HAWKINS v. STATE

HAWKINS v. STATE
2002 OK CR 12
46 P.3d 139
73 OBJ 918
Case Number: F-2000-769
Decided: 03/12/2002
Mandate Issued: 04/03/2002
CHRISTOPHER ALAN HAWKINS, Appellant -vs- STATE OF OKLAHOMA, Appellee

[46 P.3d 141]

O P I N I O N

LUMPKIN, PRESIDING JUDGE:

¶1 Appellant, Christopher Alan Hawkins, was tried by jury in the District Court of Oklahoma County, Case No. CF-98-736, and convicted of First Degree Murder (Count I), in violation of

¶2 On January 29, 1998, Appellant, Michael Draper, and Zane Johnson went to the home of Wayne Dollar. Appellant fired four shots into Dollar's head while Dollar lay sleeping on a living room couch. He admitted shooting Dollar during subsequent interviews and when he took the stand at trial.

¶3 Appellant claimed Draper asked him to shoot Dollar and that Draper would then forgive a debt Appellant owed to him. Appellant claimed he had no choice in the matter: "[I]f I didn't do this either Draper was going to send Dollar after me again or he (Draper) was going to get me."

¶4 There was testimony Dollar had fired multiple shots into Appellant's apartment three days before the shooting, using the same gun Appellant used to kill Dollar. A police investigator theorized that Dollar had shot up Appellant's apartment at Draper's request, due to the money Appellant owed Draper.

¶5 In his first proposition, Appellant claims the trial court denied him a fair trial, in violation of his federal and state constitutional rights, by admitting videotaped interviews he gave to the police following the incident and photographs of the victim. Prior to the admission of the interviews and photographs, Appellant's counsel lodged timely objections.

¶6 Regarding the videotaped interviews, Appellant claims he unambiguously invoked [46 P.3d 142] his right to counsel during his first interview, but then alleges the police reinitiated contact with him, ultimately conducting an interrogation that led to his confession the next day. Appellant claims the interviews should have been suppressed because there was not a sufficient showing Appellant had waived his right to counsel or had reinitiated contact with the police investigators.

¶7 The State points out that the trial court held an in camera hearing regarding Appellant's waiver and found it was Appellant who reinitiated contact. The State claims this ruling was proper, because the record contains sufficient facts to support the trial court's ruling by a preponderance of the evidence.

¶8 Appellant's first interview was held on February 4, 1998 and was terminated when Appellant requested an attorney. Questioning ceased, but the police detectives gave Appellant their number in case he changed his mind. They also informed Appellant he was being booked for first degree murder and warned him that "[o]ther people have been talking. The deals are getting made." The detectives took Appellant's picture, asked him about his hair color, and then left.

¶9 Appellant was then taken to jail. According to Detective Matthews, while he was being "booked," Appellant asked if any of the other people had been arrested. Matthews told him yes. Appellant then asked what they had said and whether they were blaming him. Matthews told him he could not discuss this because Appellant had invoked his right to counsel.

¶10 According to Matthews, Appellant then said, "Well, I will speak to you now."

¶11 The second interview occurred the next day, February 5, 1998. Detective Matthews testified at the preliminary hearing that, before the interview began, he made contact with Appellant and confirmed that he still wanted to speak to the detectives. Appellant said, "Yes I do." (Tr. II at 137; P.H.Tr. at 77-78.) At trial, Matthews could not specifically recall this exchange, but he testified that he was sure his preliminary hearing statement was true.

¶12 The second interview began with Detective Maddox confirming his understanding that Appellant, at booking, had evidently changed his mind about wanting to speak to investigators without an attorney. In order to confirm whether or not that was true, Maddox informed Appellant that he would start over and read him his rights again. Appellant first nodded, then verbally agreed to this procedure. The Miranda warning was given, and Appellant waived his right to an attorney. Thereafter, he made several damning admissions.

¶13 Appellant argues the trial court should have focused, not only on whether the statement was given voluntarily, but also upon whether Appellant knowingly and intelligently relinquished his right to counsel. Appellant thus argues his lack of access to counsel, young age, drug dependency, learning disability, parents' divorce, home environment, and ninth grade education must all be taken into consideration. Appellant did not, however, ask the trial court to consider these factors when rendering its decision.

¶14 Appellant points to slight inconsistencies in Detective Matthews's story regarding Appellant's alleged re-initiation of contact and to the "incredulous" claim that Appellant was allowed to "sleep on it" as supporting a lack of a knowing and intelligent waiver of [46 P.3d 143] the right to remain silent and right to counsel.

