trial court imposed the death penalty on all three counts. At the formal sentencing hearing on October 27, 2004, Hooper waived his right to direct appellate review. FN5. OR. 608. The sentence of death was no longer in effect, and the trial court had no authority to uphold it.
¶ 3 This Court has carefully scrutinized cases in which a defendant essentially volunteers for the death penalty, by waiving his rights to a jury trial, presentation of mitigating evidence, and direct appellate review. We have developed a strict procedure which must be followed in such cases. This is ultimately designed to ensure that the defendant has the capacity to understand the choice between life and death, and to knowingly and intelligently waive his right to appeal his sentence.FN6 Our requirements ensure that a capital defendant's waiver of rights comports with the general standard set forth by the United States Supreme Court to determine whether a capital defendant may end his appeals: “whether [the defendant] has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” FN7
FN6. Wallace v. State, 1995 OK CR 19, 893 P.2d 504, 510; Grasso v. State, 1993 OK CR 33, 857 P.2d 802, 806. FN7. Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506, 16 L.Ed.2d 583 (1966).
¶ 4 Before permitting a waiver of the rights to jury trial and to present mitigating evidence, the trial court must order an independent competency evaluation.FN8 After making the determination that a defendant is competent to waive a jury trial, a trial court must follow several steps to ensure a defendant is knowingly and intelligently waiving the presentation of mitigating evidence. FN8. Fluke v. State, 2000 OK CR 19, 14 P.3d 565, 567; Grasso, 857 P.2d at 806. (1) The court must inform the defendant of the right to present mitigating evidence, and what mitigating evidence is. (2) The court must inquire both of the defendant and his attorney (if not pro se) whether he or she understands these rights. (3) The court should also inquire of the attorney if he or she has attempted to determine from the defendant whether there exists any evidence which could be used to mitigate the aggravating circumstances proven beyond a reasonable doubt by the prosecution. (4) If such information has been given, the attorney must advise the court what that mitigating evidence is; if the defendant has refused to cooperate, the attorney must relate that to the court. (5) The trial court must inquire of a defendant and make a determination on the record whether the defendant understands the importance of mitigating evidence in a capital sentencing scheme, understands such evidence could be used to offset the aggravating circumstances proven by the prosecution in support of the death penalty, and the effect of failing to present that evidence. (6) After being assured the defendant understands these concepts, the court must inquire of the defendant whether he or she desires to waive the right to present such mitigating evidence. (7) Finally, the court should make findings of fact pursuant to Grasso of the defendant's understanding and waiver of rights.FN9 FN9. Wallace, 893 P.2d at 512–13.
¶ 5 At the outset, we compliment the trial court on its handling of these proceedings. The trial court scrupulously followed these steps, and repeatedly offered to allow Hooper to change his mind at virtually every stage of the proceedings. We also are compelled to confirm the procedural posture of this case. Hooper received a resentencing hearing below, and this Court is conducting a mandatory sentence review of the death sentences imposed at that proceeding. While the State seems somewhat confused regarding the nature of this hearing, with prosecutors and appellate attorneys suggesting that Hooper was entering a guilty plea, the trial court made clear that, pursuant to the federal court remand, it was conducting a resentencing hearing. The trial court heard and considered evidence, as is common in trial proceedings but not done in plea proceedings. No plea proceedings were conducted and the record nowhere reflects that a guilty plea was entered at any time. There was no question of guilt, as Hooper had already been convicted of the crimes, and one cannot plead guilty to a particular sentence.
¶ 6 Before beginning resentencing proceedings, the court appointed an expert to conduct an independent competency evaluation, and urged Hooper to submit to an evaluation by an expert retained by defense counsel as well. The court's expert conducted a thorough evaluation. The expert's written competency evaluation, which is included in the record, shows that he examined Hooper thoroughly on his capacity to understand the choice between life and death, and the rational and intelligent reasons Hooper gave for preferring execution to life imprisonment. The expert specifically noted that Hooper did not express delusional beliefs regarding what would happen if he were executed. During the hearing, defense counsel stated that he accepted the expert's conclusion of competency. Counsel noted that Hooper had been evaluated by a defense expert but did not provide the trial court with any expert report.FN10 Defense counsel stated that he had no evidence available which contradicted the expert's conclusion that Hooper was competent to stand trial. Based on the evidence before it, the trial court made an initial determination of competency. FN10. The proffer of mitigating evidence prepared for the trial court includes a summary of the defense expert's findings. The expert concluded that Hooper was severely and profoundly depressed.
¶ 7 The sentencing hearing was held on September 8 and 30, 2004. Before beginning the sentencing hearing on September 8, and during the hearing itself, the trial court offered Hooper another opportunity to have a jury trial. Hooper continued to waive that right. The trial court engaged in a long colloquy with the defendant regarding the definition, nature and purpose of mitigating evidence. Defense counsel stated that Hooper had explicitly directed counsel not to contact experts, family, friends, or anyone else for the purpose of presenting mitigating evidence, and Hooper confirmed this. Counsel presented the trial court with an oral and written proffer of mitigating evidence, including expert evidence, which counsel would present if allowed, and discussed other areas which counsel would investigate if allowed. Both Hooper and defense counsel assured the court that Hooper understood the purpose and importance of mitigating evidence and his right to present it, and Hooper unequivocally stated he did not wish to present mitigating evidence. The trial court formally found Hooper competent to understand the nature and purposes of the proceeding, to waive his right to a jury, and to waive his right to present mitigating evidence. The court found that Hooper had asked the trial court to conduct a resentencing hearing and had specifically prohibited counsel from calling witnesses or presenting mitigating evidence. The hearing was continued while the trial court reviewed evidentiary materials presented by the State.
¶ 8 At the September 30 continuation of the sentencing hearing, the trial court began by again addressing the issue of Hooper's competency to waive his right to jury trial. Counsel confirmed that Hooper had been seen by a mental health provider, who suggested he be medicated for chronic depression. However, Hooper was taking only arthritis medication at the time of the hearing. Counsel stated that he felt Hooper was suffering from chronic serious depression, but was competent for purposes of the proceedings. The trial court found Hooper competent to assist counsel and understand the nature, purposes and consequences of the proceedings. The Court once again offered Hooper a jury trial on resentencing, and Hooper again waived that right. The trial court offered Hooper the opportunity to withdraw his March 19 pro se motion, which asked for a sentence of death. Hooper declined to withdraw that motion and stated he would accept whatever sentence the trial court found appropriate. As a final preliminary matter, the trial court noted that Hooper could ask to stop the proceedings at any time in order to consult with counsel.
¶ 9 Before announcing its decision, the trial court made a lengthy and very specific record as to what evidence it had considered. This evidence included evidence presented by the State and defense in the first and second stages of Hooper's trial. It did not include voir dire, opening statements, victim impact evidence, or argument by attorneys. It also did not include evidence which both parties had agreed should be omitted. The trial court also reviewed the tender of mitigation evidence prepared by Hooper's defense counsel for resentencing. The trial court again asked Hooper whether he wished that evidence to be presented on his behalf, and Hooper said he did not. The trial court, noting counsel's opinion that Hooper suffered from severe depression, found Hooper competent to waive presentation of mitigating evidence.
¶ 10 The trial court once again determined that Hooper was knowingly and intelligently waiving the right to present mitigating evidence. The trial court noted that defense counsel were experienced and accomplished capital attorneys, and that Hooper was proceeding against their advice. In a lengthy conversation, the trial court asked whether Hooper had been pressured in any way to disregard counsels' advice, defined evidence in aggravation and mitigation, and asked whether Hooper understood the purposes of that evidence. FN11 Hooper said he had not been pressured, that he understood the issue, that he had discussed his decision with counsel many times, and that he did not wish to present mitigating evidence. The trial court asked whether Hooper understood that he was facing the death penalty, and the difference between that sentence and the sentences of life and life without parole. Hooper said he understood. The trial court asked whether Hooper understood that he could not change his mind and ask an appellate court to allow him to present mitigating evidence after waiving that right. Hooper said he understood and preferred not to present mitigating evidence. FN11. The trial court had conducted this same conversation in the September 8 hearing.
¶ 11 The trial court entered formal findings of fact on these issues. FN12 The trial court repeated its formal findings of fact regarding competency and Hooper's waivers which had been entered on September 8. The trial court further entered formal findings of fact that Hooper understood the importance of aggravating and mitigating evidence, his right to present mitigating evidence, and that defense counsel advised Hooper to investigate and present mitigating evidence in addition to the evidence tendered on September 8. The trial court found that Hooper understood that failure to present mitigating evidence could result in imposition of the death penalty, understood the difference between life and death, and understood the different sentences which might be imposed. The trial court made these findings to support the determination that Hooper was competent to waive the presentation of mitigating evidence, and that that waiver was knowing and intelligent. FN12. Wallace, 893 P.2d at 513.
