Hamilton v. State, F-93-1366

Citation1997 OK CR 14,937 P.2d 1001
Decision Date28 February 1997
Docket NumberNo. F-93-1366,F-93-1366
Parties1997 OK CR 14 Corey Duane HAMILTON Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

JOHNSON, Judge:

Corey Duane Hamilton, hereinafter referred to as Appellant, was tried and convicted by jury of the crimes of Robbery with a Firearm (Count I) and Murder in the First Degree, Malice Aforethought and Felony (Counts II--V) in Case No. CF-92-3584 in the District Court of Tulsa County before the Honorable Jay D. Dalton, District Judge. The jury found four aggravating circumstances as to each victim: (1) Appellant had knowingly created a great risk of death to more than one person; (2) that the murder was especially heinous, atrocious or cruel; (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) that Appellant would constitute a continuing threat to society. The trial judge sentenced Appellant in accordance with the jury's recommendation of 500 years imprisonment for Count I and death for Counts II--V. From these judgments and sentences, Appellant has perfected this appeal.

FACTS

On August 17, 1993, State's witness Gaylon Frazier discovered the bodies of four employees of Lee's Famous Recipe Chicken Restaurant, hereinafter "Lee's." They were found dead in the cooler of the restaurant. Dr. Distefano testified that all four died of close range gun shot wounds to the back of the head. The gun was recovered from a field near the apartment complex where Appellant lived. Co-defendant Donnie Daniels' blue Chevrolet automobile was found parked at the apartment complex where appellant lived. 1

Lisa Frazier, who resides behind Lee's, testified that she observed a black male drive a blue Chevrolet up and down 9th Street several times. He picked up another black male, wearing a distinctive shirt with a blue seven, who retrieved what appeared to be a shotgun from a ditch. She also observed the male with the blue seven shirt with what appeared to be a shotgun as he walked across the street under the lights. He then proceeded to walk up the wood embankments on the side of Lee's and behind the privacy fence at Lee's.

Another witness, John Andrew Waltrip, testified he saw three black males. The first two he saw standing in a field between a car lot and a vacant building. He described them as between 20 and 25 years of age. The first male, wearing all black clothes, went behind the building never to be seen again. The second male, wearing black shorts and a black top with a gold number seven on it, met up with a third male who was wearing a dark top and white "fleece" looking shorts. Waltrip further testified he saw the second male with a long gun to his side and a white bag in his hand. Both men got into a blue Chevrolet, which Waltrip has observed earlier going up and down the street several times.

Denicsha Gunter, Daniels' girlfriend, testified that Daniels was wearing blue cut-off shorts, blue jacket and a black t-shirt on the night in question. Mildred Elaine Mangrum testified that Appellant was wearing a blue Bugle Boy tank top and white shorts with black stripes on them on the night in question.

Daniels, the co-defendant, testified that during the evening hours of August 17, 1993, he, Appellant, Will and Johnson played cards at Gunter's home. Earlier in the day, Daniels and Johnson had obtained a .38 caliber pistol from a relative of Johnson's. They discussed robbing Lee's. Daniels was a former employee of Lee's and was familiar with the closing procedures of the restaurant and with the procedure for opening the restaurant's safe.

After discussing the robbery, the four men went back into Gunter's apartment and changed clothes. The men left at approximately 9:45 p.m., taking Daniels' car, so that they could be at Lee's before 10:00 p.m. when it closed. In addition to the .38 pistol, the men also had a shotgun. Appellant and Daniels knew that both Ted Kindley and Sandy Lara were working at Lee's that night and would recognize them. However, they did nothing to disguise their appearance.

As Appellant and Daniels entered the door of Lee's and were met by Kindley, Appellant pulled the gun and told Kindley to lock the doors, which he did. The other three Lee's employees, Lara, Gooch, and Williams, were told to go into the walk-in cooler. There, they were made to kneel down. Kindley was up front attempting to open the store safe. Will Hamilton, carrying the shotgun, was guarding the back door. After Appellant got the money from the safe, he placed Kindley in the cooler. Daniels walked out on the loading deck area and, shortly thereafter, heard shots from inside. Daniels walked away from the store and did not return. When the four men met a short time later, Appellant told them that he shot "Ted and Sandy and them."

