Edmondson v. Hess, 78-230-C.

• Decision Date: 22 December 1978
• Docket Number: No. 78-230-C.,78-230-C.
• Citation: 482 F. Supp. 815
• Parties: Lonnie R. EDMONDSON, Petitioner, v. Norman B. HESS et al., Respondents.
• Court: U.S. District Court — Eastern District of Oklahoma

482 F. Supp. 815

Lonnie R. EDMONDSON, Petitioner, v. Norman B. HESS et al., Respondents.

No. 78-230-C.

United States District Court, E. D. Oklahoma.

December 22, 1978.

Lonnie R. Edmondson, pro se.

Jerry Earl Benson, Asst. Atty. Gen., Oklahoma City, Okl., for respondents.

MEMORANDUM OPINION

DAUGHERTY, Chief Judge.

This is a proceeding for a writ of habeas corpus by the above named petitioner who is presently incarcerated in the Oklahoma State Penitentiary at McAlester, Oklahoma. Petitioner claims that his detention, pursuant to the judgment and sentence of the District Court of Muskogee County, Oklahoma, in Case No. CRF-72-239, is unlawful. Petitioner was convicted after trial by jury of murder in the first degree and sentenced to life imprisonment.

Petitioner had first been convicted in a joint trial with his codefendant, Robert Hamm. That conviction was reversed in Edmondson v. State, 515 P.2d 1158 (Okl.Cr. 1973) and resulted in his trial in CRF-72-239. Direct appeal from the second conviction was had in Edmondson v. State, 532 P.2d 81 (Okl.Cr.1975), wherein the judgment was affirmed. Petitioner has also sought post-conviction relief in the Muskogee County District Court which was denied on December 14, 1976 after an evidentiary hearing. This order was appealed to the Oklahoma Court of Criminal Appeals (PC-77-616) which affirmed the decision of the District Court on September 8, 1977.

Petitioner proceeds herein pro se and in forma pauperis. While the asserted grounds for relief are not cogently presented, the court has liberally construed the petition and carefully examined the supporting facts given in regard to each ground. The court believes that the petition presents the following grounds in support of the relief sought:

I. The trial court (all references to the "trial court" shall be to the second trial whose conviction is challenged here, unless otherwise specified) improperly admitted the testimony of Shirley Johnson Hamm.

II. The trial court committed reversible error in admitting hearsay testimony into evidence.

III. The admission of Exhibits 5 and 6 by the trial court denied petitioner his right to confrontation and could have reasonably contributed to his conviction.

IV. The prosecution knowingly suborned false testimony from the witness Louis Bradley.

V. Petitioner was denied the right to confront and cross-examine Dr. Harvey Randall.

VI. Petitioner was denied his constitutional rights by the failure of the Muskogee. District Court to appoint counsel in the appeal of that court's denial of petitioner's post-conviction application.

Respondent has filed a response contesting petitioner's right to issuance of the writ. Included with the response was the transcript and record of petitioner's trial together with records from all the appellate and post-conviction proceedings had herein. Also before the court are Exhibits 5 and 6 from petitioner's trial. Both petitioner and respondent agree that all state remedies have been exhausted. Each of petitioner's propositions will be considered separately.

Proposition I. The Trial Court Improperly Admitted the Testimony of Shirley Johnson Hamm.

In support of this proposition, petitioner contends that Shirley Johnson Hamm was in fact the common law wife of Robert Hamm with whom petitioner had first been tried and convicted. Petitioner would also show that Mrs. Hamm was convicted of perjury after testifying at the first trial. Otherwise, petitioner does not specify in what manner this witness' testimony was inadmissible.

Review of the record indicates that the complained of perjury occurred at petitioner's first trial when Mrs. Hamm testified that she only lived with petitioner's codefendant (Robert Hamm) because of fear and duress. Mrs. Hamm later admitted at the second trial that she freely consented to living with Robert Hamm. Thus, at the trial the propriety of which is now challenged, there was no perjury. Further, the only question which this conflicting testimony went to was whether a spousal privilege existed on behalf of Robert Hamm. At petitioner's second trial, petitioner was tried alone and no allegation was ever made that he was married to Mrs. Hamm. Even if some error was committed in the admission of Mrs. Hamm's testimony, such would only involve a matter of state law.

Petitioner's first proposition of error raises no violation of the Constitution or the laws or treaties of the United States. This court can only entertain an application for a writ of habeas corpus where such a violation is alleged. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Hopkins v. Anderson, 507 F.2d 530 (10th Cir. 1974), cert. denied, 421 U.S. 920, 95 S.Ct. 1586, 43 L.Ed.2d 788 (1975). See also 28 U.S.C. § 2254.