¶ 12 After reviewing the evidence and hearing argument, the trial court made findings regarding the allegations in the Bill of Particulars. The trial court found beyond a reasonable doubt that, as to Counts I, II and III, Hooper knowingly created a great risk of death to more than one person. As to all three counts, the trial court found beyond a reasonable doubt that Hooper would commit criminal acts of violence that would constitute a continuing threat to society, based on the brutal and callous nature of Hooper's actions, his efforts to conceal the crimes, and evidence of prior unadjudicated violent acts. As to Counts II and III, the trial court also found beyond a reasonable doubt that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution. The court considered, and put on the record, mitigating evidence which had been presented on Hooper's behalf during his first trial, as well as the proffer of mitigating evidence tendered to the court for this sentencing proceeding. The trial court found as a matter of law that the aggravating circumstances were not outweighed by the mitigating evidence. The trial court again noted that Hooper was competent to waive his rights to jury trial and to present mitigating evidence, and had done so against the advice of counsel. The trial court sentenced Hooper to death on all three counts, but emphasized that the sentences were based on the law and the facts, not on Hooper's personal wishes.
¶ 13 Formal sentencing was held on October 27, 2004. After inquiry of counsel and Hooper, the trial court determined that Hooper was competent to continue with the proceedings. The court determined that Hooper understood this Court was required by statute to conduct a mandatory sentence review. The trial court discussed Hooper's right to appellate review, and made a preliminary determination that Hooper did not wish to initiate a direct appeal of his sentences. The court determined that Hooper had not been pressured in any way to waive his right to a direct appeal. The trial court determined that Hooper understood the difference between life and death, and that he would be put to death by lethal injection if the trial court imposed the death sentences. The trial court then formally imposed sentences of death on Counts I, II and III.
¶ 14 After the imposition of the death penalty, the trial court discussed Hooper's right to appeal those sentences. Hooper directed counsel, in writing, not to file either a direct appeal from the sentences or a post-conviction challenge. The trial court questioned Hooper and determined that he understood his right to direct appeal and that a mandatory sentence review would occur whether or not an appeal was filed. After this exchange the trial court found Hooper understood the proceedings and was competent to waive his right to a direct appeal from the resentencing proceedings. The trial court further found that Hooper had the benefit of experienced and capable capital counsel. The court found that Hooper understood the difference between life and death and had made a knowing and intelligent waiver of his right to appeal. This meticulous record shows that Hooper had the capacity to understand the choice between life and death, and to knowingly and intelligently waive his right to appeal his sentence, and did knowingly and intelligently waive that right. FN13 FN13. Duty v. State, 2004 OK CR 20, 89 P.3d 1158, 1160; Wallace, 893 P.2d at 510; Grasso, 857 P.2d at 806.
¶ 15 Hooper claims in Proposition I that this Court's current competency standard in these cases is inadequate to ensure that mentally ill defendants can make a valid waiver of the right to present mitigating evidence and to a direct appeal. Hooper essentially concedes that the trial court followed the law in determining that Hooper was competent to knowingly and intelligently waive his rights to a jury trial, to present mitigating evidence, and to appeal. Hooper claims that the standard questions regarding competency to stand trial are not adequate to determine whether a mentally ill defendant can make a valid waiver.FN14 Hooper suggests that, in addition to the factors currently used to determine competency, we add three more: (1) whether a person is suffering from a mental disease or defect; (2) if that disease or defect prevents him from understanding his legal position and the options available to him; and (3) if his condition does not prevent him from understanding his legal position and available options, does it prevent him from making a rational choice among his options.FN15 He suggests that these questions are necessary to fulfill the United States Supreme Court requirement that a court determine whether a defendant can appreciate his position and make a rational choice with respect to continuing or abandoning further litigation, or instead suffers from a mental disease, disorder, or defect which may substantially affect his capacity.FN16 However, Oklahoma's combination of questions which must be asked to determine competency, and which must be specifically asked where capital defendants wish to waive their statutory rights to a jury trial, presentation of mitigating evidence, and appeal, are comparable to Hooper's proposed questions. A defendant whose mental disease or defect either prevents him from understanding his legal position and available options, or prevents him from making a rational choice among his options, will not be found competent under our current law.FN17
FN14. Those questions are: (a) whether the defendant understands the nature of the charges against him; (b) whether he can consult with his attorney and rationally assist in the preparation of his defense; (c) if the answer to questions (a) or (b) is no, whether the defendant can attain competency within a reasonable time if appropriately treated; (d) if the defendant is a person requiring treatment for mental illness or mental retardation as defined in the Oklahoma Statutes, and, if so, specifically why the defendant is incompetent; (e) whether, if the defendant were released without appropriate treatment, he would presently pose a danger to himself or others. 22 O.S.2001, § 1175.3(E).
FN15. These questions are based on those asked in Ross ex rel. Smyth v. Lantz, 392 F.Supp.2d 236, 238 (D.Conn.2005) and Rumbaugh v. Procunier, 753 F.2d 395, 398 (5th Cir.1985), and implied in an Eighth Circuit case, Smith ex rel. Mo. Pub. Defender Comm'n v. Armontrout, 812 F.2d 1050, 1057 (8th Cir.1987). Those cases interpret the Rees standard, which asks if a defendant can appreciate his position and make a rational choice with respect to continuing or abandoning further litigation, or instead suffers from a mental disease, disorder, or defect which may substantially affect his capacity. Rees, 384 U.S. at 314, 86 S.Ct. at 1506, FN16. Rees, 384 U.S. at 314, 86 S.Ct. at 1506. FN17. Hooper suggests that the Tenth Circuit has required more than our current law provides. In Hays v. Murphy, 663 F.2d 1004 (10th Cir.1981), the Tenth Circuit found the state court determination of competency inadequate where a capital defendant wished to waive all appeals after his conviction was affirmed on direct appeal. That case was well before the imposition of the current statutory and case law requirements for capital competency issues, and the minimal state procedures used to uphold competency there would not be adequate under current law.
¶ 16 Hooper's claim in Proposition I rests substantially on his contention that he is mentally ill and that his mental illness affected his ability to make a valid waiver. The record does not support the claim that Hooper was unable to make a valid waiver due to a mental illness. The record does indicate that defense counsel and a defense expert believed Hooper to be suffering from chronic, serious depression. However, neither counsel nor the defense expert believed that his condition affected Hooper's ability to make a valid waiver. The expert who performed the independent competency evaluation specifically found that Hooper, while depressed, did not present with symptoms of a mental illness, and offered a rational basis for his decisions. Further, although the State's expert evaluation answers the standard competency questions, the evaluation itself explores Hooper's competency specifically as it relates to the death penalty and capital punishment issues. Hooper presents this Court with affidavits suggesting that now, after receiving medication and treatment, he would make a different choice.FN18 This material tells the Court what Hooper might do now, faced with the same options he had at the time of his sentencing hearing. However, it does not show that Hooper was unable to make a valid waiver at that time. The trial court thoroughly examined Hooper, and considered the expert evaluation and Hooper's attorney's information, before determining Hooper was competent to validly waive his rights to jury trial and mitigating evidence, and to appeal. As we find above, our current procedures protect the rights of a defendant who wishes to waive the rights to jury trial, presentation of evidence and appeals. Hooper was competent to make a valid waiver, and this proposition is denied.
FN18. On November 8, 2005, Hooper filed a request to supplement the record with evidence of his present mental health, bearing on his ability to make a valid waiver at the time of his resentencing proceedings. We consider this material as part of our mandatory sentence review. While our Rules limit the ways in which this Court will normally consider that material, that limitation applies only to cases in which an appeal is pursued. Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006) (extra-record material offered to supplement an appeal may only be offered in connection with a timely filed motion for new trial or a particular claim of ineffective assistance of trial counsel). Rule 3.11(B) does not apply here, where the Court is not considering a direct appeal or post-conviction claim. In this mandatory sentence review, we are required by statute to determine whether Hooper's sentence of death was factually substantiated by evidence of aggravating circumstances, and was imposed under the influence of passion, prejudice or any arbitrary factor. 21 O.S.2001, § 701.13(C). The scope of materials we may consider in making this determination is not limited by whether a proffered filing might be considered on traditional appellate review. Hooper's motion to supplement the record is GRANTED.
¶ 17 We have found that Hooper entered a valid waiver of his right to a direct appeal from his sentences of death. Simply put, by this waiver Hooper gave up the right to contest evidentiary issues arising in the resentencing trial. In Propositions II, III, and IV Hooper complains of particular evidence, or categories of evidence, which he argues the trial court should not have considered.FN19 Hooper has waived these claims and we do not consider them.
FN19. In Proposition II Hooper claims the trial court should not have allowed the State to present evidence in aggravation by way of transcript without a showing that the witnesses were unavailable. In Proposition III Hooper claims the trial court erred by reading transcripts from a previous trial in private rather than having the transcripts read in a public hearing. In Proposition IV Hooper claims the trial court should not have considered Officer Abrahamsen's testimony regarding statements made by a victim.
¶ 18 In Proposition V Hooper claims that insufficient evidence supported the trial court's finding of the continuing threat aggravating circumstance beyond a reasonable doubt. The trial court found this aggravating circumstance was supported by (a) the brutal and callous nature of the crimes themselves, including the gunshot wounds at close range to the face and head of all three victims, and the circumstance that one victim was fleeing at the time she was shot; (b) Hooper's conscious and deliberate efforts to conceal and destroy evidence and conceal the commission of the crimes; and (c) evidence of prior unadjudicated acts of violence by Hooper against his former wife. This Court has upheld use of the circumstances of the crime,FN20 and of unadjudicated offenses,FN21 to support this aggravating circumstance. Hooper argues the evidence was too remote in time to support a contention that he is presently a continuing threat to society. Although Hooper presented no mitigating evidence, the trial court considered his proffer of mitigating evidence. This included prospective testimony that Hooper had adjusted well to prison life. The trial court did not err in concluding, from the evidence in the record, that Hooper presently constitutes a continuing threat to society. This proposition is denied.
