Hammon v. State

• Decision Date: 30 June 1995
• Docket Number: No. F-91-432,F-91-432
• Citation: 1995 OK CR 33,898 P.2d 1287
• Parties: Richard Eugene HAMMON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1287

898 P.2d 1287

Richard Eugene HAMMON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-91-432.

Court of Criminal Appeals of Oklahoma.

June 30, 1995.

Rehearing Denied Aug. 1, 1995.

An Appeal from the District Court in Okmulgee County, Anne Moroney, District Judge.

Richard Eugene Hammon, Appellant, was tried by jury in the District Court of Okmulgee County, Case No. CRF-90-144, before the Honorable Anne Moroney, District Judge. Hammon was convicted of Murder in the first degree, Possession of a Stolen Vehicle, After Former Conviction of Two or More Felonies, Knowingly Concealing Stolen Property, After Former Conviction of Two or More Felonies, Using a Weapon in the Commission of a Crime, After Former Conviction of Two or More Felonies, Possession of a Firearm After Former Conviction of a Felony and Feloniously Pointing a Weapon, After Former Conviction of Two or More Felonies. The jury recommended death for Murder in the first degree, twenty (20) years imprisonment for possession of a stolen vehicle, twenty (20) years imprisonment for knowingly concealing stolen property, one hundred (100) years imprisonment for using a weapon in the commission of a crime, one hundred (100) years imprisonment for possession of a firearm after former conviction of a felony and one hundred (100) years imprisonment for feloniously pointing a weapon. The trial court sentenced Hammon accordingly. From this Judgment and Sentence, he appeals. We AFFIRM in part, REVERSE in part and REMAND this case to the District Court to hold a new sentencing hearing.

Duane A. Woodliff, Henryetta, for appellant at trial.

Thomas C. Giulioli, Gregory Stidham, O.R. Barris, III, Okmulgee, for State at trial.

William H. Luker, Deputy Appellate Indigent Defender, Norman, for appellant on appeal.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for appellee on appeal.

OPINION

STRUBHAR, Judge:

Richard Eugene Hammon, Appellant, was tried by jury in the District Court of Okmulgee County, Case No. CRF-90-144, before the Honorable Anne Moroney, District Judge. ¹ Hammon was convicted of Murder in the first degree (21 O.S.Supp.1989, § 701.7(B)), Possession of a Stolen Vehicle, After Former Conviction of Two or More Felonies (47 O.S.1981, § 4-103), Knowingly Concealing Stolen Property, After Former Conviction of Two or More Felonies (21 O.S.1981, § 1713), Using a Weapon in the Commission of a Crime, After Former Conviction of Two or More Felonies (21 O.S.Supp.1982, § 1287), Possession of a Firearm After Former Conviction of a Felony (21 O.S.Supp.1989 § 1283) and Feloniously Pointing a Weapon, After Former Conviction of Two or More Felonies (21 O.S.1981, § 1289.16). The jury recommended death for murder in the first degree after finding the existence of four aggravating circumstances ², twenty (20) years imprisonment for possession of a stolen vehicle, twenty (20) years imprisonment for knowingly concealing stolen property, one hundred (100) years imprisonment for using a weapon in the commission of a crime, one hundred (100) years imprisonment for possession of a firearm after former conviction of a felony and one hundred (100) years imprisonment for feloniously pointing a weapon. The trial court sentenced Hammon accordingly. From this Judgment and Sentence, he appeals. We affirm in part, reverse in part and remand this case to the district court to hold a new sentencing hearing.

FACTS

On June 28, 1990 Hammon and co-defendant Jones entered Truck 'N Things, an automotive accessory and parts store in Okmulgee, Oklahoma owned by Eugene Slape. Jones approached Slape at the front counter seemingly to purchase merchandise. As Slape rang up the sale and the cash register drawer opened, Jones robbed him. Jones claimed Slape appeared to be reaching for a gun so he shot him three times.

While Jones was confronting Slape at the front counter, Hammon ran to the back room where he found Bradley Slape, Eugene Slape's son, tinting windows on a Dodge pickup. Hammon told Bradley Slape, "I said this is a fucking holdup." Bradley Slape jumped in the pickup seat and begged Hammon not to shoot. Hammon pointed his gun at Bradley Slape's head and then began to run from the room. Bradley Slape raised his head to see where Hammon was and Hammon stopped running and again pointed his gun at Bradley Slape's head.

When Bradley Slape heard the front door close, he went to check on his father and found him lying on the floor staring at the ceiling. Bradley Slape contacted the police and tried to assist his father. The police arrived shortly thereafter and resuscitation measures proved unsuccessful.

