Cannon v. State

• Decision Date: 08 September 1995
• Docket Number: No. F-93-526,F-93-526
• Citation: 904 P.2d 89,1995 OK CR 45
• 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 89

904 P.2d 89

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

No. F-93-526.

Court of Criminal Appeals of Oklahoma.

Sept. 8, 1995.

Order Denying Rehearing Oct. 6, 1995.

An Appeal from the District Court of Oklahoma County; Thomas C. Smith, District Judge.

James T. Rowan, Assistant Indigent Defender, Norman, for defendant at trial.

Lou Keel, Susan Caswell, Assistant District Attorneys, Oklahoma City, for State at trial.

Cindy G. Brown, Assistant Appellate Indigent Defender, Norman, for appellant on appeal.

Susan Brimer Loving, Attorney General of Oklahoma, A. Diane Blalock, Assistant Attorney General, Oklahoma City, for appellee on appeal.

OPINION

CHAPEL, Vice Presiding Judge:

Randall Eugene Cannon was tried by jury before the Honorable Thomas C. Smith in the District Court of Oklahoma County, in Case No. CRF-85-3254. He was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1981, § 701.7, Third Degree Arson in violation of 21 O.S.1981, § 1403(A), First Degree Rape in violation of 21 O.S.1981, § 1114, and Forcible Anal Sodomy in violation of 21 O.S.Supp.1982, § 888. At the conclusion of the first stage of trial, the jury returned a verdict of guilty. ¹ During sentencing, the jury found 1) the murder was especially heinous, atrocious, or cruel; 2) there was a probability that Cannon would commit criminal acts of violence that would constitute a continuing threat to society; and 3) the murder was for the purpose of avoiding arrest or prosecution. Cannon was sentenced to death for the murder conviction, ten years incarceration for arson, forty years

for rape, and twenty years for sodomy. From these convictions Cannon has perfected his appeal, raising sixteen propositions of error

Around 10 p.m. on June 24, 1985, Cannon ² and Loyd LaFevers broke into 84-year-old Addie Hawley's house. The two ransacked the house, beat Hawley, forced her into her Buick, and drove off. At some point they put Hawley in the trunk. They may have stopped and filled a bottle or gas can with gasoline. Eventually LaFevers and Cannon stopped near a vacant lot, took Hawley out of the trunk, beat her again, then poured gasoline on her and set her afire. They drove the Buick to another vacant area a short distance away and set it on fire as well. Witnesses saw the two with a gas can by the car and running from the scene. Before midnight, firefighters found Hawley still alive. She died about 5:30 a.m. of both blunt force head trauma and burns covering 60-65% of her body. Either injury would have caused death.

PRETRIAL ISSUES

Cannon argues in Proposition IX that his custodial statement was involuntary and inadmissible because it was obtained through an illegal arrest and detention. Cannon was arrested on an outstanding misdemeanor warrant and two outstanding traffic warrants. He seems to suggest the traffic warrants did not exist and alleges the misdemeanor warrant was invalid. ³

The State first suggests that Cannon has waived this argument. No pretrial motion raising the legality of the arrest appears in the record, and such a motion was not among the 58 defense motions and objections heard in the motions hearing of April 29, 1993. Cannon's statements comprised the primary evidence in a hearing held after voir dire and before opening statements on a motion to suppress evidence gathered from illegal arrest. The State argues that Cannon waived all objection to the legality of the arrest if he entered a plea to the charges before raising the issue. ⁴ Cannon responds that he is challenging the admission of his confession based on an illegal search and seizure, and that such a challenge (which must be interposed at the first opportunity) may be made at the beginning of the trial by a motion to suppress the evidence. ⁵ While the State has a point, Cannon is directly attacking the admission of his confession, not directly attacking the validity of the arrest. As the procedural question is arguable we address the substance of the proposition. ⁶

