Hall v. State

• Decision Date: 01 September 1982
• Docket Number: No. F-79-723,F-79-723
• Citation: 650 P.2d 893
• Parties: Edward Lyle HALL, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 893

650 P.2d 893

Edward Lyle HALL, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-723.

Court of Criminal Appeals of Oklahoma.

Sept. 1, 1982.

An Appeal from the District Court of Pittsburg County; Wesley Brown, Associate District Judge.

Edward Lyle Hall, appellant, was convicted of Murder in the First Degree in Pittsburg County District Court in Case No. CRF-77-102. He was sentenced to death, and appeals. REVERSED and REMANDED for a new trial.

Mark Barrett, Asst. Appellate Public Defender, Norman, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Appellate Criminal Div., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

Edward Lyle Hall was convicted of Murder in the First Degree. The jury recommended the death penalty after finding Hall guilty of killing a prison guard during his escape from the State Penitentiary at McAlester.

Three assertions of error will be addressed on appeal: (1) Is Hall's felony-murder conviction violative of the Fifth Amendment double jeopardy clause? (2) Was Hall denied a fair trial as a result of the State's failure to disclose exculpatory evidence and perjured testimony? (3) Did the trial court err in excluding evidence of Sealy's prison record?

I

We will first address Hall's argument that his felony-murder conviction violates double jeopardy principles. Hall was initially charged with two separate offenses: Escape from Prison and Felony-Murder. On September 6, 1979, the State filed a motion to consolidate the two charges, which the trial court granted since both offenses were based upon the same acts or transactions. Joining the two informations for trial was the proper procedure under 22 O.S. 1981, § 438. See Dodson v. State, 562 P.2d 916 (Okl. Cr. App. 1977).

Prior to trial, Hall entered a plea of guilty on the escape count. He then proceeded to trial on the felony-murder count and was found guilty. Hall neither claimed a double jeopardy violation prior to trial nor when he motioned for new trial; rather he raised it for the first time on appeal.

In view of Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); and Brown v. Ohio, 431 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we find that the double jeopardy clause was violated. In this case the escape from prison was used as the predicate felony in the felony-murder prosecution. Hall's trial on the greater offense of felony-murder subsequent to his plea of guilty to escape from prison contravenes double jeopardy protections. To support a conviction for felony-murder the State was required to prove Hall guilty of escape from prison; a crime of which he had already been found guilty. See State v. Cooper, 13 N.J. Laws 361 (1833). The Fifth Amendment forbids successive prosecutions and cumulative punishment for a greater and lesser included offense regardless of the sequence in which they are tried. Brown v. Ohio, supra 432 U.S. at 169, 97 S.Ct. at 2227.

The double jeopardy prohibition protects persons from being subjected to the harassment of multiple trials and multiple convictions for the same offense. In Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), the Supreme Court stated:

[T]he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

In Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality opinion), the Supreme Court enunciated exceptions to the rule established in the Brown decision. In Jeffers the Supreme Court held that Jeffers' separate trials violated the double jeopardy clause. Jeffers was initially tried under 21 U.S.C. § 846 for conspiring to distribute heroin and cocaine. In the second trial Jeffers was tried and convicted under 21 U.S.C. § 848 for conducting a continuing criminal enterprise. The Court held that the § 846 conspiracy offense was a lesser included offense of the § 848 continuing criminal enterprise. Because § 848 required proof of every fact necessary to show a violation under § 846, the separate trials violated the well established double jeopardy rule stated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The Jeffers Court reiterated that "the sequences of the two trials for the greater and lesser offense is immaterial, and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the double jeopardy clause as the reverse order of the proceeding." 432 U.S. at 151, 97 S.Ct. at 2216.

After finding that the defendant had been placed in double jeopardy the Supreme Court asserted that Jeffers had waived his double jeopardy protection prior to trial, since Jeffers was solely responsible for the successive trials. In Jeffers the government had filed a motion to try the § 846 and the § 848 charges in one proceeding. The consolidation would have been proper under Fed. Rule Crim. Proc. 13. The defendant filed an objection to the consolidation. He successfully argued that the joinder would be improper since neither the parties nor the charges were the same.