Other facts will be discussed as pertinent to the relevant propositions of error.

I. PRETRIAL ISSUES
A.

Because Appellant's first and seventeenth propositions of error contain a similar issue, they will be considered together. In his first proposition of error, Appellant asserts that the trial court's application of ARTICLE II, § 20, OF THE OKLAHOMA CONSTITUTION2 in this case violated due process, equal protection, right to counsel and the ban on cruel and unusual punishment.

The record reveals that at 5:00 p.m. on November 10, 1993, Appellant was given oral and written notice that any or all of the co-defendants might be called as a witness. Thursday, November 11, 1993, was Veterans Day, a legal holiday. Trial commenced on Monday, November 15. Thus, Appellant argues that he was given one working day's notice that any or all co-defendants might testify. Defense counsel informed the trial court that when she learned from an article in the local Saturday newspaper that Daniels would actually testify, she prepared a motion for continuance which was argued on the morning of trial. It was at this time that she learned from the State that Daniels would actually testify. The trial court denied Appellant's motion for a continuance reasoning that while the State failed to comply with the Allen v. District Court, 803 P.2d 1164 (Okl.Cr.1990) order, it did comply with Article II, § 20. Additionally, the trial court noted that Daniels would be the State's last witness, thus giving Appellant opportunity to interview him.

However, Appellant argues that he was forced into trial without complete discovery of Daniels' testimony and without time to modify jury selection, cross-examination, 3 closing arguments, or his decision as to whether to testify, i.e. his whole trial strategy. With Daniels' testimony, the case against Appellant was changed from a totally circumstantial evidence case to a direct evidence case. In addition, defense counsel's prepared mitigation, which had been furnished to the State, had become a powerful tool for the State in its argument for the death penalty. See Prosecutorial Misconduct, No. 6, infra. Additionally, defense counsel was not given permission to interview Daniels until the third day of trial. Daniels testified on the fourth day.

Appellant concedes that his preparation for Daniels' testimony included a "two-hour video, a seventy (70) page transcription of his [Daniels'] statement to the police, and a forty (40) page transcription of the testimony at his [Daniels'] trial." We note that Appellant had nine (9) days from November 10, 1993, to prepare for Daniels' testimony. Defense counsel must have been aware that a co-defendant could testify due to a plea bargain. This often happens just before trial and the attorney must be prepared. Thus, we find Appellant had adequate time to prepare for Daniels' testimony. See Article II, § 20. We also find no abuse of discretion in the trial court's denial of a continuance. This proposition is denied.

In light of the foregoing, we find no merit in proposition seventeen wherein Appellant argues that the failure to give notice of a critical witness [Daniels] denied him the opportunity to investigate Daniels and to revise his trial strategy to meet the surprise testimony of Daniels.

B.

Appellant argues in proposition seven that because the Information failed to allege the essential elements of the underlying felony, Robbery with a Firearm, in Felony Murder Counts II--V, the trial court was without subject matter jurisdiction.

This issue was recently addressed by this Court in Parker v. State, 917 P.2d 980 (Okl.Cr.1996), where we held that "any failure to allege facts constituting the offense raises due process questions but does not affect the trial court's jurisdiction." Id. at 985. We further held that "a trial court's jurisdiction is triggered by the filing of an Information alleging the commission of a public offense with appropriate venue." Id. Thus, a due process violation due to insufficiency of the Information does not necessarily mean that jurisdiction was not conferred. In the instant case, the trial court did have jurisdiction. This proposition is without merit.

II. FIRST STAGE ISSUES
A.

In his fourth proposition of error, Appellant claims that the trial court committed reversible error when, over his objection, flight instructions were given. Appellant argues that this Court's holding in Rivers v. State, 889 P.2d 288 (Okl.Cr.1994) making our holding in Mitchell v. State, 876 P.2d 682 (Okl.Cr.1993) prospective only is erroneous. Appellant reasons that this Court's finding in Mitchell that the flight instruction in question assumes the defendant committed the crime, in...

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