Hager v. State

• Decision Date: 24 June 1980
• Docket Number: No. F-77-349,F-77-349
• Citation: 612 P.2d 1369
• Parties: Richard Lawrence HAGER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1369

612 P.2d 1369

Richard Lawrence HAGER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-349.

Court of Criminal Appeals of Oklahoma.

June 24, 1980.

An appeal from the District Court, Kay County; Lowell Doggett, Judge.

Richard Lawrence Hager, appellant, was convicted of the offence of Murder in the First Degree; was sentenced to death, and appeals. REVERSED and REMANDED.

Robert H. Galbraith and Kevin Murphy, Ponca City, for appellant.

Larry Derryberry, Atty. Gen., and Jan Eric Cartwright, Atty. Gen., Ross N. Lillard, III, William S. Flanagan, Asst. Attys. Gen., for appellee.

OPINION

CORNISH, Presiding Judge:

In June or July, 1976, the appellant left the Enid, Oklahoma residence he shared with his wife, Mary Hager, and began traveling with Connie Sue Vaughn, whom he had met in Oklahoma City, and Billy Brown, his cousin from Wichita, Kansas. Mary Hager then began having an affair with Tony Corley. About 2:00 a. m. on September 5, 1976, the appellant returned to his Enid residence; and while he was there Tony Corley arrived. The appellant humiliated Corley both verbally and physically. He then forced Corley to accompany him when he left the house. The pair went to Perry, Oklahoma, where the appellant had previously rented a motel room with Connie Sue Vaughn and Billy Brown. Later the same day, the appellant and Billy Brown took Corley out in the country, where Hager shot Corley seven times.

The appellant was subsequently charged with Murder in the First Degree in the District Court of Kay County, Case No. CRF-76-196. Two special prosecutors from the Attorney General's Office were appointed to prosecute this case. Because the conviction for Murder in the First Degree and sentence of death must be reversed, we will discuss only relevant assignments of error. The appellant's complaints that a continuance was improperly denied and his challenge to a specific juror are now moot.

I

One alleged error relates to the State's extensive questioning of two witnesses concerning the appellant's activities in the days preceding the homicide. Connie Sue Vaughn testified to the appellant's cross-country travels some two months prior to the murder; Mary Hager testified to the abuse she suffered at the appellant's hands one day before the murder. ¹ The appellant sought to prevent such questioning by filing a motion in limine and by repeated objections during the trial.

The State falls just short of conceding that the challenged evidence was immaterial (". . . obviously not critical to proof of the instant case." (State's brief, page 32)), but maintains that it was admissible as an exception to the rule barring evidence of other crimes or as part of the res gestae and to shed light on the appellant's motive for the homicide. Neither argument is persuasive when the nature of the evidence is considered.

More than half of Connie Sue Vaughn's direct testimony served only to establish the appellant's lifestyle as a drifter. She detailed her travels with the appellant and Billy Brown through Oklahoma and Kansas from the end of June until the day of their arrest in mid-September. The State claims this testimony was admissible for several reasons:

1. The appellant had the murder weapon with him all through this period;

2. At one point during the travels the appellant rented the car which he was later to use in driving back and forth between Enid and Perry;

3. Connie Sue Vaughn's testimony corroborated the testimony of Mary Hager that the appellant was away from home throughout July and August, when Mary Hager was having an affair with Tony Corley;

4. Telling of the travels showed the appellant's familiarity with the region in which the murder took place;

5. The group went to Wichita, Kansas, during their travels and again after the homicide.

An extensive discussion is not required to show the fallacy of these arguments. It is irrelevant that the appellant had the murder weapon two months before the murder. There was eyewitness testimony which established that the appellant had the pistol on the day on the crime and did in fact use it to kill Tony Corley. A single question could have established that the appellant purchased the weapon in Oklahoma City. ² Similar reasoning applies to the rental of the car and the appellant's absence from home. The arguments regarding the appellant's familiarity with the region when he was unable to take officers directly to the location of the body, but had to hunt for it, and the trip to Wichita, are spurious. Nor is there merit to the State's claim that the appellant's travels are part of the res gestae of the murder. They are too far removed in time, place and subject matter.

The State also sought to prove an alleged association between the appellant and organized crime, but only showed that he wandered over a two-state area and made some telephone calls. It is argued that this was circumstantial evidence of the appellant's organized crime connection, but the fallacy of the State's argument is clear. The rule is well settled that, where circumstantial evidence is relied upon for conviction, the circumstances proved must not only be consistent with each other but inconsistent with any reasonable hypothesis other than the defendant's guilt. And a conviction cannot stand where the evidence establishes no more than a mere suspicion of guilt. Fain v. State, Okl.Cr., 551 P.2d 1140 (1976). ³ In this case, an association with organized crime is not the only reasonable hypothesis that can be drawn from the fact that the appellant traveled and used the telephone. The State's argument must fail.

The contested portion of Mary Hager's testimony cannot be challenged on appeal. As previously noted, the appellant sought to block this testimony with a motion in limine, but except for her identification of specific items of evidence, he failed to object to any of the testimony by his wife which he now challenges. Because of this failure, the alleged error was not properly preserved for review. Teegarden v. State, Okl.Cr., 563 P.2d 660 (1977).

While Mary Hager's testimony cannot be challenged on appeal, Connie Sue Vaughn's can. The appellant's objections were improperly overruled, and her testimony should not have been admitted.

II

The appellant argues that the trial court erred in admitting certain photographs into evidence over the appellant's objections. Upon a careful review of these photographs, we conclude that but for the photograph depicting the appellant's belt engraved with the name "Tony," none of the photographs had probative value and were highly prejudicial. In case of retrial, these photographs should not be admitted. See Deason v. State, Okl.Cr., 576 P.2d 778 (1978); Oxendine v. State, Okl.Cr., 335 P.2d 940 (1958).

III

In another assignment of error, the appellant complains of an evidentiary harpoon. The witness was a highway patrol officer with 11 years' experience. When the prosecutor asked him if the appellant had been advised of his rights the officer responded, "Well, this was after we had gone to the location of the body and when we were looking for the other body," (Emphasis added). The State maintains that the officer's remarks did not directly implicate the appellant. Certainly, by reasonable inference this testimony injected some evidence of another crime. This implies that the single series of events had resulted in more than one death; and the jury might naturally think that if the appellant had done the one killing he must have done the other one, too.

Here again, the State concedes this comment was error there was no other body but asserts the trial court's admonishment cured this error.

It has long been the rule in Oklahoma that police officers should not, while on the witness stand, make voluntary statements prejudicial to the rights of a defendant indicating other crimes. Mathis v. State, Okl.Cr., 553 P.2d 525 (1976); Sandersfield v. State, Okl.Cr., 461 P.2d 1019 (1969). This Court has repeatedly condemned and chastised similar practices by experienced police officers which were calculated to prejudice the jury. We hold that this evidentiary harpoon was error.

IV

Billy Brown's testimony reflects that he and the appellant went to the appellant's home in Enid several days before the murder. They did not go directly to the house, but drove around the block looking for police cars and then parked two houses away. Over the appellant's objection, the prosecutor was permitted to ask why they were looking for police cars. Billy Brown responded that "they had a Federal, because of something he had done in the Army, that he ." Although the jury was admonished and the appellant's objection sustained, his motion for a mistrial was overruled. He now urges that the jury was prejudiced against him by this evidence that he had committed some previous crime.

Here, too, the State concedes that error was committed, but urges that the error was not serious enough to require modification or reversal. It contends that the challenged testimony does not explicitly show that the appellant had committed some crime, but that at most the testimony "refers to...