Proposition II. The Trial Court Committed Reversible Error in Admitting Hearsay Testimony into Evidence.

In this proposition petitioner challenges the propriety of the trial court's admission of certain evidence. Specifically petitioner complains of two separate matters: one, the testimony of Shirley Johnson Hamm on direct, and two, Exhibits 5 and 6. Petitioner's complaint here regarding the exhibits is the same issue raised in Proposition III and shall be treated there. The alleged defect in the proceedings regarding Shirley Johnson Hamm's testimony occurred as follows:

Q. Now Shirley, tell the jury now what conversation took place at that time after Lonnie Edmondson dumped the money there on the bed from this bag.

A. Well, he just said, "We had to shoot that peckerwood."

Q. Who said that?

A. Lonnie.

Q. What else was said?

A. Nothing else because Robert, you know, just, "No, don't tell her that."

Q. Lonnie said what?

MR. PAYNE: Excuse me, Your Honor.

THE COURT: What's your objection?

MR. PAYNE: May I approach the Bench?

(Whereupon, the following conference was had at the bench:)

MR. PAYNE: Comes now the Defendant, Lonnie Edmondson, and moves for mistrial for the reason that the witness, Shirley Johnson, testified to what Robert Hamm told her.

MR. CONRAD: In the presence of Edmondson.

THE COURT: Let me get it back. Motion overruled, exceptions.

Petitioner's assignment of error in the trial court relates to the admission into evidence of the testimony of Shirley Johnson Hamm as to what was told her by Robert Hamm. Petitioner's contention that this was error overlooks the fact that Robert Hamm's declaration was made in the petitioner's presence. And this is not a case where petitioner merely remained silent. On the contrary, he joined in the conversation. If indeed Robert Hamm's declaration be deemed as hearsay, such comes within a well recognized exception to the rule and was clearly admissible. See United States v. Adams, 470 F.2d 249 (10th Cir. 1972); United States v. Steel, 458 F.2d 1164 (10th Cir. 1972); and Martinez v. United States, 295 F.2d 426 (10th Cir. 1961). In United States v. Adams, supra, 470 F.2d at 251, the following appears:

A declaration of one defendant made in the presence of another defendant, under circumstances warranting an inference that the other defendant would naturally have contradicted it if he did not assent, is admissible. . . . The theory is that it is an admission against interest of the silent party and therefore within an exception to the hearsay rule.

Under the foregoing law the testimony here complained of was clearly admissible.

Proposition III. The Admission of Exhibits 5 and 6 by the Trial Court Denied Petitioner his Right to Confrontation and Could have Reasonably Contributed to his Conviction.

In support of this proposition petitioner would show to the court that Exhibits 5 and 6 were admitted into evidence and given to the jury. These exhibits were statements given by Shirley Johnson Hamm to the District Attorney during his investigation of the crime petitioner stands convicted of. Petitioner also claims that these exhibits contain hearsay statements of Robert Hamm who was not available for cross-examination. Careful review of the exhibits shows that the only statements which petitioner complains of are in Exhibit 6 and consist of the following:

Q. When Lonnie Edmondson — you say Lonnie told you they had shot a peckerwood?

A. Yeah, he just — I said, "Where you all been?" He says — I don't know if he said girl or called me by my name. He said, "We shot a peckerwood," and Robert said, "Don't tell her that man."

Q. He didn't tell you who shot the peckerwood?

A. No, he said "we."

Q. Has Robert Hamm ever told you which one did the actual shooting?

A. Yes, he did.

Q. Who did he say did it?

A. He did.

Q. Robert said he done it himself?

A. Once he told me Lonnie did it because I was definitely trying to find out if he did. I didn't want him to be the one to shoot the man. The gunshot wound kill the man?

Q. Yes.

A. He said first he said Dickie did it, then he said that night they came to pick him up he said he did.

Q. He told you that?

A. He said he knew you all had him.

Petitioner complains that the admission of these exhibits denied him the right to confront their source, Robert Hamm, and that they could have reasonably contributed to petitioner's conviction. The opinion of the Oklahoma Court of Criminal Appeals on direct appeal of this matter, Edmondson v. State, 532 P.2d 81, 85 (Okl.Cr.1975), appears to admit (perhaps only arguendo) that petitioner was denied his right to confrontation but held that such could not have contributed to petitioner's conviction. This court shall assume for the moment that petitioner's right to confrontation was violated.

In Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967) the Supreme Court said:

We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.

In determining whether such errors require reversal the...