Hanson v. State

• Decision Date: 13 April 2009
• Docket Number: No. D-2006-126.,D-2006-126.
• Citation: 206 P.3d 1020,2009 OK CR 13
• Parties: John Fitzgerald HANSON, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

206 P.3d 1020

2009 OK CR 13

John Fitzgerald HANSON, Appellant v. The STATE of Oklahoma, Appellee.

No. D-2006-126.

Court of Criminal Appeals of Oklahoma.

April 13, 2009.

An Appeal from the District Court of Tulsa County; the Honorable Caroline E. Wall, District Judge.

¶ 0 JOHN FITZGERALD HANSON, Appellant, was tried by jury and convicted of two counts of First Degree Murder in the District Court of Tulsa County, Case No. CF-99-4583. His Judgment and Sentence on Count 2 and his conviction on Count 1 were affirmed. His death sentence on Count 1 was vacated and the matter remanded for resentencing. The Honorable Caroline E. Wall, District Judge presided at Hanson's resentencing trial and sentenced him to death in accordance with the jury's verdict. Hanson perfected this appeal. Judgment and Sentence is AFFIRMED.

Jack E. Gordon, Jr., Attorney at Law, Claremore, OK, Steven M. Hightower, Attorney at Law, Tulsa, OK, attorneys for defendant at trial.

Doug E. Drummond, William J. Musseman, Assistant District Attorneys, Tulsa County, Tulsa, OK, attorneys for the State at trial.

Jamie D. Pybas, Kathleen M. Smith, Capital Direct Appeals Division, Oklahoma Indigent, Defense System, Norman, OK, attorneys for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorneys General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

A. JOHNSON, Vice-Presiding Judge.

¶ 1 Appellant John Fitzgerald Hanson appeals his sentence of death for the murder of Mary Bowles. Hanson and his co-defendant Victor Miller were originally charged in the District Court of Tulsa County, Case No. CF-99-4583, with two counts of first degree murder for the deaths of Mary Bowles (Count 1) and Jerald Thurman (Count 2).¹ Their cases were severed for trial and a jury convicted Hanson of First Degree Malice Aforethought Murder for Bowles's death in violation of 21 O.S.Supp.1998, § 701.7(A) (Count 1), and First Degree Felony Murder for Thurman's death in violation of 21 O.S.Supp.1998, § 701.7(B) (Count 2).² The jury sentenced Hanson to death for Bowles's murder in Count 1 and fixed punishment of life imprisonment without the possibility of parole for Thurman's murder in Count 2.³ Judgment and Sentence were imposed by the district court in accordance with the jury's verdict and Hanson appealed. We affirmed both Hanson's conviction and sentence for Thurman's murder. We affirmed his conviction for Bowles's murder, but vacated his death sentence and remanded the matter for a new sentencing proceeding in Hanson v. State, 2003 OK CR 12, 72 P.3d 40. Hanson's resentencing jury trial was held January 9-24, 2006, before the Honorable Caroline E. Wall. That jury found three aggravating circumstances and he was again sentenced to death for Bowles's murder.⁴ We now affirm Hanson's death sentence.

I. FACTS

¶ 2 Hanson and Miller kidnapped Mary Bowles from the Promenade Mall in Tulsa in the late afternoon of August 31, 1999. They drove her in her car to an isolated area around a dirt pit near Owasso. Jerald Thurman, the pit's owner, was there loading a dump truck for a delivery. Thurman was talking to his nephew on a cell phone when he saw the car circling through the pit. Moments later, with Hanson and Mary Bowles still in the car, Miller shot Thurman four times with a .38 revolver. Miller moved the car a short distance from the shooting, stopped, and told Hanson he knew what he had to do. Thereupon, Hanson took Bowles out of the car and, as she lay in a roadside ditch, shot her multiple times with his 9 mm semiautomatic pistol. The two men covered her body with branches and fled. Neighbors across the street from the dirt pit heard gunshots and saw an unfamiliar car leaving the pit area. Investigating, they found Thurman lying near his dump truck at the roadway entrance to the pit. He was taken to the hospital, but died two weeks later without regaining consciousness. Bowles's decomposed body was found in the roadside ditch on September 7.

¶ 3 Hanson and Miller abandoned Bowles's car at the Oasis Motel a few miles away. The car was not discovered there until September 9. Police lifted Hanson's and Miller's fingerprints from the seatbelt buckles and discovered that Hanson had rented a room there shortly after the murders. The motel clerk did not see Hanson or his companion after Hanson filled out the registration card on August 31st.

¶ 4 On September 3, 1999, Hanson and Miller robbed the Dreamland Video Store. Hanson tied up a customer in a backroom, put a gun to his head and took his wallet.⁵ On September 8, the pair robbed the Tulsa Federal Employees Credit Union.

