Huckaby v. State, F-88-838

Citation1990 OK CR 84,804 P.2d 447
Decision Date28 December 1990
Docket NumberNo. F-88-838,F-88-838
PartiesJames Howard HUCKABY, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

An Appeal from the District Court of Tulsa County; Joe Jennings, District Judge.

JAMES HOWARD HUCKABY, appellant, was convicted of Murder in the First Degree, Shooting with Intent to Kill, and Conspiracy, in the District Court of Tulsa County, Case No. CRF-87-1285, sentenced to life imprisonment and a fine of five thousand dollars ($5,000.00) on each of the first two counts and sentenced to ten (10) years imprisonment and a fine of five hundred dollars ($500.00) on the third count, said sentences to be served consecutively. AFFIRMED.

Fred P. Gilbert, Brewster, Shallcross & Rizley, Tulsa, for appellant.

Robert H. Henry, Atty. Gen., D. Diane Hammons, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

James Howard Huckaby, appellant, was convicted by a jury in Tulsa County District Court of First Degree Murder (21 O.S.Supp.1982, § 701.7(A)), Shooting with Intent to Kill (21 O.S.1981, § 652), and Conspiracy (21 O.S.1981, § 421), Case No. CRF-87-1285. He received sentences of life imprisonment and a fine of five thousand dollars ($5000.00) on each of the first two convictions and a sentence of ten (10) years imprisonment and a fine of five hundred dollars ($500.00) on the third, each to run consecutively.

At the trial of appellant, William "Butch" Morrow testified that he had been hired to kill Patsy Hendryx and that he did in fact shoot Hendryx and her sister Joyce Lambert. Lambert died from her wounds but Hendryx did not. The murder contract, Morrow testified, had been arranged by appellant and appellant provided the guns and transportation to complete the crimes. He also gave Morrow cash in the amount of $1,500.00 as payment for his services.

Morrow testified that on Saturday, March 28, 1987, he was helping a friend named Ron Lechner work on his motorcycle at Smith Motors in Tulsa, Oklahoma. Appellant was also at Smith Motors transacting business when he casually inquired if anyone knew a hit man. Morrow later approached appellant in private and said he might know someone who would kill for hire and appellant wrote his telephone number on a piece of paper and gave it to Morrow. Morrow later contacted appellant and after meeting one time, made arrangements to meet again so appellant could take him to execute the contract. The price agreed upon was fifteen hundred dollars ($1,500.00). Huckaby explained that the ex-husband of Patsy Hendryx was to pay two thousand dollars ($2,000.00) and that appellant would keep five hundred dollars ($500.00) for himself.

At approximately 5:00 p.m. on Monday, March 30, 1987, appellant picked Morrow up at a convenience store in a black Trans Am and took him to Patsy Hendryx' home. Morrow cut the telephone line and then lay in wait for her to arrive home from work. Meanwhile, appellant parked nearby and prepared to pick Morrow up following the shootings. Appellant had informed Morrow on the trip to Hendryx' home that there might be another person with Hendryx and that both should be taken care of in that instance.

A short while later Hendryx arrived home with her sister. Each were shot once at a distance with a .38 caliber handgun. Morrow testified that he then shot each at a close range with a .12 gauge shotgun. He stated that as soon as he fired the last shot, he looked up and saw appellant drive into the driveway. Morrow scooped up Hendryx' purse and left.

Appellant drove Morrow home that evening and returned again later to give him fifteen (15) one hundred dollar ($100.00) bills. Morrow left the next day for New Jersey where he was soon arrested and returned to Oklahoma.

When appellant had inquired at Smith Motors on March 28th about a "hit man", a number of people heard him and saw him later give Morrow the piece of paper which contained his telephone number. A convenience store attendant saw someone with a dark sports car pick Morrow up the evening of March 30th. Morrow told a number of people during the course of the conspiracy that he had to go meet "Huck" or that "Huck" was paying him to kill a couple of people. Many of these various witnesses testified at trial.

I.

Appellant's first assignment of error is that it was a violation of the double jeopardy guarantees of both the Oklahoma and the federal constitutions for the State to have prosecuted and convicted him of both murder and conspiracy to commit murder. The gist of this assignment is that appellant's actions proven at trial amounted to only conspiracy to commit murder, and to have convicted him of the murder as well results in conviction twice for the same acts. To make these arguments appellant rests on the assumption that his actions went no further than to arrange the killing. He has also defined the murder for which he was convicted as "murder for hire."