¶15 When an accused in custody requests the assistance of counsel the Fifth Amendment requires that all "interrogation must cease until an attorney is present." Miranda v. Arizona,

¶16 With this in mind, we find the facts of this case are analogous to those in Oregon v. Bradshaw,

¶17 In its plurality opinion, the Supreme Court found these facts did not constitute a violation of the Edwards rule :

There can be no doubt in this case that in asking, "Well, what is going to happen to me now?", respondent "initiated" further conversation in the ordinary dictionary sense of that word. While we doubt that it would be desirable to build a superstructure of legal refinements around the word "initiate" in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to "initiate" any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally "initiate" a conversation in the sense in which that word was used in Edwards.

Although ambiguous, the respondent's question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation.

Oregon v. Bradshaw,

¶18 This case is sufficiently similar in terms of facts. While there was a dispute over whether Appellant actually spoke to Detective Matthews during booking, the trial judge, who was the trier of fact with respect to this question, heard testimony from Matthews that Appellant asked about who else had been arrested and whether or not he had been blamed. Matthews testified Appellant said he desired to speak to Matthews "now". This testimony was supported by at least one document and testimony from Maddox. While Appellant testified no such conversation ever occurred, the trial judge had the benefit of hearing the evidence and assessing the weight and credibility of the testimony. We find the trial judge's ruling that Appellant reinitiated communication to be factually and legally supported by the record. No Edwards violation occurred.

¶19 This, however, does not end our inquiry. We must now determine "whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." Oregon v. Bradshaw,

¶20 Here, the trial court, based upon the "totality of the circumstances and looking at all of the testimony that I have had here today," found that Appellant's decision to speak to the detectives, thereby waiving his right to silence and right to counsel, was voluntary, without coercion, without being under the influence of drugs or alcohol, and given at a time when Appellant was coherent.

¶21 Considering the totality of the circumstances, including Appellant's background, experience, conduct, and his own testimony (Tr. III at 87), we find the trial judge's ruling is sufficiently supported, by a preponderence of the evidence, and that the Appellant's waiver of the right to remain silent and the right to counsel was entered knowingly and intelligently.

¶22 Regarding the admission of the photographs of the deceased, we find the probative value thereof was not substantially outweighed by the danger of unfair prejudice.

¶23 In proposition two, Appellant claims the trial court committed reversible error by denying his requested jury instructions on duress and the lesser offense of first degree manslaughter, in violation of the federal and state constitutions.

¶24 Regarding duress, Appellant argues he was entitled to an instruction on this complete defense where there is any possible support for it in the evidence, even if discredited.

¶25 But there are other important facts from the record to consider. Appellant admitted there was talk about killing Dollar before they even went to his apartment that night. During his confessions to police, Appellant did not claim he acted out of fear. Furthermore, there was never any claim, during the confessions or at trial, that an actual or even an implied threat was made against Appellant. Indeed, it appears highly likely Appellant was acting out of monetary pressure, rather than a sense of imminent danger. (He testified that, while most people work to pay off their bills, "I had never ever really have (sic) been able to keep a job.") Draper, the person Appellant allegedly feared, was in a car a considerable distance away when Appellant shot the sleeping victim four times in the head. Draper had given Appellant his gun, leaving Appellant armed and Draper disarmed. Additionally, although Appellant had seen Draper "blow up" at Draper's wife, he had never seen Draper threaten anyone who owed him money-he had only "heard stories." Furthermore, Appellant never testified he knew Draper had instructed Dollar to shoot up his apartment-he only knew Draper said that Dollar, whom he had never met, collected for him on occasion. In fact, according to his testimony, he never really thought about any of these things; he just took the gun and shot in a spur-of-the-moment manner.

¶26 There has been some debate in this Court over the years about whether or not the affirmative defense of duress is available to one charged with first degree malice murder.

¶27 We need not revisit this issue today, however, because the record before us shows the trial judge did not abuse his discretion in denying a duress instruction under the facts of this case, even if one was hypothetically available.

¶28 According to

¶29 Moreover, Appellant cannot be said to have been under the "involuntary subjection" of a superior power.

¶30 Finally, Spunagle recognizes that a person who fails to avail himself of an opportunity to escape from a situation of duress is not entitled to claim the defense. Appellant had that opportunity when he was left alone with a weapon.

¶31 Next, Appellant claims he should have been given his requested instruction for first degree "heat of passion" manslaughter as a lesser-included or lesser-related offense.

¶32 This claim fails for several reasons. First, first degree manslaughter, by definition, requires the killing to have been committed "in the heat of passion" and "without a design to effect death."

