Hammick v. State

• Decision Date: 12 September 2019
• Docket Number: Case No. F-2018-221
• Parties: Kenneth Merle HAMMICK, II, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

449 P.3d 1272

Kenneth Merle HAMMICK, II, Appellant,
v.
The STATE of Oklahoma, Appellee.

Case No. F-2018-221

Court of Criminal Appeals of Oklahoma.

FILED SEPTEMBER 12, 2019

APPEARANCES AT TRIAL TIMOTHY D. WANTLAND, ATTORNEY AT LAW, 200 S. LYNN RIGGS BLVD., CLAREMORE, OK 74017, COUNSEL FOR DEFENDANT

ZACHARY T. CABELL, ASSISTANT DISTRICT ATTORNEY, 200 S. LYNN RIGGS BLVD., CLAREMORE, OK 74017, COUNSEL FOR STATE

APPEARANCES ON APPEAL NICOLLETTE BRANDT, APPELLATE DEFENSE COUNSEL, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, KATHERINE R. MORELLI, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

ROWLAND, JUDGE:

449 P.3d 1274

¶1 Appellant Kenneth Merle Hammick, II appeals his Judgment and Sentence from the District Court of Rogers County, Case No. CF-2015-327, for Robbery with a Dangerous Weapon (Count 1), in violation of 21 O.S.2011, § 801 ; Burglary in the First Degree (Count 2), in violation of 21 O.S.2011, § 1431 ; and Larceny of an Automobile (Count 3), in violation of 21 O.S.2011, § 1720, each after former conviction of two or more felonies. The Honorable J. Dwayne Steidley, District Judge, presided over Hammick's jury trial and sentenced him, in accordance with the jury's verdict, to thirty-eight years imprisonment on Count 1, twenty years imprisonment on Count 2, and nine years imprisonment on Count 3.¹ Judge Steidley awarded credit for time served and further ordered the sentences to run concurrently. Hammick appeals raising the following issues:

(1) whether the district court erred when it refused to suppress his inculpatory statements to law enforcement;

(2) whether his conviction was based upon an impermissibly suggestive identification procedure; and

(3) whether the district court erred in admitting other crimes evidence under the res gestae exception.

¶2 We find relief is not required and affirm the Judgment and Sentence of the district court.

Facts

¶3 The evidence showed Hammick broke into a Claremore, Oklahoma home on May 10, 2015, and robbed its three occupants at gunpoint. He fled the scene by stealing the car of one of the victims. Two of the three victims identified Hammick as the perpetrator from a six-person photographic lineup within days after the crime. Knowing police would be on the lookout for the stolen car, Hammick abandoned it soon after the robbery. He attempted, without success, to steal another car, but nevertheless took a nine millimeter pistol from that car's console. The next day, a Claremore police officer responded to a trespassing call involving a suspicious man hiding in some bushes; he discovered Hammick there. After his arrest, Hammick denied any involvement in the home invasion robbery during his initial interview. He later expressed a desire for counsel. When investigators subsequently executed a search warrant for a DNA sample, it was Hammick who initiated conversation with them and ultimately made several incriminating statements. A month after that interview, he asked to speak to investigators again and this time made a full confession. He directed investigators to the gun he had pilfered and attempted, without success, to direct them to the clothing he was wearing during the robbery.

1. Admission of Inculpatory Statements

¶4 Hammick contends the district court's refusal to suppress his inculpatory statements from his latter two police interrogations was error because he had invoked his right to counsel.² He contends his inculpatory statements to police "were not given after a knowing and voluntary waiver of his right to an attorney." He preserved this claim for review. We review district court rulings on motions to suppress for an abuse of discretion. Terry v. State , 2014 OK CR 14, ¶ 6, 334 P.3d 953, 955. "We review the district court's legal conclusions de novo, and its factual findings for clear error, viewing the evidence in the light most favorable to the State." Id.

¶5 The district court held a Jackson v. Denno³ hearing to consider the admissibility of Hammick's confessions. Under Jackson-Denno , the district court must decide: 1)

449 P.3d 1275

whether relinquishment of Fifth Amendment rights was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception; and 2) whether the waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Runnels v. State , 2018 OK CR 27, ¶ 42, 426 P.3d 614, 624. Once a suspect invokes his Fifth Amendment rights, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Taylor v. State , 2018 OK CR 6, ¶ 10, 419 P.3d 265, 269 (quoting Edwards v. Arizona , 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). See also Underwood v. State , 2011 OK CR 12, ¶ 33, 252 P.3d 221, 238-39 : (holding defendant's statements were voluntary, despite prior request for counsel, because he initiated conversation with law enforcement).

¶6 The district court found Hammick's inculpatory statements were not obtained in violation of his right to counsel because he initiated the conversations with investigators on both occasions and knowingly waived his right to counsel each time. A suspect may make a clear invocation of the right to counsel when interrogation is initiated or he may waive the right provided he does so voluntarily, knowingly, and intelligently. See Montejo v. Louisiana , 556 U.S. 778, 786, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009). When a suspect, after invoking his right to counsel, chooses to speak with police without counsel present, the burden is on the State to show the suspect's change of mind was "voluntary and intelligent." Underwood , 2011 OK CR 12, ¶ 31, 252 P.3d at 238. Whether a suspect's statements to police were voluntary depends on an evaluation of all surrounding circumstances, including the characteristics of the accused and the details of the interrogation. Id . at ¶ 33, 252 P.3d at 238.

¶7 Hammick asserts his confession was induced by his understanding that cooperation would result in less jail time. Hammick's allegation of coercion is without merit. Both investigators testified they made no threats and offered no specific inducements to get Hammick to talk. Hammick was oriented in time and place and appeared capable of understanding his circumstances and rights. The investigators honored Hammick's request not to be interrogated in the absence of counsel until he reinitiated conversation with them. All three interviews were recorded and there was no evidence of coercion or specific inducements made by investigators in this case. Based on this record, we find no error in the admission of Hammick's inculpatory statements. This claim is denied.

2. Identification Procedure

¶8...