Had the law and the facts been as appellant contends, his argument would be well taken. However, the evidence adduced at trial, if believed, not only proved appellant guilty of conspiracy to commit murder but also of the substantive offense of murder. The evidence was that he solicited the murder, that he and Morrow conspired to commit the murder at a separate meeting, he transported Morrow to and from the murder site, he provided two loaded weapons for the killing, and he made payment to Morrow of $1,500.00. At common law, he would not have been an accessory before the fact as he urges. Appellant did not simply procure the crimes; he was an actual participant even though he did not pull the triggers. Oklahoma statutes at any rate deal with an accessory before the fact as a principal.

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.

21 O.S.1981, § 172. The liabilities between accessories before the fact and principals are no longer distinguishable. 22 O.S.1981, § 432.

Appellant's assertion that he was convicted of "murder for hire" is meritless. He has captured a provision from the death penalty statutes to create the new crime bearing this name. The provision appellant seeks to incorporate as an element of first degree murder is in fact an aggravating circumstance a jury may consider during sentencing in assessing the death penalty. Section 701.12(3), Title 21 of the Oklahoma Statutes provides that if a defendant is convicted of first degree murder, the prosecutor may request the death penalty and prove any of eight circumstances. The death penalty was not requested in appellant's case. All forms of first degree murder are defined in 21 O.S.Supp.1989, § 701.7, and none include remuneration as an element. From the foregoing, we conclude that neither the facts nor the law supports appellant's arguments.

This Court has previously held that conspiracy to commit murder and the substantive crime of murder are separate and distinct crimes, complete apart from one another. Harjo v. State, 797 P.2d 338 (Okl.Cr.1990). Citing Stohler v. State ex rel. Lamm, 696 P.2d 1038 (Okl.Cr.1985), the Harjo opinion explains that under the "same evidence" test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), conviction of both conspiracy to commit murder and murder does not violate double jeopardy protection because each contains at least one element the other does not. 1 Harjo, 797 P.2d at 343. These rules apply to the case at bar.

Appellant contends that application of the "same evidence" test does prove a double jeopardy violation. He argues that the evidence proving he hired the killer is the same evidence that proved he conspired and this same evidence is the basis for his liability for the murder. In other words, the evidence that he hired the killer is the basis for his liability in both crimes. As noted earlier, however, he was not liable for the murder only as one who hired the killer. He was liable as a participant. He could have been convicted of the murder even if the conspiracy portion of the evidence had not been admitted. Conversely, he could have been convicted of conspiracy even had the murder not been proven. This assignment is without merit.

II.

Appellant next assigns as error the admission of testimony from coconspirator Morrow without the trial court first conducting a hearing to determine whether there was independent evidence connecting appellant to the conspiracy. In Laske v. State, 694 P.2d 536 (Okl.Cr.1985), this Court held that a coconspirator's statement concerning the conspiracy can only be admitted against the defendant if the trial judge determines first that there is independent evidence connecting the defendant to the conspiracy. See as well our recent opinion in Harjo, 797 P.2d at 343-45 (Okl.Cr.1990). The rule, however, does not extend to the direct in-court testimony of a coconspirator. Johns v. State, 742 P.2d 1142 (Okl.Cr.1987). The testimony of Morrow was not hearsay under 12 O.S.1981, § 2801(3), since it constituted statements made in court and under oath. They were party admissions according to 12 O.S.1981, § 2801(4)(b)(1). Therefore, the hearing prescribed by Laske was not required.

There was testimony introduced at trial from a number of witnesses admitting out-of-court declarations made by Morrow concerning the conspiracy. Appellant claims that a Laske hearing determining whether there was independent evidence of appellant being involved in the conspiracy should have been conducted prior to their admission. However, we find that Morrow's testimony was sufficient independent evidence of a conspiracy and of appellant's participation in it. United States v. Smith, 692 F.2d 693 (10th Cir.1982).

Appellant further cites testimony of several witnesses which he contends was inadmissible hearsay. Most of the statements...

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