Cannon v. State

• Decision Date: 03 March 1992
• Docket Number: No. F-86-266,F-86-266
• Citation: 827 P.2d 1339,1992 OK CR 14
• Parties: Randall Eugene CANNON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1339

827 P.2d 1339

Randall Eugene CANNON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-266.

Court of Criminal Appeals of Oklahoma.

March 3, 1992.

An Appeal from the District Court of Oklahoma County; Jack Parr, District Judge.

RANDALL EUGENE CANNON, Appellant, was tried by jury and convicted of First Degree Murder, Burglary in the First Degree, Robbery in the First Degree, Kidnapping, Larceny of a Motor Vehicle, Arson in the Third Degree, Rape in the First Degree and Anal Sodomy. Appellant was found guilty on all counts and sentenced to death for the First Degree Murder charge. He was also sentenced to terms of 20 years, 100 years, 100 years, 20 years, 15 years, 250 years and 250 years respectively on the other counts. Appellant has filed this appeal seeking reversal of his conviction. The First Degree Murder, Arson in the Third Degree, Rape in the First Degree and Anal Sodomy charges are REVERSED. The charges of Burglary in the First Degree, Robbery in the First Degree, Kidnapping and Larceny of a Motor Vehicle are AFFIRMED.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Terry J. Jenks, A. Diane Hammons, Asst. Attys. Gen., Oklahoma City, for appellee.

OPINION

LANE, Presiding Judge:

Randall Eugene Cannon was convicted of First Degree Murder, Burglary in the First Degree, Robbery in the First Degree, Kidnapping, Larceny of a Motor Vehicle, Arson in the Third Degree, Rape in the First Degree and Anal Sodomy. He was tried jointly with a co-defendant, Loyd Winfred Lafevers, before a jury in Oklahoma County District Court, Case No. CRF-85-3254. Both Appellant and his co-defendant were found guilty on all counts and sentenced to death for the First Degree Murder charge. Both men were also sentenced to terms of 20 years, 100 years, 100 years, 20 years, 15 years, 250 years and 250 years respectively on the other counts. Appellant has filed this appeal seeking reversal of his convictions. We find that we must grant the requested relief insofar as the murder, rape, sodomy and arson convictions are concerned. All other counts, however, are affirmed.

The facts of this case are detailed in the opinion previously rendered with regard to Appellant's co-defendant, Lafevers. See Lafevers v. State, 819 P.2d 1362 (Okl.Cr.1991). Briefly stated, Appellant was convicted of the death of eighty-five year old Addie Hawley. Hawley was raped, sodomized, beaten and then burned after being abducted from her home. Appellant was also convicted of having robbed Hawley, burglarizing her home and burning her car.

In his first two propositions of error, Appellant claims that the trial court erred when it denied his request for a trial separate from that of his co-defendant, Lafevers. Concomitant with that denial, Appellant was required to share the nine allowed preemptory challenges during the voir dire proceedings. In Lafevers, we found that the denial of separate trials and the full complement of preemptory challenges constituted reversible error. We held that the two defendants presented mutually antagonistic defenses with respect to the charges for Murder, Third Degree Arson, First Degree Rape and Forcible Anal Sodomy. We discussed the multitude of fundamental errors which occurred when the two men were forced to share a single trial. For the same reasons expressed in Lafevers, we find that we must also reverse the same convictions in the present case. Accordingly, Appellant's convictions for Murder, Third Degree Arson, First Degree Rape and Forcible Anal Sodomy are REVERSED and REMANDED to the district court for a new trial.

Having reversed these convictions, we need only discuss the remaining allegations of error which impact the convictions for kidnapping, burglary and robbery. The first allegation is found in Appellant's Proposition III, where he attacks the Oklahoma system of jury selection because it allows an exemption for those members of the community over seventy years old. We have previously rejected this claim on several occasions. Fox v. State, 779 P.2d 562 (Okl.Cr.1989) cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990); Moore v. State, 736 P.2d 161 (Okl.Cr.1987), cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987). Appellant fails to provide any persuasive reason why our opinion should change.

