662 P.2d 1377 (Okla.Crim.App. 1983), F-80-302, Hatch v. State

Docket NºF-80-302.
Citation662 P.2d 1377
Party NameSteven Keith HATCH a/k/a Steve Lisenbee, Appellant, v. The STATE of Oklahoma, Appellee.
Case DateApril 12, 1983
CourtCourt of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 1377

662 P.2d 1377 (Okla.Crim.App. 1983)

Steven Keith HATCH a/k/a Steve Lisenbee, Appellant,

v.

The STATE of Oklahoma, Appellee.

No. F-80-302.

Court of Criminal Appeals of Oklahoma.

April 12, 1983.

Page 1378

[Copyrighted Material Omitted]

Page 1379

An Appeal from the District Court of Canadian County; Floyd L. Martin, District Judge.

Steven Keith Hatch, a/k/a Steve Lisenbee, appellant, was convicted in Canadian County District Court of two counts of Murder in the First Degree, and two counts of Shooting with Intent to Kill. He was sentenced to forty-five (45) years' imprisonment for each count of shooting with intent to kill; and sentenced to death for each of the murder counts. The judgments on all four charges are AFFIRMED. The sentences for Shooting with Intent to Kill are AFFIRMED. The sentences of death are VACATED and the cause REMANDED to the Canadian County District Court for resentencing.

Mark Lea (Beau) Cantrell, Stephen P. McCloy, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Criminal Appellate Div., Oklahoma City, for appellee.

OPINION

BUSSEY, Presiding Judge:

The appellant, Steven Keith Hatch a/k/a Steve Lisenbee, stands convicted of two counts of Murder in the First Degree, and two counts of Shooting with Intent to Kill. The appellant was tried in Canadian County District Court before the Honorable Floyd Martin, without a jury. The appellant was sentenced to death for each of the murder counts; and forty-five (45) years' imprisonment for each of the charges of shooting with intent to kill. We affirm the appellant's convictions on all charges, and affirm the sentences imposed for shooting with intent to kill. We conclude, however, that the sentences of death must be vacated and remanded for reconsideration by the trial court below. 1

The sordid details of the crimes perpetrated by the appellant and his accomplice, Glen Burton Ake, a/k/a Johnny Vandenover, are set forth in detail in Ake v. State, 663 P.2d 1, 54 OBAJ --- (1983).

  1. PRE-TRIAL

    The appellant alleges numerous errors occurred prior to the commencement of his trial. First, he argues that a change of venue should have been granted. As

    Page 1380

    noted above, however, this case was tried before a judge, the appellant having waived his right to a jury trial. The change of venue question is more properly addressed to situations in which a defendant is to be tried before a jury. 2 Nonetheless, the appellant has failed to preserve the error in his motion for new trial. He has thus waived the issue. Turman v. State, 522 P.2d 247 (Okl.Cr.1974).

    Secondly, the appellant argues that the judge before whom he was tried should have disqualified himself from the case due to bias on the judge's part.

    The appellant failed to follow the proper statutory procedure to disqualify the judge. According to 20 O.S.1981, § 1403,

    Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request said judge so to certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do, within three (3) days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.

    No application was filed in this case. Strict compliance with this section is required before a trial judge will be disqualified. Passmore v. State, 87 Okl.Cr. 391, 198 P.2d 439 (1948).

    Additionally, the appellant failed to object to the judge's alleged bias at trial.

    In this vein, the appellant argues that trial counsel did not render effective assistance of counsel, because he failed to comply with the applicable statutes to disqualify the judge. The argument must fail, because the appellant has not proven that the judge in this case was biased. The mere fact that the judge held himself out to be a minister of the same faith for which one of the victims was a minister does not persuade us that he was biased or prejudiced against the appellant. Likewise, neither do the excerpts from the transcript of the sentencing stage in which the judge gave consideration to the fact that the victims were involved in the ministry, 3 nor the

    Page 1381

    fact that the judge was subsequently seen embracing one of the surviving victims, indicate that the judge was biased against the appellant.