FN20. Wackerly v. State, 2000 OK CR 15, 12 P.3d 1, 18; Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 398; Fitzgerald v. State, 2002 OK CR 31, 61 P.3d 901, 906 n. 26. FN21. Wackerly, 12 P.3d at 16–17; Lockett v. State, 2002 OK CR 30, 53 P.3d 418, 428; Malicoat, 992 P.2d at 397; Charm v. State, 1996 OK CR 40, 924 P.2d 754, 763. I continue to believe that evidence of unadjudicated offenses should not be admitted to support the continuing threat aggravating circumstance. I find that, even without this evidence, sufficient evidence supports the finding of each aggravating circumstance beyond a reasonable doubt.
¶ 19 This Court is required by statute to conduct a mandatory sentence review, to determine whether the death sentences were imposed under the influence of passion, prejudice, or any other arbitrary factor; and if the trial court's findings of statutory aggravating circumstances are supported by the evidence.FN22 As noted above, our standard of review is whether the defendant had the capacity to understand the choice between life and death, and to knowingly and intelligently waive his right to appeal his sentence. FN23 We find the record amply establishes that Hooper understood the choice between life and death, that he was competent, and that he knowingly, intelligently and voluntarily waived his rights to jury trial, to present mitigating evidence, and to appeal.FN24 The trial judge meticulously put on the record all the evidence he considered which supported the aggravating circumstances beyond a reasonable doubt.FN25 Although Hooper did not present mitigating evidence, the trial court considered the proffer of mitigating evidence presented by defense counsel, and reviewed the mitigating evidence admitted in the original sentencing trial.FN26 The record supports our conclusion that the trial court's imposition of the death penalty was based on the law, facts and circumstances of the case, and is supported by the evidence. The evidence considered by the trial court supports the statutory finding of aggravating circumstances. The sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor, including Hooper's own expressed wish to receive the death penalty.FN27
FN22. 21 O.S.2001, § 701.13(C). Hooper has also waived his right to oral argument, and no oral argument is necessary. His Application for Oral Argument, filed November 8, 2005, is DENIED. Duty, 89 P.3d at 1161 n. 4. FN23. Grasso, 857 P.2d at 806. FN24. Fluke, 14 P.3d at 569. FN25. This includes the facts and circumstances of the crimes themselves, Hooper's subsequent actions taken to conceal the crimes, and prior unadjudicated violent acts by Hooper. FN26. This includes evidence that Hooper currently suffers from serious and profound depression; the possibility that Hooper suffers from other mental disorders; the troubled circumstances of his childhood; his childhood learning disabilities, frustration, and problems with impulse control and completion of projects; his history of alcohol and substance abuse and treatment; that Hooper loved animals, is involved with is family, has behaved well in prison, and is helpful and good. FN27. Id.
Decision
¶ 20 The Judgments and Sentences of the District Court are AFFIRMED. Hooper's Application for Oral Argument is DENIED. Hooper's Motion to Supplement the Record with Extra–Record Material is GRANTED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
C. JOHNSON, A. JOHNSON and LEWIS, JJ.: concur. LUMPKIN, V.P.J.: concur in results.
LUMPKIN, Vice–Presiding Judge: concur in results.
¶ 1 I concur in the results reached by the Court in this case. However, I disagree with the Court's manner of handling the ex parte materials addressed in 18. Ex parte filings are not evidence in the case as they have not been subjected to an adversarial testing in the trial court. Our Court rules and case law have consistently held that matters of this type are submitted and accepted for a very limited purpose, i.e., to make a threshold showing that an evidentiary hearing in the District Court is warranted. See Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006). See also Lott v. State, 2004 OK CR 27, ¶ 135, 98 P.3d 318, 351; Short v. State, 1999 OK CR 15, ¶ 93, 980 P.2d 1081, 1108. Untested ex parte filings are never to be accepted as part of the record on appeal for determination of issues presented on the merits. See Dewberry v. State, 1998 OK CR 10, ¶ 9, 954 P.2d 774, 777 (materials not presented to the trial court for review are not a part of the appellate record and should not be considered by this Court).
¶ 2 Reviewing the material presented in the present case, for their proper limited purpose, I find an evidentiary hearing is not supported. While Appellant may feel better about himself due to the medication he now takes, it in no way changes the fact he was competent, fully understood the rights and admonitions given by the District Court, and knowingly waived these rights. He was unequivocal at that time and his current equivocation should not be allowed to override that decision. Judge Cunningham was meticulous, thorough, and repeatedly gave Appellant an opportunity to change his mind, which he declined. Therefore, I find the decision of this Court to be factually and legally correct.
Hooper v. Mullin, 314 F.3d 1162 (10th Cir. 2002). (Habeas)
Petitioner, convicted in state court of three counts of first degree murder and sentenced to death, having exhausted state-court appeals, 947 P.2d 1090, and postconviction relief, 957 P.2d 120, sought federal habeas relief. The United States District Court for the Western District of Oklahoma, Vicki Miles-LaGrange, J., granted petition in part and denied in part. Petitioner and state cross appealed. The Court of Appeals, Baldock, Circuit Judge, held that: (1) petitioner was prejudiced by counsel's conduct at penalty phase of trial; (2) counsel's conduct at penalty phase was constitutionally deficient; (3) prosecutor's remarks during closing argument at guilt phase were reasonable inferences drawn from record; (4) prosecutor's remarks during closing argument at penalty phase, which improperly solicited sympathy for victims, did not result in fundamentally unfair proceeding; (5) trial court's erroneous admission of victim-impact evidence at penalty phase was harmless; (6) defendant was not prejudiced by counsel's alleged deficiencies at guilt phase; and (7) cumulative effect of individual harmless errors did not render petitioner's trial unfair. Affirmed. Paul J. Kelly, Jr., Circuit Judge, filed opinion concurring in part and dissenting in part.
BALDOCK, Circuit Judge.
An Oklahoma jury convicted Petitioner Michael Edward Hooper on three counts of first degree murder in the shooting deaths of his twenty-three-year-old former girlfriend, Cynthia Jarman, and her two children, Tonya Kay Jarman and Timmy Glen Jarman. The jury imposed the death sentence for each count. The Oklahoma Court of Criminal Appeals affirmed Petitioner's convictions and sentences on direct appeal and denied post-conviction relief. See Hooper v. State, 947 P.2d 1090 (Okla.Crim.App.1997); Hooper v. State, 957 P.2d 120 (Okla.Crim.App.), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998). On habeas review, the federal district court granted Petitioner relief from his death sentences after concluding defense counsel's representation during the capital sentencing proceeding was constitutionally ineffective. See 28 U.S.C. § 2254. The court denied relief on numerous other claims in which Petitioner challenged both his convictions and his sentences. Petitioner appealed the district court's denial of habeas relief on his remaining claims. The State cross-appealed the district court's grant of habeas relief from the death sentences. The district court granted a certificate of appealability as to three of Petitioner's claims. This Court granted a COA as to two additional claims.FN2 We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We affirm.
FN2. Because Petitioner filed his appeal after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we address only claims for which a COA has been granted. 28 U.S.C. § 2253(c)(1). A COA is not required for the State or its representative to appeal a district court order granting relief. Fed. R.App. P. 22(b)(3).
I.
Petitioner met Cynthia Jarman in early 1992, and they dated through the summer of 1993. Their relationship was physically violent, and Petitioner threatened to kill Jarman on several occasions. In July 1993, Jarman began dating Petitioner's friend, Bill Stremlow. In November, three weeks before the murders, Jarman began living with Stremlow. Before moving in with Stremlow, Jarman confided in a friend that Petitioner had previously threatened to kill her if she ever lived with another man. On December 6, 1993, Jarman confided in a friend that she wanted to see Petitioner one last time. On the morning of December 7, 1993, Jarman dropped Stremlow off at work and borrowed his truck for the rest of the day. Jarman picked up her daughter, Tonya, at school that afternoon. At that time, Tonya's teacher saw Tonya get into Stremlow's truck next to a white man who was not Stremlow. Jarman failed to pick up Stremlow from work that evening as planned. Later that night, Stremlow's truck was found burning in a field. The truck's windows were broken out. An accelerant had been used to set the truck on fire.
On December 10, a farmer and police officers discovered the bodies of Jarman and her two children buried in a shallow grave in another field. At the grave site, police found broken glass, tire tracks, a footprint, shell casings, a child's bloody sock, and a pool of blood near a tree with a freshly broken branch. On top of the grave, police found a tree branch in which a nine millimeter bullet was embedded. The bullet pinned white fibers to the branch. The fibers were consistent with the white fibers in Tonya Jarman's jacket. The jacket had a charred hole in the hood. The branch appeared to have been broken off of a tree near the pool of blood. Each victim had suffered two gunshot wounds to the face or head. Although investigators never recovered the bullets, the wounds were consistent with nine millimeter ammunition.
