919 P.2d 1130 (Okla.Crim.App. 1996), F-94-1196, Hain v. State

Docket Nº:F-94-1196.
Citation:919 P.2d 1130
Party Name:Scott Allen HAIN, Appellant, v. STATE of Oklahoma, Appellee.
Case Date:June 07, 1996
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 1130

919 P.2d 1130 (Okla.Crim.App. 1996)

Scott Allen HAIN, Appellant,

v.

STATE of Oklahoma, Appellee.

No. F-94-1196.

Court of Criminal Appeals of Oklahoma.

June 7, 1996.

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James Michael Rogers, Tulsa, for appellant, at trial.

Lantz McClain, District Attorney, Sapulpa, for State, at trial.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, for State, on appeal.

OPINION

LUMPKIN, Judge.

Appellant Scott Allen Hain was tried by jury and convicted of two counts of Murder in the First Degree (21 O.S.1981, § 701.7.), two counts of Kidnapping (21 O.S.1981, § 741), two counts of Robbery with a Firearm (21 O.S.1981, § 801), one count of Third Degree Arson (21 O.S.1981, § 1403), and two counts of Larceny of an Automobile (21 O.S.1981, § 1720), Case No. CRF-87-240, in the District Court of Creek County. In Hain v. State, 852 P.2d 744 (Okl.Cr.1993), this Court reversed with instructions to dismiss the conviction for Robbery with Firearms and affirmed all other convictions. The death sentences imposed for the murder convictions were vacated and the case was remanded to the District Court for new second-stage proceedings. Retrial of the sentencing stage was held before the Honorable Donald Thompson. The jury found the existence of three aggravating circumstances and recommended the punishment of death for each count of murder. The trial court sentenced accordingly. From these judgments and sentences Appellant has perfected this appeal.

Appellant was found guilty of committing the murders of Laura Lee Sanders and Michael Houghton. The facts of this crime are set forth in Hain, at 746-747.

PRE-TRIAL ISSUES

In his fourth assignment of error Appellant contends the trial court erred in overruling his motion for a change of venue and his motion to recuse the prosecutor. In a pre-trial hearing, Appellant offered in support of his motion for a change of venue, certain political advertisements submitted by the prosecutor and published in newspapers of general circulation in the judicial district. Appellant found the advertisements objectionable for referring to himself and co-defendant Lambert as "notorious" and stating that the prosecutor had obtained murder convictions on Appellant and his co-defendant and that the victims burned to death in the trunk of a car. In addition, Appellant offered a letter to a local newspaper written

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by the mother of one of the victims stating that the prosecutor should be re-elected to his office because of his investigation, prosecution and conviction of those responsible for her child's death.

Appellant also presented an affidavit from the defense investigator which stated that three or more persons refused to sign an affidavit stating that Appellant could not get a fair trial in Creek County. Appellant charged there was a conspiracy of silence in the community which prevented him from obtaining the statutorily required affidavits. A local criminal defense attorney testified that in his opinion Appellant could not get a fair trial in that jurisdiction.

Despite Appellant's failure to supply the statutorily required affidavits, the trial court heard argument and ruled that Appellant had failed to show the pre-trial publicity was so extensive as to prevent the impaneling of impartial jurors. The trial court agreed to re-examine the issue during voir dire if necessary. Subsequently, the motion was reargued by Appellant at the beginning of voir dire. The court reserved ruling until after voir dire at which time the motion was denied. Now on appeal, Appellant argues that in addition to the above, a change of venue was warranted because of general pre-trial publicity and the prosecutor's involvement in a campaign to unseat certain judges of The Oklahoma Court of Criminal Appeals because of the remanding of this case for new sentencing proceedings.

Title 22 O.S.1981, § 561, provides that a request for a change of venue must be accompanied by affidavits of at least three (3) credible persons who reside in said county. Appellant failed to comply with this statutory requirement. He offers no support for his charge that a conspiracy of silence prevented him from obtaining the requisite affidavits. We find his unsupported allegations insufficient to excuse him from statutory compliance. Consequently, the issue has been waived and is therefore not properly before this Court. Brown v. State, 871 P.2d 56, 61 (Okl.Cr.), cert. denied --- U.S. ----, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994).