The Court stated, that "... under these circumstances, we hold that this action deprived him of any right that he might have had against consecutive trials." 432 U.S. at 154, 97 S.Ct. at 2218. The Court in dicta asserted that "if the two charges had been tried in one proceeding, it appears the petitioner would have been entitled to a lesser included-offense-instruction ... If such an instruction had been denied on the ground that § 846 was not a lesser included offense of § 848, petitioner could have preserved his point by proper objection." Id.

The issue at bar is whether Hall affirmatively waived his double jeopardy claim. Hall voluntarily pleaded guilty to the escape charge, after the two offenses were properly consolidated, and then proceeded to trial on the felony-murder without raising the jeopardy issue.

In this case, Hall's plea of guilty to the escape charge effectively severed his once consolidated trial. A defendant may generally require the lesser and greater offenses be resolved in one proceeding, however, double jeopardy does not preclude him from electing to have them tried separately. Therefore, we find that Hall affirmatively waived his double jeopardy claim.

This view is strengthened by the fact that Hall did not timely object to the subsequent trial on the grounds of double jeopardy. The long established rule in Oklahoma is that protection from double jeopardy is a personal right which may be waived by the defendant's failure to assert the defense or make a timely objection. Johnson v. State, 611 P.2d 1137 (Ok. Cr. App. 1980); Smith v. State, 573 P.2d 1215 (Okl. Cr. App. 1978), cert. denied, 436 U.S. 908, 98 S.Ct. 2242, 56 L.Ed.2d 407; Voran v. State, 536 P.2d 1322 (Okl. Cr. App. 1975); Stockton v. State, 508 P.2d 663 (Okl. Cr. App. 1973); Ex Parte Kirk, 96 Okl.Cr.App. 272, 252 P.2d 1032 (1953); Daniels v. State, 55 Okl.Cr.App. 298, 29 P.2d 997 (1934); Ex Parte Zeligson, 47 Okl.Cr.App. 45, 287 P. 731 (1930); Jeter v. District Court of Tulsa County, 87 Okl. 3, 206 P. 831 (1922). See also U.S. v. Perez, 565 F.2d 1227 (2nd. Cir. 1977), (Construing Fed. Rules Crim. Proc. rule 12(b)(2), (f)).

II

The dispositive issue in this appeal is whether the State's failure to disclose exculpatory evidence denied the appellant a fair trial. Subsequent to the appellant's trial, it was discovered that the State had failed to disclose certain exculpatory evidence. On March 5, 1981, after his appeal had been perfected in this Court, we ordered the trial court to conduct a hearing on this issue. At the evidentiary hearing it was revealed that the State during its investigation had obtained evidence that a prime suspect in the case, Shelton Sealy, was acquainted with the victim, Albert Cox. ¹

Joe Kirkpatrick, a prison employee, testified that he had informed the district attorney prior to trial that there was an intense animosity between Sealy and Cox. He testified that on one occasion Cox had gassed Sealy. As a result of this incident, Sealy allegedly threatened to kill Cox even if he had to go to his house to do it. However, Sealy testified at trial that he was not acquainted with Cox and never had any trouble with him. The trial court ruled that the prosecution was aware, or should have been aware that Sealy's testimony was perjured. The State does not refute its knowledge of this evidence.

It is well established that the State's knowing use of perjured testimony violates one's due process right to a fair trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Due process demands that the State avoid soliciting perjured testimony, and imposes an affirmative duty upon the State to disclose false testimony which goes to the merits of the case or to the credibility of the witness. See Napue v. Illinois, supra, 360 U.S. at 269, 79 S.Ct. at 1177.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and later in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court delineated the prosecutor's obligation to provide the defendant with exculpatory evidence. In Brady the Court held that suppression by the State of evidence specifically requested by the defendant "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of ...