¶ 5 The crime spree came to an end when, on September 9, Miller's wife made an anonymous phone call telling police that Hanson and Miller, the credit union robbers, were at the Muskogee Econolodge. Law enforcement officials from various jurisdictions coordinated this information and arrested Miller and Hanson there. Miller came out immediately; Hanson stayed in the room until driven out by tear gas. While alone in the room Hanson hid the murder weapons in the toilet tank.

¶ 6 Hanson's former co-worker, Rashad Barnes, testified that Hanson had stopped by his home a few days before that arrest in Muskogee and confessed that he and Miller "carjacked" an old lady and that he (Hanson) had killed her.⁶

II. CONFRONTATION CLAUSE

¶ 7 Hanson contends admission of the late Rashad Barnes's prior recorded testimony from his original trial violated his constitutional right to be confronted with the witnesses against him. He argues this testimonial hearsay should have been excluded from his resentencing trial because he did not have a full and fair opportunity to cross-examine Barnes about impeachment evidence that came to light only after his original trial.

¶ 8 A criminal defendant has a fundamental constitutional right to be confronted with the witnesses against him. U.S. Const. amend. VI; Okla. Const. art. 2, § 20. We review a district court's evidentiary rulings for an abuse of discretion; the determination of whether admission of hearsay evidence violates the Confrontation Clause, however, is a question of law we review de novo. See Pavatt v. State, 2007 OK CR 19, ¶ 56, 159 P.3d 272, 290, cert. denied, ___ U.S. ___, 128 S.Ct. 1229, 170 L.Ed.2d 62 (2008); Thrasher v. State, 2006 OK CR 15, ¶ 8, 134 P.3d 846, 849. That review is conducted according to the rule promulgated by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 9 Testimony from a former trial is the kind of "testimonial hearsay" admissible under Crawford when two fundamental Sixth Amendment conditions are met: (1) the witness must be unavailable, and (2) the defendant must have had a prior opportunity to cross examine the witness.⁷ Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. Hanson does not contest that Barnes was unavailable at his resentencing trial; nor does he contend that he was unable to cross-examine Barnes to challenge Barnes's testimony inculpating him in the murders of Jerald Thurman and Mary Bowles with evidence available at the time of his first trial. He argues instead that his prior opportunity to examine Barnes was constitutionally inadequate because new impeachment evidence was discovered after the first trial. The new impeachment evidence consisted of: 1) a statement made by Hanson's co-defendant, Victor Miller, to a third-party—a fellow inmate—that he himself killed a woman;⁸ and 2) Miller's testimony at his own trial that it was Barnes and Hanson who committed the murders. Barnes died before defense counsel could question him about this new evidence to discredit him. Therefore, Hanson maintains Barnes's unavailability at his re-sentencing trial created an insurmountable constitutional impediment to admission of Barnes's prior testimony. We disagree.

¶ 10 Hanson cross-examined Barnes at his original trial and exposed the weaknesses in his testimony. The evidence that Miller had told another inmate that he killed the woman himself was presented at Hanson's resentencing trial through the testimony of Detective Michael Nance.⁹ Miller's statement taking responsibility for shooting a woman was admitted as a statement against penal interest and was offered to show that Hanson was not the triggerman in Bowles's murder. Hanson's resentencing jury had the evidence of Miller's purported admission to the inmate and the circumstances surrounding that statement to consider and weigh against Barnes's testimony about Hanson's alleged confession to him.¹⁰ We cannot find under these circumstances that the discovery of Miller's statement rendered Hanson's prior opportunity to cross-examine Barnes constitutionally inadequate or that the trial court erred in admitting Barnes's testimony via transcript under Crawford.

¶ 11 Hanson never alleged at trial that his prior opportunity to cross-examine Barnes at the first trial was inadequate because of Miller's subsequent trial testimony implicating Barnes. In fact, defense counsel told the trial court specifically that the defense had not developed any other impeachment evidence except Miller's alleged confession to another inmate.¹¹ Because Hanson failed to object to the admission of Barnes's testimony on this basis, we review only for plain error and find none. See Malone v. State, 2007 OK CR 34, ¶ 84, 168 P.3d 185, 218.

¶ 12 There were sound reasons to shield Hanson's jury from evidence of Miller's trial testimony, including: 1) that Miller's trial testimony inculpated Hanson; 2) that Miller's trial testimony was inconsistent with his later admission regarding the murder of Bowles; and 3) that Miller's testimony exculpating himself and implicating Barnes was refuted by objective facts.¹² On this record, we cannot find that Hanson's opportunity to cross-examine Barnes at his first trial was inadequate. For this reason, we find that the admission of Barnes's testimony was in compliance...