    The case upon which the appellant primarily relies to support his argument, Castleberry v. Jones, 68 Okl.Cr. 414, 99 P.2d 174 (1940), is distinguishable from the present case. In Castleberry, the judge who presided over the defendant's trial was clearly biased against the defendant. The judge and the defendant were "personal political enemies." The judge had been heard to make statements that he could stir up public sentiment and have the defendant "run out of town" in retaliation for the defendant's attempt to defeat the judge in an election. Obviously there is no bias in this case even remotely analogous to that displayed in Castleberry.

    The appellant has failed to establish any prejudice on the part of the trial court. Thus, it would have merited trial counsel nothing to attempt to disqualify the judge. Failure to press meritless claims do not constitute ineffective assistance of counsel. See generally, United States v. Homan, 482 F.Supp. 344 (E.D.Okl.1977). The inadequacy of counsel argument is without foundation.

    The appellant's fifth allegation of error consists of three subparts in which he alleges fundamental error occurred.

    First, he argues that the trial judge did not have the power to decide questions of fact in his trial. This argument is based on the fact that Article VII, Section 20 of the Oklahoma Constitution, which provided trial judges with the power to try facts in felony cases, was repealed in 1967. We have held numerous times since that time that a judge may try a case upon a valid waiver by the defendant. Colbert v. State, 654 P.2d 624, (Okl.Cr.1982) (and cases cited therein).

    Secondly, the appellant alleges that the waiver of his right to trial by jury was not knowingly and intelligently made. This allegation is patently frivolous. On April 9, 1980, the appellant appeared in person, and with counsel before Judge Floyd Martin for the express purpose of waiving his right to a jury trial. Judge Martin painstakingly and carefully examined the appellant personally at length to determine whether the waiver was knowing and intelligent. In addition, the appellant's attorney openly examined the appellant to confirm that the waiver was knowing and voluntary. Judge Martin was satisfied, as are we from a reading of the record, that the appellant completely understood the nature and consequences of his waiver. There was no error. See, Hayes v. State, 541 P.2d 210 (Okl.Cr.1975).

    Thirdly, the appellant alleges he received ineffective assistance of counsel because trial counsel failed to insist the State and Judge join in on the appellant's waiver. The transcript referred to above reveals that both the prosecutor and the judge stated they had no objection to the waiver. The requirement of consent by the State and judge as set forth in Crawford v. Brown, 536 P.2d 988 (Okl.Cr.1975) was met. Accordingly, the claim of ineffective assistance of counsel fails.

  2. THE CONVICTIONS

    The appellant argues in allegation number six that the convictions on the two counts of murder and the two counts of shooting with intent to kill were against the weight of the evidence.

    The evidence adduced at trial revealed that the appellant voluntarily entered the Douglass' home, armed with a shotgun, knowing that his accomplice (Ake) was also armed. They bound and gagged the family. One of the victims was bound in such a manner that strangulation contributed to his death. The appellant held the family at gunpoint as Ake ransacked their home. The surviving witnesses testified the appellant and Ake discussed killing the family. The appellant left the house when Ake told him to go outside, turn the car around, and

    Page 1382

    "listen for the sound." It is hard to imagine what other meaning the appellant could have attributed to "listen for the sound" were it not to denote the sound of gunfire.

    Both the appellant's testimony at trial and Ake's confession indicated that the appellant tried to convince Ake not to kill the family before the appellant went out to the car. Additionally, both maintained that the appellant's weapon was unloaded throughout the ordeal.

    It was the province of the trial court, sitting as trier of fact, to weigh the evidence, determine the facts, resolve conflicts and believe or disbelieve any witness' testimony. We see no reason to interfere with the trial court's judgment.

    However, even if the appellant's assertions are true, we cannot say that he exonerated himself from guilt for acts committed in the desperate situation he and Ake conjointly created. According to 21 O.S.1981, § 172,

    All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.

    Additionally, in Jemison v. State, 633 P.2d 753 (Okl.Cr.1981), we stated:

    The rule of law is well established that when a conspiracy is entered into to do an unlawful act, the conspirators are responsible for all that is said or done pursuant to the conspiracy by their coconspirators until the purpose has been fully accomplished. If two or more persons conspire or combine to commit a felony, each is criminally...