Police arrested Petitioner and searched his parents' home. The police recovered a nine millimeter weapon Petitioner had purchased several months prior to the murders. Police also recovered two shovels with soil consistent with soil from the grave site, two gas cans, and broken glass consistent with glass found in Tonya's coat and near the gate at the field. Police officers also seized Petitioner's tennis shoes. The shoes made prints similar to those found at the murder scene, and DNA tests revealed the presence of blood consistent with Cynthia Jarman's blood on the shoes. At trial, a ballistics expert testified that shell casings from the crime scene matched casings fired from Petitioner's weapon. Petitioner's former wife testified that Petitioner was familiar with the field where the bodies were found, and that he previously had visited the field with her on several occasions.
Based on this evidence, the jury convicted Petitioner of three counts of first degree murder. During the capital sentencing proceeding, the jury found two aggravating factors existed with respect to all three victims: (1) Petitioner had created a great risk of death to more than one person, and (2) Petitioner was a continuing threat to society. Additionally, the jury found a third aggravating factor existed with respect to Tonya Jarman: Petitioner had committed the murder to avoid arrest or prosecution for the murder of Cynthia Jarman. After considering Petitioner's mitigating evidence, the jury imposed the death sentence for each count.
Petitioner asserts (1) he was denied effective assistance of counsel during sentencing; (2) prosecutorial misconduct prejudiced the jury's deliberations at both the guilt and sentencing stages; (3) his constitutional rights were violated by the State Court's admission of victim impact statements; (4) he was denied effective assistance of counsel during the guilt stage of his trial; and (5) the accumulation of errors in this case so infected the proceedings with unfairness that he was deprived of a fair and reliable trial and sentencing.
II.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), if a claim is adjudicated on its merits in state court, a petitioner is entitled to federal habeas relief only if he can establish the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). We presume state court factual findings are correct, and place the burden on the petitioner to rebut that presumption with clear and convincing evidence. Id. § 2254(e)(1). If the state courts did not decide a claim on its merits and the claim is not procedurally barred, we review the district court's legal conclusions de novo and its factual findings for clear error. Hooker v. Mullin, 293 F.3d 1232, 1237 (10th Cir.2002).
A.
Petitioner contends his two defense attorneys, Richard Krogh and Mitchell Lee, were constitutionally ineffective in their development and use of psychological evidence during the capital sentencing proceeding. The Oklahoma Court of Criminal Appeals (OCCA), applying Strickland, found counsels' actions prejudicial, but determined that Petitioner had not demonstrated deficient performance based on the facts contained in the record. OCCA denied Petitioner's request for an evidentiary hearing. On habeas review, the federal district court agreed Petitioner established prejudice and granted an evidentiary hearing limited to the issue of counsel's performance at sentencing. After the evidentiary hearing, the district court found counsel's performance constitutionally deficient, and granted Petitioner relief from his death sentences. The Government cross-appeals this portion of the district court's order.
1.
Prior to the Jarman murders, Petitioner received anger management counseling. In April 1993, after six months of counseling, Russell Adams, Ph.D., gave Petitioner several neuropsychological tests to diagnose possible learning disabilities and to assist Petitioner in making career and educational plans. According to Dr. Adams' report, Petitioner's cognitive functioning was “largely adequate” and his intelligence average, but his difficulty spelling might be evidence of a learning disability. The tests also indicated that Petitioner had some emotional and psychological problems, and that he had difficulty controlling his anger and coping with everyday problems. The report noted that Petitioner's ability to remain controlled in stressful situations was “greatly improved.”
In August 1994, defense counsel retained a psychologist, Philip Murphy, Ph.D., to review Dr. Adams' report. Based solely on Dr. Adams' findings, Dr. Murphy prepared a one-page summary report. In his report, Dr. Murphy indicated there was evidence of “mild but probable brain damage” that could increase the likelihood of violence, especially if Petitioner was under the influence of alcohol or other substances. In addition, Dr. Murphy noted Petitioner might suffer from a “serious psychiatric thought disorder.” Petitioner had a psychological “profile often ... associated with psychotic behavior ... [and] definite difficulties with interpersonal relationships.” Dr. Murphy qualified his “impressions” by noting that both “possible disorders require further diagnostic investigation to confirm.”
Dr. Murphy sent this report to defense counsel in December 1994. He did not hear from defense counsel again until June 1995, after the jury found Petitioner guilty of murdering Jarman and her two children. That afternoon, trial counsel Lee called Dr. Murphy to request his testimony at the capital sentencing proceeding scheduled for the following day. Dr. Murphy informed counsel he ethically could not testify because he had never personally evaluated Petitioner. He also informed counsel that what he could say about Petitioner likely would be aggravating rather than mitigating. On the phone, defense counsel agreed Dr. Murphy would not testify. But later that day, the defense subpoenaed him to testify the following morning.
During an in camera hearing, counsel explained that they wanted Dr. Murphy to authenticate his report so they could admit into evidence both his report, and the report of Dr. Adams' on which he relied. Defense counsel requested permission to treat Dr. Murphy as a hostile witness in light of the extreme hostility Dr. Murphy directed toward defense counsel and court personnel. Counsel also admitted they were afraid of what Dr. Murphy might say on the witness stand. Defense counsel never spoke with either Dr. Murphy or Dr. Adams about the reports prior to the sentencing phase.
During the capital sentencing proceeding, Dr. Murphy identified both reports and the trial judge admitted each into evidence. Dr. Murphy told jurors he did not put “enormous stock” in his conclusions because he did not personally evaluate Petitioner. He further testified that Dr. Adams, having evaluated Petitioner in person, would be in the best position to address whether Petitioner had brain damage. The State then called Dr. Adams in rebuttal. Contrary to Dr. Murphy's limited assertions, Dr. Adams testified Petitioner had a mild learning disability, but no brain damage. In addition, Dr. Adams asserted that, although Petitioner had some psychological problems, those problems would not cause him to lose touch with reality or make him incapable of controlling himself or his anger. Dr. Adams found “no special problems.”
2.
To succeed on an ineffective assistance claim, Petitioner must establish both that his attorneys' representation was deficient and that this deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. “[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding.” Id. at 696, 104 S.Ct. 2052. AEDPA, however, further circumscribes our habeas review. See Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002). Because the OCCA applied the correct federal law, Strickland, to deny Petitioner relief on this claim, we consider only whether the OCCA did so in an objectively reasonable manner. See 28 U.S.C. § 2254(d)(1); see also Cone, 122 S.Ct. at 1852.
In denying Petitioner relief, the OCCA first addressed Strickland's prejudice inquiry, finding counsel's use of this psychological evidence prejudiced Petitioner's defense. We agree. Neither Dr. Murphy nor Dr. Adams offered any mitigating evidence and their combined testimony was disastrous for Petitioner's defense. The jury was left with unchallenged expert opinions that Petitioner did not suffer from brain damage, had no particular trouble controlling his temper, and that his learning disability would not have affected his capacity for violence or ability to reason in adverse circumstances.
The determinative issue in this appeal is whether the OCCA applied Strickland in an objectively reasonable manner in concluding Petitioner did not establish counsels' performance was constitutionally deficient. Although the OCCA determined the testimony of Drs. Murphy and Adams “was disastrous for Petitioner,” that counsel's failure to talk to Dr. Adams prior to his trial testimony was “inexplicable” and “overwhelmingly prejudicial,” and that Petitioner had raised “serious questions about trial counsel's decisions to call Dr. Murphy and admit the two medical reports,” the OCCA found trial counsel's performance was not constitutionally deficient. The court noted that Petitioner had not shown why counsel's reasons for presenting the psychological evidence, or for failing to speak with Dr. Murphy or Dr. Adams regarding the reports, amounted to ineffective assistance. In denying relief, the OCCA also denied Petitioner's request for an evidentiary hearing during which Petitioner could have explored and challenged trial counsel's reasons for the prejudicial acts and omissions.
On habeas review, the federal district court found the OCCA's application of Strickland objectively unreasonable. In light of the record, we agree with the district court. We recognize “[t]here are countless ways to provide effective assistance in any given case” and “[e]ven the best criminal defense attorneys would not defend a particular client in the same way.” Id. at 689, 104 S.Ct. 2052. Accordingly, we consider whether counsels' investigation and presentation of the psychological evidence during Petitioner's capital sentencing proceeding were the result of reasonable trial strategy, rather than the product of “neglectful” or otherwise erroneous representation. Sallahdin v. Gibson, 275 F.3d 1211, 1240 (10th Cir.2002). In doing so, we review counsel's performance with great deference. We consider all the circumstances, making every effort to “eliminate the distorting effects of hindsight,” and to “evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. But “the mere incantation of ‘strategy’ does not insulate attorney behavior from review.” Fisher v. Gibson, 282 F.3d 1283, 1296 (10th Cir.2002). We must consider whether that strategy was objectively reasonable. See id. at 1305; Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). FN3
FN3. The dissent suggests that trial counsel's strategy cannot be deemed objectively unreasonable, and thus deficient, unless “ no competent counsel would have preceded the way Mr. Hooper's counsel did,” citing Cone, 122 S.Ct. at 1854, and Bullock v. Carver, 297 F.3d 1036, 1049 (10th Cir.2002). Neither Cone nor Bullock stand for the proposition cited by the dissent. Cone reiterates Strickland's strong presumption that counsel's conduct was reasonable, but does not contain any reference to the no-competent-counsel standard. The quoted language appears in Bullock in a parenthetical to an Eleventh Circuit case citation. The no-competent counsel language in Bullock clearly is dicta as Bullock applies the Strickland objectively reasonable standard in reaching its holding. AEDPA mandates this court to consider whether the OCCA applied clearly established Supreme Court precedent. Strickland's objectively reasonable standard is the clearly established Supreme Court precedent for ineffective assistance claims, not the “no-competent-counsel” standard.
