Hatch v. State

• Decision Date: 10 July 1992
• Docket Number: No. F-87-393,F-87-393
• Citation: 835 P.2d 880
• Parties: Steven Keith HATCH a/k/a Steve Lisenbee, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 880

835 P.2d 880

Steven Keith HATCH a/k/a Steve Lisenbee, Appellant, v. STATE of Oklahoma, Appellee.

No. F-87-393.

Court of Criminal Appeals of Oklahoma.

July 10, 1992.

An Appeal from the District Court of Canadian County; Joe Cannon, District Judge.

Steven Keith Hatch aka STEVEN KEITH LISENBEE, Appellant, was convicted of two counts of Murder in the First Degree in Canadian County District Court. He received a sentence of death by lethal injection for each conviction. This Court affirmed his convictions but remanded his case to the District Court for review of sentencing. An evidentiary hearing was conducted before the Honorable Stan Chatman, who reviewed the sentence and determined that it was in accordance with the directive of this Court, and this Court AFFIRMED. Appellant filed an application for post-conviction relief in the District Court of Canadian County, and relief was granted by The Honorable Judge Cannon as to the sentencing review. In all other respects, post-conviction relief was denied. At the conclusion of the sentencing review, the District Court fixed punishment at death in both CRF-79-302 and CRF-79-303 and Appellant was sentenced accordingly. Appellant now appeals. AFFIRMED.

Virgil C. Black, Oklahoma City, Thomas M. Lahiff, Jr., New York City for appellant.

Cathy Stocker, Dist. Atty., Karen Cline, Asst. Dist. Atty., El Reno, Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION DENYING POST CONVICTION RELIEF

LUMPKIN, Vice-Presiding Judge:

Appellant, has appealed to this Court from an order of the District Court of Canadian County denying his application for post-conviction relief in Case No. CRF-79-303 and CRF-79-302. Appellant was convicted on two counts of Murder in the First Degree and two counts of Shooting With Intent to Kill. 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. Appellant's convictions on two counts of murder in the first degree and two counts of shooting with intent to kill were upheld by this Court in Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983) [hereinafter, Hatch I ]. However, in light of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), which forbids imposition of the death penalty against certain defendants, the case was remanded to the Canadian County District Court in Hatch I for an evidentiary hearing. In the Hatch I decision, this Court found that no error occurred, cumulative or otherwise, to justify further reversal or modification of petitioner's judgments and sentences. Hence, the remand was not for a full resentencing trial, but to review the sentencing imposed in light of Enmund.

On January 25 and 26, 1984, an evidentiary hearing was conducted before the Honorable Stan Chatman in compliance with this Court remand in Hatch I. At the conclusion of that hearing the trial court determined there was compliance with the constitutional mandate set forth in Enmund before the death penalty was imposed. In Hatch v. State, 701 P.2d 1039 (Okl.Cr.1985) (F-84-91) (Hereinafter Hatch II ), this Court affirmed the trial court's finding that after applying the Enmund criteria, the sentences of death were supported by the evidence. In Hatch II, this Court reiterated that its reason for remanding this case to the district court was just to ensure compliance with the constitutional mandate as expounded in Enmund. On January 13, 1986, a Petition for writ of certiorari was denied by the United States Supreme Court in the same case. See, Hatch v. Oklahoma, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).

On July 23, 1985, Appellant filed a writ of habeas corpus in federal district court and was denied relief on July 24, 1985. Appellant appealed the denial of federal habeas corpus relief on July 25, 1985, to the United States Court of Appeals for the 10th Circuit. That court granted Appellant a stay of his appeal on April 22, 1986, pending exhaustion of newly discovered claims in State court.

Appellant filed an application for Post-Conviction Relief in CRF-79-302, 79-303, 79-304 and 79-305 in the District Court of Canadian County, and a hearing was held on that application before the Honorable Joe Cannon on January 26, 1987. Judge Cannon, after finding sufficient evidence to show that Judge Chatman should have recused himself before conducting the sentencing review, granted post-conviction relief as to that review. In all other respects, post-conviction relief was denied. At the time the relief was granted, Appellant was returned to the position he occupied when this Court originally remanded his death sentences for review in light of Enmund.

On February 27, 1987, Appellant filed a Petition in Error in this Court appealing that portion of the District Court's decision denying his Application for Post-Conviction Relief in CRF-79-302, 79-303, 79-304, and 79-305. On March 6, 1987, this Court affirmed the District Court's order in PC-87-134.

On March 30, 1987, the sentencing review hearing commenced in the District Court of Canadian County before the Honorable Joe Cannon. On April 3, 1987, following the presentation of evidence, the district court fixed punishment at death in both CRF-79-302 and 79-303. Appellant was sentenced accordingly. On April 17, 1987, Appellant filed a Motion for New Trial. This motion was denied. Appellant is now asking this Court to review the validity of his sentences. ¹

In his complaint Appellant raises twelve allegations of error. Although Judge Cannon went beyond the scope of Enmund in his review, the only matter before this Court is the validity of that review in light of Enmund. Therefore, we limit our review only as to compliance with Enmund, which focuses on the individual culpability of the Appellant himself for "individualized consideration." See, 458 U.S. 782, 792, 102 S.Ct. 3368, 3377, 73 L.Ed.2d 1140 (1982). Specifically, Enmund forbids imposition of the death penalty on a defendant, who may have aided and abetted a felony in the course of which a murder was committed by others, but who did not himself kill, attempt to kill, intend to kill or contemplate that life would be taken.

For the foregoing reasons, only two of the twelve allegations raised in this appeal are properly before this Court: (1) Appellant's right to confront witnesses against him when a witness' past recollection recorded was read into the record; and (2) the trial court's refusal to admit the expert opinion of the defense psychiatrist that Appellant had no intent to kill and was dominated by his accomplice.

Appellant alleges his right to confront witnesses against him was violated when a witness's past recollection recorded was read into the record during the Enmund review. In Teafatiller v. State, 739 P.2d 1009, 1011 (Okl.Cr.1987), this Court admitted contents of a prior writing in which the witness' memory was refreshed. 12 O.S.1981, § 2803(5), clearly provides:

5. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. The memorandum or record may be read into evidence but may...