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45 practice notes
  • 492 A.2d 552 (Del. 1985), Whalen v. State
    • United States
    • Delaware Supreme Court of Delaware
    • April 12, 1985
    ...100 Idaho 54, 675 P.2d 33, 41-42 (1983); Leatherwood v. State, Miss.Supr., 435 So.2d 645, 655-656 (1983); Hatch v. State, Okla.Crim.App., 662 P.2d 1377, 1382-1383 (1983); State v. Yates, S.C.Supr., 310 S.E.2d 805, 812-813 (1982); Osborn v. State, Wyo.Supr., 672 P.2d 777, 792-795 (1983). The......
  • 674 P.2d 1134 (Okla.Crim.App. 1984), F-79-337, Dutton v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • January 6, 1984
    ...Chaney v. State, 612 P.2d 269 (Okl.Cr.1980); those reversed or modified, Johnson v. State, 665 P.2d 815 (Okl.Cr.1983); Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983); Jones v. State, 660 P.2d 634 (Okl.Cr.1983); Munn v. State, 658 P.2d 482 (Okl.Cr.1983); Driskell v. State, 659 P.2d 343 (Okl.Cr.......
  • 693 P.2d 617 (Okla.Crim.App. 1984), F-80-470, Stout v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • October 24, 1984
    ...P.2d 269 (Okl.Cr.1980). [7] See White v. State, 674 P.2d 31 (Okl.Cr.1983); Coleman v. State, 670 P.2d 596 (Okl.Cr.1983); Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983); Smith v. State, 659 P.2d 330 (Okl.Cr.1983), rev'd, 464 U.S. 924, 104 S.Ct. 324, 78 L.Ed.2d 297 (1983), on remand, 55 O.B.A.J.......
  • 695 P.2d 538 (Okla.Crim.App. 1985), F-80-553, Brogie v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • January 2, 1985
    ...was not embodied in statute. Moreover, we reviewed and approved the rationale and policy of the felony murder statute in Hatch v. State, 662 P.2d 1377, 1384 (Okl.Cr.1983). That the states have the power to enact felony murder statutes is beyond constitutional challenge. Lockett v. Ohio, sup......
  • Free signup to view additional results
45 cases
  • 492 A.2d 552 (Del. 1985), Whalen v. State
    • United States
    • Delaware Supreme Court of Delaware
    • April 12, 1985
    ...100 Idaho 54, 675 P.2d 33, 41-42 (1983); Leatherwood v. State, Miss.Supr., 435 So.2d 645, 655-656 (1983); Hatch v. State, Okla.Crim.App., 662 P.2d 1377, 1382-1383 (1983); State v. Yates, S.C.Supr., 310 S.E.2d 805, 812-813 (1982); Osborn v. State, Wyo.Supr., 672 P.2d 777, 792-795 (1983). The......
  • 674 P.2d 1134 (Okla.Crim.App. 1984), F-79-337, Dutton v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • January 6, 1984
    ...Chaney v. State, 612 P.2d 269 (Okl.Cr.1980); those reversed or modified, Johnson v. State, 665 P.2d 815 (Okl.Cr.1983); Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983); Jones v. State, 660 P.2d 634 (Okl.Cr.1983); Munn v. State, 658 P.2d 482 (Okl.Cr.1983); Driskell v. State, 659 P.2d 343 (Okl.Cr.......
  • 693 P.2d 617 (Okla.Crim.App. 1984), F-80-470, Stout v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • October 24, 1984
    ...P.2d 269 (Okl.Cr.1980). [7] See White v. State, 674 P.2d 31 (Okl.Cr.1983); Coleman v. State, 670 P.2d 596 (Okl.Cr.1983); Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983); Smith v. State, 659 P.2d 330 (Okl.Cr.1983), rev'd, 464 U.S. 924, 104 S.Ct. 324, 78 L.Ed.2d 297 (1983), on remand, 55 O.B.A.J.......
  • 695 P.2d 538 (Okla.Crim.App. 1985), F-80-553, Brogie v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • January 2, 1985
    ...was not embodied in statute. Moreover, we reviewed and approved the rationale and policy of the felony murder statute in Hatch v. State, 662 P.2d 1377, 1384 (Okl.Cr.1983). That the states have the power to enact felony murder statutes is beyond constitutional challenge. Lockett v. Ohio, sup......
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