We review only for plain error and find none. Our analysis begins with the rebuttable presumption that the accused can receive a fair trial in the county in which the offense occurred and the burden of persuasion is on the accused, who must show actual exposure to the publicity and resulting prejudice by clear and convincing evidence. Id. at 62; Shultz v. State, 811 P.2d 1322, 1329 (Okl.Cr.1991).

Merely showing that pre-trial publicity was adverse to him is not enough. Bear v. State, 762 P.2d 950, 953 (Okl.Cr.1988). In cases going to trial in which a change of venue has been denied, the relevant inquiry on appeal is whether the accused received a fair trial from jurors who could lay aside any personal opinions and base a verdict on the evidence. Braun v. State, 909 P.2d 783, 792 (Okl.Cr.1995), cert. denied --- U.S. ----, 116 S.Ct. 1438, 134 L.Ed.2d 559 (1996). The burden of persuasion still lies with the accused to show by clear and convincing evidence the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be held therein. Id.

We apply a two-pronged test to determine whether a due process violation occurred as a result of juror knowledge and pre-trial publicity. Prejudice may be presumed where the fact pattern reveals that the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceeding. Bear, 762 P.2d at 953. The key to this standard appears to be whether the proceedings against the accused were "entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob." Braun, at 792 quoting Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594 (1975).

In Stafford v. Saffle, 34 F.3d 1557, 1566 (10th.Cir.1994) the Tenth Circuit Court of Appeals said that in order to establish the presumption of prejudice, the defendant must show "an irrepressibly hostile attitude pervaded the community." If the facts are

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not sufficiently egregious to give rise to a presumption of prejudice, the totality of the circumstances will be examined to determine whether the accused received a trial which was fundamentally fair. Braun, at 792-93. This review should focus on the voir dire statements of the individual jurors, voir dire statistics, and the community atmosphere as reflected in the news media. Id.

The record in the present case does not reflect "an irrepressibly hostile attitude pervaded the community" or that the influence of the news media pervaded the proceeding. While we do not have any newspaper clippings of the trial before us, there is no indication the news media itself created a hostile attitude in the community toward Appellant. Further, Appellant has not asserted that any articles appearing in the local newspapers were not factual accounts or that they were invidious or inflammatory in nature.

The prosecutor's political advertisements do not concern us. But these advertisements, published one month prior to the start of the re-trial, which specifically applaud the prosecutor for securing a conviction against Appellant and labeling Appellant "notorious", are potentially inflammatory and prejudicial. When combined with the opinion of a local defense attorney that Appellant could not receive a fair trial, the potential for a presumption of prejudice is high. However, in the present case, we find nothing in the record which indicates a "community-wide rush to judgment" that has infected other trials which have been set aside for lack of an impartial jury. Stafford, at 1566; Braun, at 792-93. "Presumed prejudice is rarely invoked and only in extreme circumstances." Stafford, at 1567. Appellant has not met his burden of showing presumed prejudice.

Therefore, examining the totality of the circumstances for actual prejudice, we find nothing which suggests a circus atmosphere or lynch mob mentality. Id. at 1566. Any potentially prejudicial actions in the community at large did not cross the threshold into the courtroom and pervade the judicial proceedings. Most of the jurors who actually sat on Appellant's jury had heard of the case, either through the media or personnel conversations. Each was asked during voir dire whether he or she could put aside any preconceived notions or opinions and decide the case solely on the law and evidence presented during the trial. Each responded in the affirmative. No specific member of the jury panel has been challenged by Appellant, at trial or now on appeal, as unable to set aside preconceived notions. Our review of the record shows no individual sat on the jury who expressed opinions they could not set aside. Any potential juror who expressed reservations about their ability to be fair and impartial was either dismissed for cause or stricken by a peremptory challenge.

We have repeatedly held an accused is not entitled to a jury who knows nothing about the case. Shultz, 811 P.2d at...

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