¶33 Secondly, heat of passion requires adequate provocation on the part of the deceased toward the defendant, not some implied provocation on the part of a third person sitting in a car a considerable distance away. Williams v. State,

¶34 Thus, there was more than a reasonable opportunity for any passion on the part of Appellant to cool. In Oklahoma, a homicide must occur while the passion still exists and before a reasonable opportunity for the passion to cool. Williams,

¶35 We find the trial court did not abuse its discretion in refusing to give a first degree heat of passion manslaughter instruction, and, consequently, Appellant suffered no deprivation of his due process rights.

¶36 In proposition three, Appellant claims the evidence was insufficient to establish the corpus delicti of a conspiracy to commit first degree murder, apart from his own confessions. In other words, he claims the State failed to present sufficient independent evidence that an agreement to kill Dollar existed and that Appellant was a party to that agreement at the time it was made.

¶37 In Fontenot v. State,

¶38 We find the following substantial independent and corroborating evidence sufficient to establish the trustworthiness of Appellant's confessions: the victim was found on the couch in the living room; he appeared to have been shot while sleeping; his body was covered by a blanket; he had been shot four times in the head; a .38 caliber revolver was used; the shooter appeared to have stood above the victim; the door to the victim's residence was found unlocked, without [46 P.3d 147] any sign of forced entry; the screen door to the victim's residence was found propped open; co-defendant Zane Johnson's fingerprints were found on an unscrewed, but working, porch light bulb at the residence; a dog was found locked in the utility room; a television was on when the victim was found; police interviews with several possible suspects led to Appellant as a possible suspect; bullets taken from the victim's head were an exact match to bullets found at the Casa Cortez apartments, where Appellant lived; Appellant's apartment had been shot up three days before the victim was killed; police investigations indicated Michael Draper came up with the idea to kill the victim; and both Appellant and the victim owed money to Draper relating to drugs. Furthermore, Appellant testified at trial that his confessions were "pretty much" accurate.

¶39 We find, after viewing the evidence in the light most favorable to the State and accepting all reasonable inferences and credibility choices that tend to support the jury's verdict, any rational trier of fact could have found the essential elements of the crime of conspiracy beyond a reasonable doubt. Spuehler v. State,

¶40 In proposition four, Appellant claims he was denied effective assistance of counsel under the federal and state constitutions, by the following acts of counsel: coming "perilously close" to conceding guilt to first degree murder during closing argument; unequivocally conceding guilt to conspiracy during closing arguments; the inability to effectively advocate duress due to the trial judge's denial of an instruction on that defense; and failing to object to corpus delicti for conspiracy and/or the use of Appellant's statements without substantial independent evidence of an agreement to kill Dollar and Appellant being a party to that agreement at the time that it was made.

¶41 We find, however, Appellant's counsel was not ineffective. First, given the fact that Appellant confessed to the murder before and during trial, it can hardly be said counsel's arguments on this point, some of which are taken out of context by Appellant, could have done anything but come "perilously close" to admitting guilt. Second, we find a reasonable trial strategy in conceding guilt to the lesser conspiracy charge during closing arguments, considering Appellant's confession and trial testimony.

¶42 In proposition five, Appellant claims the trial court denied him his right to a fair trial and due process, in violation of the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article II, §§ 7, 9, 19, and 20 of Oklahoma's Constitution, by denying his motion for new trial. His motion was based upon the trial judge's response to the jury's questions, "What is life in years?" and "What is life without parole in years?" The motion was also based upon the jury's consideration of alleged "extraneous matters [46 P.3d 148] and influences" in the form of the jurors' opinions that punishment of life without parole meant a defendant could be released after serving a certain terms of years.

¶43 At trial, when the jury's note was received, the trial judge informed them in writing, "This is not for your consideration."12 There is no indication in the record that defense counsel objected to this response. Thus, we review for plain error. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 693.

¶44 Appellant points to unsworn telephone interviews with ten jurors and an affidavit from a Public Defender's investigator detailing the results of his investigation, all of which were filed with the motion for new trial, as support for his claim that jurors were confused about what life and life without the possibility of parole meant.13

¶45 However, according to our evidence code, when there is an inquiry into the validity of a verdict, a juror is incompetent to testify about "any matter or statement occurring during the course of the jury's deliberations or as to the effect of anything upon his or another juror's mind or emotions as influencing him to assent to or dissent from the verdict ... or concerning his mental processes during deliberations." 12 O.S.1991, § 2606 (B). A juror may testify about "extraneous prejudicial information," i.e. information injected into the deliberation process from the outside, but we do not believe this includes information coming from the juror's own subjective experiences and background, as here. Moreover, in difficult line-drawing cases, the line should be drawn in favor of juror privacy, and the testimony should be disallowed. Weatherly v. State, 1987 OK CR 28, 733 P.2d 1331, 1335.