Defense counsel's penalty-stage strategy was to present evidence suggesting Petitioner might have brain damage which could have produced violent conduct. Counsel also argued Petitioner's frustration with his mental limitations resulted in a violent eruption culminating in the murder of his former girlfriend and her two children. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Here, however, defense counsel deliberately pursued this strategy without conducting a thorough investigation.
Mr. Lee testified at the federal evidentiary hearing that he intentionally did not have Dr. Murphy further evaluate Petitioner. Lee claimed he feared the result of such an evaluation would be more harmful than helpful because a more comprehensive examination might establish conclusively that Petitioner did not suffer from brain damage. Lee reasoned that, by relying instead only on Dr. Murphy's report suggesting Petitioner might have brain damage, the defense could still argue that possibility in mitigation. He testified that he thought Dr. Murphy's one-page report “was going to be as good as it was going to get,” but acknowledged that further psychological testing could have provided mitigating evidence.FN4
FN4. While not making an explicit credibility finding, the district court questioned lead counsel's testimony about strategy: “Upon reflection of the record in this case, the questions asked by the parties, and the Court's observations of Mr. Lee's demeanor at the evidentiary hearing, the Court is not convinced Mr. Lee's answers on cross-examination regarding his ‘tactical decision’ to not investigate and pursue further psychological testing were his opinions at the time of Petitioner's trial.”
Defense counsel's strategic decision was not based on a “thorough investigation of law and facts relevant to plausible options.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. 2052. Under the specific facts of this case, counsel's judgment was not objectively reasonable.FN5 “A decision not to investigate cannot be deemed reasonable if it is uninformed.” Fisher, 282 F.3d at 1296 (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052); see also Battenfield v. Gibson, 236 F.3d 1215, 1229 (10th Cir.2001) (holding defense counsel's failure to investigate rendered any resulting strategy unreasonable). Although defense counsel feared further investigation might prevent his arguing to the jury that Petitioner might have brain damage, Lee also admitted that he had no idea what additional testing might reveal. Lee was aware of Petitioner's background, including Petitioner's abduction at an early age, previous suicide attempts, and several visits to mental health professionals, which strongly suggested Petitioner had psychological problems. Dr. Murphy's report also suggested Petitioner suffered from psychological problems. The report specifically recommended further diagnostic investigation.
FN5. We specifically do not address under what circumstances constitutionally competent counsel must seek psychological evaluation of a capital defendant. In this case, defense counsel specifically chose a defense strategy that required presentation of psychological evidence in mitigation. Having made that strategic decision, counsel's presentation of evidence without further investigation and in an ill-informed and unprepared manner resulted in constitutionally ineffective assistance.
Defense counsel specifically chose to present, as mitigating evidence, the possibility that Petitioner might have brain damage and other psychological problems. Having made that strategic decision, however, Petitioner's counsel then presented this evidence without any further investigation, in an unprepared and ill-informed manner. As a result, defense counsel's examination of Drs. Murphy and Adams was disastrous. Defense counsel never spoke to either Dr. Murphy or Dr. Adams prior to trial and had no idea what these experts would say on the witness stand. See Fisher, 282 F.3d at 1294, 1295 (granting habeas relief where, among other things, trial transcript revealed that “throughout most of [defense counsel's] examination of witnesses ... he had no idea what answers he would receive to his questions;” as a result, defense counsel's questions “essentially undermined” petitioner's defense). A “decision not to undertake substantial pretrial investigation and instead to ‘investigate’ the case during the trial [i]s not only uninformed, it [i]s patently unreasonable.” Fisher, 282 F.3d at 1296. In addition, although the defense did not intend to call Dr. Adams as a mitigation witness, defense counsel should have foreseen that the State might use him in rebuttal after the defense specifically relied on his report as mitigating evidence. Had counsel not offered this testimony, Dr. Adams report would have remained privileged and inadmissible.
Under the facts of this case, we conclude defense counsel made an objectively unreasonable decision to rely on Dr. Murphy's testimony and Dr. Murphy's and Dr. Adams' reports, without adequately investigating that evidence.FN6 Further, defense counsel presented this evidence in an unprepared, uninformed, and disastrous manner. For these reasons, we agree with the federal district court that Petitioner's defense attorneys' performance was objectively unreasonable and, thus, constitutionally deficient. The OCCA's contrary conclusion constitutes an objectively unreasonable application of Strickland. We therefore affirm the district court's decision granting Petitioner habeas relief from his death sentences.FN7
FN6. The dissent asserts that defense counsel's decision to present this evidence cannot be deficient because the decision does not “so clearly outweigh[ ]” the alternative of not presenting the evidence. That would be an appropriate inquiry if counsel were making a fully informed choice between several plausible alternatives. See Cone, 122 S.Ct. at 1853-54. Here, however, Defense counsel made an uninformed strategic choice. The decision to present the evidence was influenced by counsel's inadequate investigation and preparation, rather than by strategic considerations. FN7. Given our resolution of this claim, we need not address Petitioner's remaining claims challenging counsel's effectiveness at sentencing. See, e.g., Fisher, 282 F.3d at 1289-90.
B.
Petitioner also asserts the prosecutor's closing argument, during both the trial's guilt and penalty stages, was improper because (1) the prosecutor misstated the evidence by arguing Tonya escaped and Petitioner chased her down and coldly shot her in the face; (2) the prosecutor impermissibly solicited sympathy for the victims by elaborating on this theory; and (3) the prosecutor's comments, when combined with victim impact testimony, were so egregious that Petitioner is entitled to relief without any further showing of prejudice.FN8 Because these challenged remarks do not implicate a specific constitutional right, Petitioner is entitled to habeas relief only if he can establish that the prosecutor's argument, viewed in light of the trial as a whole, resulted in a fundamentally unfair proceeding. See Donnelly v. DeChristoforo, 416 U.S. 637, 643, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Neill v. Gibson, 278 F.3d 1044, 1058 (10th Cir.2001), cert. denied, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002).
FN8. Although we affirm the district court's order granting Petitioner habeas relief from his death sentences, we address Petitioner's challenges to the prosecutor's remarks made during the capital sentencing proceeding. This issue may arise again during resentencing and, in any event, is intertwined with Petitioner's challenge to the victim-impact evidence, another second-stage claim we also must address. See, e.g., Battenfield, 236 F.3d at 1225, 1235-36 (addressing propriety of prosecutor's second-stage argument, despite granting petitioner habeas relief from his death sentence because his attorney's representation was constitutionally deficient).
During the guilt-stage closing argument, the prosecutor argued that when Petitioner shot Cynthia and Timmy Jarman, Tonya Jarman escaped from the truck and fled. The prosecutor asserted that Petitioner chased Tonya, firing a shot that missed the child but pierced her jacket hood, and then catching her, shot her twice in the face and head. The prosecutor also asserted that Tonya “was left to die there in the woods while her blood was spilling onto the ground.” Petitioner argues that because no eyewitnesses observed the murders, the prosecutor's argument went beyond the evidence admitted at trial.
The OCCA and the district court held these remarks were reasonable inferences drawn from the record. We agree. The prosecutor presented evidence that police located a pool of blood some distance from the tire tracks and broken glass, and a short distance from the grave. Fibers consistent with Tonya's jacket were found near the pool of blood. DNA experts could not exclude Tonya or Cynthia as the source of the blood. Police found a spent casing matching the bullets in Petitioner's gun near the pool of blood. A branch on top of the grave was embedded with a bullet fired from Petitioner's gun. The embedded bullet had pinned fibers consistent with Tonya's jacket into the branch. Tonya's coat had a hole in the hood which appeared to be caused by a hot object going through it. This evidence collectively supported the prosecutor's argument. The prosecutor properly may comment on the circumstances of the crime made known to the jury during trial. See Fowler v. Ward, 200 F.3d 1302, 1312 (10th Cir.2000), overruled on other grounds by Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see also, Clayton v. Gibson, 199 F.3d 1162, 1174 (10th Cir.1999); Moore v. Gibson, 195 F.3d 1152, 1172 (10th Cir.1999). The prosecutor also possesses reasonable latitude in drawing inferences from the record. See Duvall v. Reynolds, 139 F.3d 768, 795 (10th Cir.1998); Moore, 195 F.3d at 1172. The prosecutor's argument was a fair comment on the evidence, and we affirm the district court on this issue.