In his second proposition concerning jury selection, Proposition IV, Appellant contends that the trial court erred when it refused to allow individual questioning of potential jury members. Appellant properly recognizes that there is no right to sequestered, individual questioning during jury selection. Irvin v. State, 617 P.2d 588 (Okl.Cr.1980). However, he claims that statements made by a number of potential jurors were prejudicial and deprived him of his right to a fair trial. We disagree.

We considered an identical issue in Vowell v. State, 728 P.2d 854, 857-58 (Okl.Cr.1986), wherein we held:

Appellant requested individual voir dire of jurors, as well as sequestration of them during voir dire. Appellant did not have a right to either request, though such may be allowed by the trial court....

The existence of extensive pretrial news coverage does not itself demand individual or sequestered voir dire.... The crux of the issue is whether [a] defendant can receive fair and impartial jurors.... An exhaustive voir dire was conducted accounting for nearly seven hundred pages of transcript, and as previously noted, an apparently impartial jury was selected.

We find no reason to reach a different conclusion in this case. There is no indication that Appellant was not able to properly conduct a constitutionally adequate voir dire. Although he claims that the jury was unfair, he does not specify any individual members of the panel which may have been improperly allowed to serve. There was extensive questioning and all those chosen swore that they could be fair and impartial jurors. While the limited number of preemptory challenges may, in some situations, impact the makeup of the jury, Appellant has failed to establish that there were individuals on the jury which he would have challenged had he been allotted more. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Accordingly, we must conclude that the very thorough voir dire proceedings undertaken in this case resulted in the fair and impartial jury to which Appellant is entitled.

The next issue which we must address involves Appellant's claim that his convictions for robbery, burglary and larceny violate the rules against double jeopardy. Specifically, he claims that the crimes were so related that they must be treated as the commission of only one crime. We disagree.

Although this claim was not made at trial, we have held that claims involving principles of double jeopardy are so fundamental that a failure to object at trial will not waive the right to appeal on this issue. Hunnicutt v. State, 755 P.2d 105, 109 (Okl.Cr.1988). Accordingly, we will review the merits of the claim.

We have long held that merely because multiple transgressions are committed in the criminal episode, a defendant does not escape punishment for each separate offense where proper. Salyer v. State, 761 P.2d 890 (Okl.Cr.1988); Hunnicutt v. State, 755 P.2d 105 (Okl.Cr.1988); Hale v. State, 750 P.2d 130 (Okl.Cr.1988), cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988); Brecheen v. State, 732 P.2d 889 (Okl.Cr.1987), cert. denied, 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 244 (1988). Punishment for multiple offenses committed as a part of the same criminal activity are appropriate if the establishment of the individual crimes requires proof of an additional fact or facts which sets it apart from the other offenses. Turner v. State, 786 P.2d 1251 (Okl.Cr.1990).

In this case, the only proof which the three crimes at issue have in common is that they were all committed at Addie Hawley's home. Burglary is complete upon the entry of the home. Brecheen, 732 P.2d at 899. The robbery involved the subsequent theft of property from Mrs. Hawley through the use of force or violence, which is distinctively different from either burglary or larceny of an automobile. Thompson v. State, 748 P.2d 526 (Okl.Cr.1988). There is no double jeopardy violation with respect to these three crimes.

In Proposition IX, Appellant makes a two fold argument concerning rulings by the trial court which he claims impeded his ability to question two witnesses. He claims first that he was not allowed to inquire into the facts underlying the arrest of David Bruce Hawkins, a former cellmate of Lafevers who testified in great detail about statements made by Lafevers concerning this crime. Hawkins' testimony indicted that Lafevers was the more culpable of the two men and had committed the rape of Mrs. Hawley.

Appellant's argument is incongruous in that he claims that it was error (to which he failed to object) to...