Bradley Slape told Detective Travis Tolar that he knew the man who ran into the back room and pointed a gun at his head. He advised he did not know his name, but could identify him from a high school yearbook. Detective Tolar obtained an Okmulgee High School yearbook and Bradley Slape identified Hammon as the man who pointed a gun at his head.

As Detective Tolar was leaving Truck 'N Things he received a tip from an informant that Hammon was "staying at the Projects." Detective Tolar and several other officers proceeded to the "Projects" to apartment 603-A. Detective Tolar knocked on the door of 603-A and Hammon and Jones were arrested without incident.

After obtaining consent to search from Cassandra Jones, the police found merchandise from Truck 'N Things in the apartment. They also found $59.00 hidden under a mattress and $75.00 in a purse. Jackie Alexander, also present during the search, testified that when Hammon and Jones arrived at the apartment at 11:30 a.m., they were carrying a box and some car spinners. ³ Shortly after arriving at the apartment, Hammon asked Alexander to take his black bag containing two guns to her "mama's house". Alexander took the bag to her friend Charlotte Beard's apartment instead and hid it in a closet. Charlotte Beard consented to a search of her apartment where the police seized the black bag containing two .22 caliber weapons, one with three shots fired.

Both Hammon and Jones confessed to their participation in the robbery/homicide. Both confessions were admitted in their joint trial. Neither Hammon nor Jones testified nor put on evidence in first stage.

PRE-TRIAL ISSUES

I. SEVERANCE

In his second and third propositions of error, Hammon argues he was prejudiced by a joint trial with his co-defendant, Benny Jones. Hammon claims severance was required to avoid the extreme prejudice he suffered by the introduction of Jones' redacted confession. Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). He contends the introduction of Jones' incriminating statements violated his right to confront witnesses against him and that the statements constituted inadmissible hearsay. The State argues severance was not required because the defenses of Hammon and Jones were not mutually antagonistic.

This Court has consistently held that the decision to grant or deny severance is left to the sound discretion of the trial court. Neill v. State, 827 P.2d 884, 886 (Okl.Cr.1992). Absent an abuse of discretion resulting in prejudice to the accused, the decision of the trial court will not be disturbed on appeal. Id.; Cooks v. State, 699 P.2d 653, 658 (Okl.Cr.1985), cert. denied, 474 U.S. 935, 106 S.Ct. 268, 88 L.Ed.2d 275 (1985); Menefee v. State, 640 P.2d 1381, 1383 (Okl.Cr.1982).

We have consistently held severance is required if defenses are mutually antagonistic. Neill, 827 P.2d at 888. Defenses are mutually antagonistic where each defendant attempts to exculpate himself and inculpate his co-defendant. Neill, 827 P.2d at 887; VanWoundenberg v. State, 720 P.2d 328, 331 (Okl.Cr.1986), cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986). An attempt to cast blame on one's co-defendant is not in itself a sufficient reason to require separate trials. Neill, 827 P.2d at 886; Fox v. State, 779 P.2d 562, 567-68 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990); Master v. State, 702 P.2d 375, 378 (Okl.Cr.1985). See also United States v. Calabrese, 645 F.2d 1379, 1384 (10th Cir.1981), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981). Each defendant must blame the other in an attempt to exonerate himself. Therefore, a showing that defenses conflict is not sufficient to show the requisite prejudice necessary for judicial severance. Neill, 827 P.2d at 886-87; Vowell v. State, 728 P.2d 854, 857 (Okl.Cr.1986).

The record shows the prosecution introduced both Hammon's and Jones' statements through Agent Page detailing their involvement in the Slape homicide and that neither Hammon nor Jones took the witness stand nor presented any witnesses or evidence in their own behalf during the first stage of trial. Hammon and Jones each relied solely on cross-examination of prosecution witnesses to show they were less culpable than the other. Utilizing this trial strategy, Jones' attorney was able to introduce the entirety of Jones' statement which inculpated Hammon.

The record, viewed in its entirety, clearly demonstrates that Hammon's and Jones' defenses were not antagonistic. In Hammon's statement he admitted planning to rob Truck 'N Things. He claimed he went to the back of the store where an employee was working on a pickup, pointed his gun at the employee and ordered him into the pickup. He returned to the front of the store and grabbed a box of car speakers and some car spinners. This is consistent with and not antagonistic to Jones' confession. Jones said he went into Truck 'N Things and approached the front counter as if he were going to purchase some merchandise. Jones allowed Slape to ring up the sale and when the cash register drawer opened, he robbed him. Jones claimed Slape went for a gun so he shot him three times. The only inconsistency between Hammon's and Jones' statements related to their participation in an earlier robbery/shooting incident...