Petitioner next argues the prosecutor improperly solicited sympathy for the victims. During the second-stage closing argument, the prosecutor argued more dramatically and in more detail that Tonya escaped and Petitioner hunted her down and callously shot her. The prosecutor stated:
At some point, Tonya managed to get away and flee into the woods. The moment Tonya stepped from that truck and headed for the woods, everyone's worst nightmare came true for her. If you think back, many of us children had the nightmare that I'm referring to, the nightmare of running from something that you cannot get away from. As children, many of us in those dreams in those nightmares were being chased by an evil monster. Tonya Jarman, on that night, had this nightmare become a reality for her. She was being chased through the woods by an evil monster bent on killing her, which he did, this Defendant did. I want you to imagine with me for a moment what that little girl went through as she moved from the car and ran through the woods with the Defendant after her. It was obvious from the evidence that she did not get very far before, at some point, she was fired at, and that bullet went whizzing through her coat, through the hood of her coat and into a tree branch. Now, we don't know how long a time passed between the time she was shot and the time she was caught, but it must have seemed like a terribly, terribly, terribly long time. Imagine the horror that Tonya felt when, as she ran from the Defendant, she was caught and turned around and he once again looked that little girl in the face and shot her just below her left eye. After that, he then executes her as well with the second shot and then left that little girl to die alone in the woods with her blood spilling onto the ground.
Petitioner also challenges the prosecutor's statements that “[t]o understand why this Defendant murdered two young, innocent children is to fully realize the depth of his ruthlessness behind his stone cold, evil eyes,” and “[s]ome of us may never be able to escape the haunting images of the photographs of Cynthia and Tonya and Timmy, which show what this Defendant did and what he's capable of doing in the future.”
The OCCA held that this “expanded ... argument approaches improper solicitation of sympathy for the victim, but it is based on the evidence presented” and, therefore, did not warrant relief. The district court held OCCA's decision was reasonable. See 28 U.S.C. § 2254(d). We agree. Although the prosecutors remarks were improper, the argument, viewed in light of the trial as a whole, did not result in a fundamentally unfair proceeding. The facts of the crime itself invoke sympathy even absent prosecutorial argument. See Moore, 195 F.3d at 1172; Duvall, 139 F.3d at 795. The prosecution's theory of the murders was based on substantial evidence. In addition, the court instructed the jury to base its decision only on the evidence received, and not to allow sympathy to affect its deliberations. We presume the jury followed these instructions. See Hale v. Gibson, 227 F.3d 1298, 1325 (10th Cir.2000).
Finally, Petitioner asserts the prosecutor's comments were so egregious, particularly when considered with the victim-impact evidence, that he should be entitled to relief without requiring any further showing of prejudice. See Brecht v. Abrahamson, 507 U.S. 619, 638 n. 9, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Brecht did not “foreclose the possibility that in an unusual case, a deliberate and especially egregious error ... might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence the jury's verdict.” Id. But, as we stated above, the prosecutor's remarks are largely based on reasonable inferences from the evidence. Any error was not sufficiently egregious to warrant habeas relief.
C.
We next address Petitioner's claim the trial court erred by admitting victim-impact testimony during the capital sentencing proceeding. Pursuant to 22 Okla. Stat. § 984(1), the trial court permitted three members of the victims' families to testify at the capital sentencing proceeding that they believed Petitioner deserved to die. Although the OCCA concluded the trial court properly admitted this testimony, we agree with Petitioner that the trial court's decision to admit the testimony is contrary to clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
The Supreme Court has held that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). In so holding, the Court overruled its earlier decisions in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989). See Payne, 501 U.S. at 811, 817, 830, 111 S.Ct. 2597. Nonetheless, we have recognized that “ Payne left one significant portion of Booth untouched.... [T]he portion of Booth prohibiting family members of a victim from stating ‘characterizations and opinions about the crime, the defendant, and the appropriate sentence’ during the penalty phase of a capital trial survived the holding in Payne and remains valid.' ” Hain, 287 F.3d at 1238-39 (quoting Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597). Therefore, the trial court erred by admitting this victim-impact testimony during Petitioner's capital sentencing proceeding. See id. at 1239. Nonetheless, this constitutional error was harmless because it did not have a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (further quotation omitted); see also Willingham, 296 F.3d at 931 (applying Brecht's harmless-error analysis to similar claim).
Payne also provides that victim-impact evidence that is “so unduly prejudicial that it renders the trial fundamentally unfair” deprives a capital defendant of due process. 501 U.S. at 825, 111 S.Ct. 2597. Because the victim-impact evidence did not have that effect here, however, the OCCA reasonably denied Petitioner relief on this due-process claim. See Willingham, 296 F.3d at 931; United States v. Chanthadara, 230 F.3d 1237, 1273-74 (10th Cir.2000). Finally, because the trial court's constitutional error in admitting this victim-impact evidence was harmless, and this evidence did not otherwise result in a fundamentally unfair trial, defense counsel were not constitutionally ineffective for failing to object to it. Accordingly, the OCCA also reasonably denied Petitioner relief on this ineffective-assistance claim.
D.
Petitioner also argues that his defense attorneys abandoned his defense during the guilt stage and were otherwise ineffective under Strickland. Relying on United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), Petitioner first argues defense counsel abandoned Petitioner's defense, warranting habeas relief without the need for him to show any resulting prejudice. Because the OCCA did not specifically address this claim, we review it de novo. See Romano, 278 F.3d at 1150.
A criminal defendant is deprived of his Sixth Amendment right to effective representation “if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, ... mak[ing] the adversary process itself presumptively unreliable.” Cronic, 466 U.S. at 659, 104 S.Ct. 2039; Cone, 122 S.Ct. at 1850-51. “[A]n attorney who adopts and acts upon a belief that his client should be convicted ‘fail[s] to function in any meaningful sense as the Government's adversary.’ ” Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir.1988) (quoting Cronic, 466 U.S. at 666, 104 S.Ct. 2039). Nonetheless, prejudice will be presumed under Cronic only “ ‘if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.’ ” Cone, 122 S.Ct. at 1851 (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039; emphasis added).
The record does not support the conclusion that defense counsel entirely failed to subject the prosecution's case to meaningful adversarial testing, or that counsel turned on Petitioner or believed he should have been convicted. Defense counsel cross-examined the State's guilt-stage witnesses, made objections to the State's evidence, presented some evidence in Petitioner's defense, and made opening and closing arguments. See Cooks v. Ward, 165 F.3d 1283, 1296 (10th Cir.1998) (holding counsel's performance did not amount to actual or constructive denial of counsel such that prejudice should be presumed where defense counsel conducted limited cross-examination, made evidentiary objections and gave closing argument). Petitioner's defense attorneys did not “abandon [their] duty of loyalty ... effectively joining the state in an effort to attain [a] conviction,” such that counsel's performance can be deemed per se ineffective. Davis v. Executive Dir. of Dep't of Corr., 100 F.3d 750, 756-57 & 757 n. 3 (10th Cir.1996) (further quotation omitted).
Petitioner next contends that even if his attorneys did not completely abandon his defense, their guilt-stage representation was still constitutionally ineffective. To succeed on these claims, Petitioner must establish both that his attorneys' representation was deficient and that the deficiency prejudiced his defense. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To establish prejudice, Petitioner must show “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. 2052. Because the OCCA applied the appropriate standard, Strickland, in denying these claims, AEDPA further circumscribes our review. See Cone, 122 S.Ct. at 1852. Under AEDPA, we consider only whether the OCCA applied Strickland in an objectively reasonable manner. See Cone, 122 S.Ct. at 1852. Petitioner raises several examples of his counsel's alleged ineffectiveness during the guilt stage. We examine each in turn.
Petitioner first argues his counsel failed to move to quash his arrest warrant and suppress the evidence seized as a result of that arrest. Although Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) generally precludes a federal habeas court from reviewing a state court's resolution of a Fourth Amendment challenge to the lawfulness of a search or seizure, we will consider whether defense counsel was ineffective for failing to assert such a Fourth Amendment challenge in the first place. See Kimmelman v. Morrison, 477 U.S. 365, 368, 382-83, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). To establish Strickland prejudice on this claim, Petitioner must show both that his Fourth Amendment claim challenging the arrest warrant is meritorious and that a reasonable probability exists that the verdict would have been different absent the excludable evidence. Id. at 375, 106 S.Ct. 2574. The OCCA held defense counsel was not constitutionally ineffective for failing to challenge the arrest warrant because the affidavit accompanying the warrant provided enough information to form a substantial basis for probable cause. The district court found this conclusion was objectively reasonable. We agree. The affidavit is a four-page, single-spaced document containing dates of interviews and describing the investigation. The sworn affidavit names all informants. The information contained therein connected Petitioner to the crimes with sufficient particularity to satisfy the probable cause standard. We have little difficulty affirming the district court's denial of relief on this point, particularly because Petitioner fails to identify any reason why the warrant was defective.
Petitioner next argues his counsel was ineffective for waiving the issue of whether the trial court improperly admitted photographs of the graves. Over defense counsel's objection, the trial court admitted photographs of the victims' bodies at the grave site and further permitted the State to use a slide projector to show the jury these photographs. Later, however, defense counsel concurred in the trial judge's observation, made outside the jury's presence, that he did not observe any “reactions that were out of the ordinary by the jury in looking at these pictures. I don't think they were offended in any way.” Defense counsel also noted for the record that the trial court's decision permitting the State to use the slide projector was appropriate.