¶46 This Court has, in numerous instances, stated that the meaning of life without parole is self-explanatory and that an instruction on its meaning is not required. Powell v. State, 2000 OK CR 5, 995 P.2d 510, 536, cert. denied, 531 U.S. 935, 121 S. Ct. 321, 148 L. Ed. 2d 258 (2000); Howell v. State, 1998 OK CR 53, 967 P.2d 1221, 1224-25, cert. denied, 528 U.S. 834, 120 S.Ct 93, 145 L. Ed. 2d 79 (1999); McCracken v. State, 1994 OK CR 68, 887 P.2d 323, 334, cert. denied, 516 U.S. 859, 116 S. Ct. 166, 133 L. Ed. 2d 108 (1995). We need not revisit that issue here.

¶47 Appellant points out, however, that the "clarifying instruction" set forth in Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 320 was not used, although he acknowledges that such an instruction is not required. He then states the trial court "could have, and should have," instructed as follows:

A life sentence means imprisonment for the balance of the defendant's natural life with the possibility of being considered for parole by statute after serving fifteen years imprisonment. A life without parole sentence means imprisonment for the balance of the defendant's natural life without the possibility of ever being considered for parole.

Of course Appellant did not request this instruction. Although we see no immediate [46 P.3d 149] problem with this instruction, it cannot be said Appellant was denied a constitutional right by the trial court's failure to issue this instruction sua sponte, especially in light of our previous cases on this issue.

¶48 With respect to proposition six, we find Appellant's sentence of life imprisonment without parole, although severe, was not so excessive as to shock the conscience of the Court. Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149; Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 291. While Appellant may not have any prior felony convictions, the record indicates he previously received a deferred sentence relating to burglary and concealing stolen property charges, and said sentence had not been resolved at the time the instant crime was committed. Appellant also has a history in the juvenile court system. His actions in firing four bullets into the head of a sleeping victim indicate he is willing to commit the most serious of crimes over drugs and his own indebtedness.

¶49 With respect to proposition seven, we find no cumulative error. With respect to proposition eight, we find Appellant's conviction for conspiracy and murder do not violate state and federal prohibitions against double jeopardy. This Court has consistently held that "a conspiracy to commit an unlawful act constitutes an independent crime, complete in itself and distinct from the unlawful act contemplated." Littlejohn v. State, 1998 OK CR 75, 989 P.2d 901, 909-10; Huckaby v. State, 1990 OK CR 84, 804 P.2d 447, 450.

DECISION

¶50 The judgments and sentences are hereby AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE JERRY D. BASS, DISTRICT JUDGE

APPEARANCES AT TRIAL

JANET COX
DAVID McKENZIE
ASSISTANT PUBLIC DEFENDERS
320 ROBERT S. KERR
SUITE 600
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

MARC PATE
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR
SUITE 505
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

WENDELL B. SUTTON
ASSISTANT PUBLIC DEFENDER
OKLAHOMA COUNTY PUBLIC
DEFENDER'S OFFICE
611 COUNTY OFFICE BUILDING
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
STEVEN E. LOHR
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, P.J.

RA

FOOTNOTES

CHAPEL, J., CONCURRING IN PART AND DISSENTING IN PART:

¶1 I concur in affirming Hawkins's murder conviction. However, I dissent to affirming (a) his conviction for conspiracy to commit murder and (b) the sentence of life without parole. First, I continue to believe that convictions for murder and conspiracy to commit murder violate the prohibition against double jeopardy.1 I would reverse Hawkins's conspiracy conviction. Further, I have consistently stated that the jury should be informed of the meaning of life without parole.2 In Malicoat, I said, "Our error in failing to require instruction as to the meaning of life without parole is of constitutional magnitude and has, in my judgment, resulted in death sentences for many who would otherwise have received the life without parole sentence."3 Although this is not a capital case, the principle applies. When a jury asks a question about the term of incarceration meant by life with parole, as these jurors did, it means the jurors are confused. Juror confusion may well result in a longer sentence. Where the trial court can clear up [46 P.3d 150] juror confusion, it should.4 I would remand for resentencing with appropriate instructions.5

FOOTNOTES

Strubhar, Judge: Concur in Results

¶1 I concur in results only for the reason of stare decisis. I continue to believe that a trial court should provide a meaningful answer to questions from the jury when they ask about the meaning of life without parole.