Cannon claims that the misdemeanor warrant was invalid on its face. Cannon was arrested on an outstanding misdemeanor warrant for "violation of suspended sentence". ⁷ The warrant is facially valid but it lacks an endorsement setting the amount of bail. Cannon argues that the law requires a warrant to fix the amount of bail with an endorsement to that effect for all bailable offenses. ⁸ This Court has not found, and Cannon fails to cite, any cases holding that failure to include the bail endorsement on the warrant at the time of arrest renders the warrant invalid. ⁹ The State argues that bail was not set on the warrant because Cannon was never brought before a magistrate on that charge (at which time bail would have been determined). Less than 24 hours after Cannon's June 25 arrest, he was charged with murder and the accompanying offenses and held without bond on those charges. Generally speaking, a delay of more than 48 hours is presumptively unreasonable. ¹⁰ Cannon claims he was prejudiced by the lack of endorsement and the delay in seeing a magistrate because, if bail had been set at the time of arrest, he could have made bail and been out of jail before the time he made statements about Hawley's murder to officers the following day. This is speculative at best. We do not find that the warrant was invalid on its face, and any possible error would be harmless because Cannon has not shown he was prejudiced. In addition, if the misdemeanor warrant were thrown out, the traffic warrants appear sufficient to uphold the legality of the arrest. ¹¹

Cannon also claims that the illegal arrest requires suppression of his custodial statements. As the arrest was not illegal, Cannon's statements were not "fruits of the poisonous tree" and were admissible.

In Proposition X, Cannon complains the State failed to adequately establish that he knowingly and voluntarily consented to a warrantless search of his home. Cannon was arrested and booked on misdemeanor and traffic warrants during the late afternoon or evening of June 25. The next morning Officer Pacheco came to Cannon's cell and asked if he would sign a consent to search form allowing police to search his

house. In a Jackson-Denno ¹² hearing, Pacheco testified he explained the request, and Cannon agreed to sign a consent form if his brother or parents were present during the search. Pacheco testified he interpolated that condition on the form and Cannon signed it. ¹³ Cannon testified he did not remember this at all. He said the only people who visited him on the 26th were the same officers who arrested him (including Pacheco); Cannon denied signing the consent form and said the signature on the form was not his. Cannon signed another sheet of paper while on the stand; the record indicates that signature differed from the one on the consent form (Defendant's Exhibit 1 does differ slightly from the signatures on Cannon's written statement, which he also could not remember signing). The original consent form was apparently lost between the first and second trials and the photocopy provided for the hearing was not admitted into evidence. The trial court found Cannon gave knowing and voluntary consent to search. Where evidence taken in camera is sufficient to support a trial court's ruling that a defendant's statements are voluntary and admissible, this Court will not disturb the ruling on appeal. ¹⁴

Cannon concedes that police do not need a warrant to conduct a consent search, ¹⁵ but claims that the State has not met its burden to show he knowingly and intelligently waived his right to a search warrant. ¹⁶ Cannon claims that Pacheco's visit did not happen and he never signed the form. Cannon asserts that the signature on the form is not his, as it does not match Defendant's Exhibit 1. ¹⁷ Cannon succeeded in preventing the copy of the consent form from being admitted into evidence, therefore this Court cannot compare the signatures. The trial court, however, had ample opportunity to compare the two and determined that the evidence showed Cannon signed the form. Without any evidence to review, this Court will not second-guess the trial court's decision. In addition, Pacheco's evidence clearly supports the trial court's ruling that Cannon knowingly and voluntarily waived his right to a search warrant.

JURY SELECTION

In Proposition XVI, Cannon complains of voir dire errors in three subparts. He claims a juror was improperly excused for cause, another juror was improperly not excused for cause, and that he should have received additional peremptory challenges.

Cannon first argues that prospective juror Vann was improperly excused for cause. Cannon's right to an impartial jury prohibits the exclusion of venire members who voice general objections to the death

penalty or express scruples against its imposition. ¹⁸ The relevant question is whether the juror's views could prevent or substantially impair the performance of his duties as a juror in accordance with the instructions and his oath. ¹⁹ A juror's views do not have to be proved with unmistakable clarity. ²⁰ This Court has held responses such as "I don't believe I could" sufficient to dismiss jurors for cause. ²¹ The manner and extent of voir dire are within the discretion of the trial court, and will not be disturbed absent an abuse of discretion. ²²

Cannon argues that Vann was improperly excused because he said he was not opposed to the death penalty and in the right case would consider imposing it. A thorough reading of the transcript shows that Vann did not understand what was being asked. Initially he said he was not personally opposed to the death penalty but could not consider imposing it as a juror. Later he agreed he would have preconceived notions of appropriate punishment but admitted he did not know what that phrase meant; that he could consider all punishments but his mind was closed; and that he didn't believe in the death penalty. Finally...