Petitioner now asserts that defense counsel, with these remarks, was constitutionally ineffective in waiving the previously preserved objections. The OCCA held Petitioner failed to show any prejudice because Petitioner never attempted to challenge these photographs on direct appeal. The district court found this conclusion reasonable, and we concur. Defense counsel's challenged comments did not waive any claim Petitioner later sought to pursue. Nor did the jury hear these comments, which counsel made at sidebar. Thus, Petitioner has failed to demonstrate any prejudice from his counsel's comments.
Petitioner also alleges his counsel ineffectively handled the testing and presentation of DNA evidence. When the police arrested Petitioner, the officers noticed what appeared to be blood stains on his left shoe. The State's DNA expert was unable to recover any blood from the left shoe, however, the expert found blood on Petitioner's right shoe that was consistent with Cynthia Jarman's blood and inconsistent with 99.999% of the rest of the Caucasian population. At the defense attorneys' request, the defense DNA expert tested only Petitioner's left shoe. Unlike the State's DNA expert, the defense expert found blood on the left shoe. The blood was not Petitioner's, but could have been Cynthia Jarman's. In addition, the defense expert found another, unidentified person's blood on that shoe. Because defense counsel asked the defense expert to compare the blood she found on the left shoe only to Petitioner and Cynthia Jarman, the defense expert testified she could not eliminate either Tonya or Timmy Jarman as the source of this other blood.
Petitioner argues his defense expert's testimony failed to support his defense and, instead, bolstered the State's DNA evidence. He also argues defense counsel failed to seek adequate state funds to insure thorough DNA testing, and defense counsel erred in selecting a DNA expert who was underqualified. The OCCA denied Petitioner relief because the defense's presentation of its DNA evidence did not prejudice Petitioner. The district court concluded this determination was reasonable. We agree. The State's expert already established that blood consistent with Cynthia Jarman's blood was on one of Petitioner's shoes. The defense expert's testimony that Cynthia Jarman's blood also might have been on the other shoe fails to add anything more to the State's case. In addition, a great deal of other evidence linked Petitioner to the killings. Therefore, no reasonable probability exists that the jury would have acquitted Petitioner had the defense expert not testified that blood consistent with Cynthia Jarman's blood was on both Petitioner's left and right shoe. Moreover, Petitioner fails to assert any additional or different DNA evidence that could have been presented in his defense, nor how a more qualified DNA expert would have assisted in his defense.
Petitioner also argues defense counsel was ineffective for failing to question the medical examiner concerning the exact time the victims died. Petitioner contends trial counsel failed to explore the defense that he did not have enough time to commit the murders. Contrary to Petitioner's assertions, defense counsel questioned the medical examiner on this point, and the medical examiner was unable to give a definite answer. Further, Petitioner's counsel did argue that Petitioner did not have time to commit the murders. During trial, counsel elicited testimony from Petitioner's stepfather that he saw Petitioner at home at 3:20 p.m., and that Petitioner returned home around 6:30 p.m. The victims were last seen around 3:45 p.m., and Stremlow's burning truck was discovered around 9:00 p.m. that evening. During guilt stage closing arguments, Petitioner's counsel argued that Petitioner did not have enough time to kill the victims, move the truck, and walk the seven and a half miles back to his house in three hours. Thus, contrary to Petitioner's assertions, his counsel explored this theory. Simply because the jury did not accept the defense's version of the facts does not mean counsel was ineffective.
Finally, Petitioner asserts defense counsel ineffectively cross-examined State witnesses. Petitioner specifically challenges only counsel's guilt-stage cross-examination of Petitioner's former wife, Stephanie Duncan. The State called Duncan to testify that she and Petitioner had visited the field where the bodies were found on several previous occasions. On cross-examination, however, defense counsel elicited Duncan's testimony that Petitioner had physically abused her during their marriage. This opened the door for the State's inquiry resulting in Duncan's testimony that Petitioner had tried to kill her on several occasions.
Regardless of whether defense counsel's performance was constitutionally deficient in eliciting this testimony, no reasonable probability exists that had jurors not heard Duncan's testimony, they would have acquitted Petitioner. The record already included a great deal of evidence linking Petitioner to the Jarman murders and detailing Petitioner's pattern of violence toward Cynthia Jarman. See Moore v. Marr, 254 F.3d 1235, 1241 (10th Cir.2001) cert. denied, 534 U.S. 1068, 122 S.Ct. 670, 151 L.Ed.2d 584 (2001) (Defendant was not denied effective assistance of counsel as result of counsel's failure to impeach witness where there was overwhelming evidence against defendant, independent of witness' testimony). Likewise, no reasonable probability exists that the jury would have acquitted Petitioner if defense counsel had impeached Duncan's credibility with evidence that she had been accused of stealing from Petitioner's friend, had been arrested in 1992 for embezzlement, had initiated fights and physically beaten Petitioner during their relationship, and had struck her own mother. We agree with the district court that Petitioner cannot establish the prejudice component of Strickland and that the OCCA reasonably denied relief on this claim.
E.
Finally, Petitioner claims cumulative error warrants habeas relief. Because we affirm the district court's order granting Petitioner relief from his death sentences, however, we consider Petitioner's cumulative-error argument only with respect to the trial's guilt stage. Although we found the trial errors Petitioner identified individually harmless, the “cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.” Duckett v. Mullin 306 F.3d 982, 992 (10th Cir.2002) (quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990)). “A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Id.
The errors Petitioner identified did not, even when accumulated, have a sufficient prejudicial effect to deny Petitioner a fair trial. Extensive evidence supported the jury's finding of guilt. No reasonable probability exists that the jury would have acquitted Petitioner absent the errors. We agree with the district court that Petitioner is not entitled to relief based on cumulative error and that the OCCA reasonably denied relief on this claim.
III.
In light of defense counsel's constitutionally ineffective handling of the defense's mitigating psychological evidence, we AFFIRM the district court order granting Petitioner relief from his death sentences. We also AFFIRM the district court's denial of any further habeas relief.
PAUL KELLY, JR., Circuit Judge, concurring in part and dissenting in part.
I concur in the court's opinion, with the exception of the resolution of the claim of ineffective representation during sentencing. I respectfully dissent from this court's holding that the OCCA's determination that Mr. Hooper's counsel did not render deficient performance constitutes an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See 28 U.S.C. § 2254(d)(1). The record fully supports the OCCA's holding on the lack of deficient performance so it cannot be an unreasonable application of Strickland. There are two levels of deference here. First, only if we could conclude that the OCCA's application of Strickland was objectively unreasonable-not merely erroneous, incorrect, or contrary to what we might decide on direct appeal-is habeas relief on this claim warranted. See Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002); Williams v. Taylor, 529 U.S. 362, 410-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). That is because “[t]he federal habeas scheme leaves primary responsibility with the state courts for these judgments, and authorizes federal-court intervention only when a state-court decision is objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002) (per curiam). Second, under Strickland, a reviewing court presumes that counsel's decisions were an exercise of reasonable professional judgment and considers all of the circumstances, keeping in mind that the ultimate inquiry is whether the trial is a “reliable adversarial testing process.” 466 U.S. at 688, 688-90, 104 S.Ct. 2052.
Applying these standards, counsel made a reasonable strategic choice after less than full investigation given the facts. The trial record suggests scant evidence that Mr. Hooper suffered from brain damage or a learning disability that might have somehow contributed to his calculated and vicious murder of the victim and her two children. Mr. Hooper's counsel subjected the state's case to close scrutiny and the choices made by counsel were, under the circumstances, about as good as could be expected. Essentially, this court determines that counsel's attempt to get before the sentencing jury evidence of Mr. Hooper's mental limitations, without first determining the likelihood of success after additional investigation, constitutes deficient performance. Dr. Murphy's summary indicating that he “believed Dr. Adams found evidence of ‘mild but probable brain damage,’ ” was placed before the jury by counsel. Hooper v. State, 947 P.2d 1090, 1114 (Okla.Ct.Crim.App.1997). Had counsel not placed the substance of the report in evidence (because there was scant evidence to support it), would counsel have been deemed ineffective?
Obviously, Dr. Murphy is a defense-oriented professional expert witness. Was he caught in his own embellishment of Dr. Adams' report? Dr. Adams testified on rebuttal that “he found no evidence of brain damage.” Hooper, 947 P.2d at 1114. Although the OCCA held that counsel's actions in calling Dr. Murphy and having the two medical reports admitted was “disastrous” and constituted Strickland prejudice, Hooper, 947 P.2d at 1115, it was only so because it was apparent that Mr. Hooper had no mental impairments in any way responsible for the offense. Had counsel's efforts succeeded, or had the state been unable to bring Dr. Adams forward in rebuttal, counsel would have been able to present the jury another argument in support of mitigation.
The decision of the OCCA simply is not an unreasonable application of Strickland because it correctly considered the entire sentencing proceeding and concluded that counsel did present a mitigation case, just not the one Mr. Hooper, with 20-20 hindsight, would have selected. Hooper, 947 P.2d at 1115. The OCCA's conclusion that any deficiencies of counsel on this score simply did not constitute a complete breakdown of the adversarial testing process (and therefore did not constitute deficient performance) is correct. This is not a case where the option contended for (not calling Dr. Murphy and not introducing the medical reports after further investigation) “so clearly outweighs” the course taken by defense counsel as to render the OCCA's decision objectively unreasonable. Bell, 122 S.Ct. at 1854 (on collateral review, a failure to put on mitigating evidence in sentencing phase and waiver of closing was not deficient performance).
Counsel's effort to raise “mental impairment” was but one of several mitigation attempts, all of which were ultimately unsuccessful. The trial of a case is not a “do it by the numbers” exercise, rather it is uncertain and one uses what one has. Sometimes it works, and sometimes not, but no experienced trial counsel could say that no competent counsel would have proceeded the way Mr. Hooper's counsel did. See id.; Bullock v. Carver, 297 F.3d 1036, 1048-49 (10th Cir.2002) (applying objective reasonableness standard in Strickland deficient performance analysis and suggesting that to establish deficient performance, habeas petitioner must successfully urge that no competent counsel would have proceeded in the manner that his counsel did). The “ ‘no competent counsel’ standard” identified by the court is mere description-no one disputes that the ultimate inquiry in the Strickland deficient performance analysis performed by the OCCA is whether counsel's representation was objectively reasonable. In concluding that “counsel's representation did not fall below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, 104 S.Ct. 2052, the OCCA's decision is not objectively unreasonable precisely because the OCCA considered the representation as a whole and determined that counsel's representation was within that “wide range” of competence satisfying the Sixth Amendment, i.e. “mak[ing] the adversarial testing process work in the particular case.” See Strickland, 466 U.S. at 690, 104 S.Ct. 2052; Hooper, 947 P.2d at 1115. As recently articulated by the Supreme Court in a similar case reversing a habeas grant by the Ninth Circuit, a state court's determination must be “given the benefit of the doubt” and “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly.” Visciotti, 123 S.Ct. at 360. Here, the OCCA carefully applied Strickland from start to finish, finding prejudice, but not deficient performance-what we have is a mere disagreement. Accordingly, I would reverse the district court's grant of habeas relief.
Hooper v. Workman, 446 Fed.Appx. 88 (10th Cir. 2011). (Habeas)
Background: After convictions and death sentences for capital murder were affirmed on direct appeal, 947 P.2d 1090, and application for postconviction relief was denied, 957 P.2d 120, state prisoner filed application for writ of habeas corpus. The application was granted, and Government appealed. The Court of Appeals, 314 F.3d 1162, affirmed. Prisoner was resentenced to death. Prisoner filed application for writ of habeas corpus based on assertion that waiver at sentencing of right to appeal or seek postconviction review was not valid. The United States District Court for the Western District of Oklahoma, Vicki Miles–LaGrange, Chief Judge, 2011 WL 1935815, denied application. Prisoner requested certificate of appealability (COA).
Holding: The Court of Appeals held that Oklahoma court's determination that defendant was competent to waive appeal and postconviction review of death sentence was not contrary to, or unreasonable application of, clearly established federal law.COA denied; appeal dismissed.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michael Edward Hooper seeks a certificate of appealability (COA) to challenge the district court's decision denying his 28 U.S.C. § 2254 habeas petition. Because Hooper has not shown that the district court's decision is debatable, or that there are issues present that deserve further treatment, we deny the request for a COA.
Background
In 1993, Hooper shot his ex-girlfriend and her son and daughter each twice in the head. He then buried them atop one another, doused them with gasoline, and covered their grave with debris. Hooper was tried and convicted on three counts of first-degree murder. At sentencing, Hooper was sentenced to death on the basis of multiple aggravating circumstances. In federal habeas proceedings, the district court granted him relief from his death sentences, finding that defense counsel provided ineffective assistance in presenting mitigating evidence. This court affirmed. See Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir.2002).
On remand, Hooper sought to waive his rights to be sentenced by a jury and to present mitigating evidence. He was examined by a court-appointed expert, Dr. R. Shawn Roberson, and found to be competent. Defense counsel informed the court that Hooper had also been examined by a defense expert, Dr. Jeannie Russell, who had found no evidence that Hooper was incompetent. Indeed, Dr. Russell opined that he “appeared capable of appreciating the serious nature of the offenses and possible outcomes at sentencing,” and “had the capacity to rationally assist his attorney in his defense if he chose to do so.” Report of Dr. Russell at 3. She did note, though, that Hooper had “described a long history of depression.” Id. at 4. The sentencing court found Hooper competent.
Throughout subsequent hearings, defense counsel reiterated that although Hooper was depressed, he was competent and had forbidden his defense team from proceeding with a mitigation case. Each time, the sentencing judge questioned Hooper and found him competent. Finally, the judge entered death sentences on all three counts, finding that (1) all counts shared the aggravating circumstances of risk-of-death-to-more-than-one-person and a-continuing-threat-to-society; and (2) that the counts involving both murdered children shared the additional aggravator of murder-to-avoid-arrest-or-prosecution.
Hooper was formally sentenced to death in October 2004. After the death warrants were read, Hooper provided the court with a declaration, stating that he had directed defense counsel to forgo any appeals or post-conviction challenges. The court examined Hooper and found him competent to waive his rights. In 2005, Hooper began taking anti-depressant medication, and changed his mind about being executed. Dr. Russell examined him again, and concluded for the first time that Hooper's depression in 2004 “prevent[ed] him from making a rational choice among his options.” Id. at 5 (italics omitted). She stated that her new opinion arose from the fact that “[i]n 2004, Hooper based his decision [to accept execution] on his mood and thinking without medication.” Id. at 6.
Hooper appealed his sentences to the Oklahoma Court of Criminal Appeals (OCCA), arguing that Oklahoma's prescribed questions for determining competency were insufficient, and that the competency inquiry employed at sentencing failed to account for his depression. The OCCA affirmed, and the federal district court, during habeas proceedings, concluded that the OCCA's determinations were reasonable. This court initially denied a COA at a case management conference conducted by one judge. Hooper now seeks a panel's consideration of his COA request.
Discussion
Standards of Review
An appeal may not be taken from the denial of federal habeas relief unless the petitioner first obtains a COA. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is met if “reasonable jurists could debate whether (or, for that matter, agree that) the [habeas] petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted).
Where the state appellate court addressed the merits of a petitioner's claims, as the OCCA did here, the Anti–Terrorism and Effective Death Penalty Act's (AEDPA's) “deferential treatment of state court decisions must be incorporated into our consideration of [the] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.2004). Under AEDPA, we may grant a habeas petition on a claim that was adjudicated on the merits in state court only if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2).
Competency
In Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (per curiam), the Supreme Court held that a prisoner's competency to waive his execution challenges must be judged by “whether he has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Hooper argues that the OCCA violated Rees by not properly assessing the impact his depression had on his ability to rationally decide whether to accept the death penalty.
The OCCA noted that in 2004 neither [defense] counsel nor the defense expert [Dr. Russell] believed that [Hooper's] condition affected [his] ability to make a valid waiver. [Dr. Roberson] specifically found that Hooper, while depressed, did not present with symptoms of a mental illness, and offered a rational basis for his decisions. Further, although [Dr. Roberson's] evaluation answers the standard competency questions, the evaluation itself explores Hooper's competency specifically as it relates to the death penalty and capital punishment issues. Hooper v. State, 142 P.3d 463, 470 (Okla.Crim.App.2006). Further, the OCCA discounted Dr. Russell's new opinion in 2005 that Hooper's decision was irrational because he was not medicated. It explained that Dr. Russell's new opinion “tells the Court what Hooper might do now, faced with the same options he had at the time of his sentencing hearing,” but “it does not show that Hooper was unable to make a valid waiver at that time.” Id.
The federal district court found the OCCA's competency determinations reasonable. We conclude that the district court's decision is not debatable. A defendant's mental disorder does not necessarily render him incompetent. See U.S. v. Mackovich, 209 F.3d 1227, 1233 (10th Cir.2000); Lonchar v. Zant, 978 F.2d 637, 642 (11th Cir.1992); Smith ex rel. Mo. Pub. Defender v. Armontrout, 812 F.2d 1050, 1057 (8th Cir.1987). In 2004, both Dr. Roberson and Dr. Russell were aware of Hooper's depression, but nevertheless found him competent. Even Hooper's counsel believed that Hooper was competent despite his depression. “Trial counsel's opinion should receive significant weight since counsel, perhaps more than any other party or the court, is in a position to evaluate a defendant's ability to understand the proceedings.” United States v. Turner, 644 F.3d 713, 723 (8th Cir.2011) (quotations and brackets omitted); see, e.g., Smallwood v. Gibson, 191 F.3d 1257, 1279 (10th Cir.1999) (giving weight to defense counsel's view of his client's competency). Moreover, the sentencing court repeatedly addressed the issue of competency with counsel and Hooper, and found him competent each time.
Finally, Dr. Russell changed her competency opinion solely because Hooper changed his mind while taking anti-depressant medication. But the fact that Hooper made a different decision when medicated does not by itself cast doubt on the initial competency determination—especially given that both experts were aware of his unmedicated depression. Nevertheless, Hooper proposes that it is per se “irrational” to accept the death penalty, and therefore, he was incompetent in an unmedicated state. Mot. for Panel Consideration of COA at 14–15. We reject that proposition.
Conclusion
We conclude that the federal district court's resolution of Hooper's habeas petition is not debatable, and that there are no issues that merit further treatment. Accordingly, we DENY the application for a COA, and we DISMISS this appeal.