Hanson v. State

• Decision Date: 11 June 2003
• Docket Number: No. D-2001-717.,D-2001-717.
• Citation: 72 P.3d 40,2003 OK CR 12
• Parties: John Fitzgerald HANSON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

72 P.3d 40

2003 OK CR 12

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

No. D-2001-717.

Court of Criminal Appeals of Oklahoma.

June 11, 2003.

Jack E. Gordon, Jr., Claremore, OK, Attorney for Defendant at trial.

Sharon Ashe, Assistant District Attorney, Tulsa, OK, Attorney for the State at trial.

James H. Lockard, Deputy Division Chief Capital Direct Appeals Division, Jamie D. Pybas, Division Chief Direct Appeals Division, Oklahoma Indigent Defense System, Norman, OK, Attorneys for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

CHAPEL, Judge.

¶ 1 John Fitzgerald Hanson was tried by jury and convicted of Count I, First Degree Malice Murder in violation of 21 O.S.1991, § 701.7(A), and Count II, First Degree Felony Murder in violation of 21 O.S.1991, § 701.7(B), in the District Court of Tulsa County, Case No. CF-99-4583.¹ As to Count I, the jury found three aggravating circumstances: (1) Hanson was previously convicted of a felony involving the use or threat of force; (2) there existed a probability that Hanson would pose a continuing threat to society, and (3) that Hanson knowingly created a great risk of death to more than one person. As to Count II, the jury found two aggravating circumstances: (1) Hanson was previously convicted of a felony involving the use or threat of force; and (2) there existed a probability that Hanson would pose a continuing threat to society. In accordance with the jury's recommendation the Honorable Linda G. Morrissey sentenced Hanson to death (Count I) and life without the possibility of parole (Count II). Hanson appeals from these convictions and sentences. After thorough consideration of the briefs, exhibits, transcripts and record, we find that pervasive error in jury selection and the second stage requires us to remand Count I for resentencing.

¶ 2 Hanson and Victor Miller took Mary Agnes Bowles from the Promenade Mall in Tulsa sometime between 4:15 p.m. and 5:50 p.m. on August 31, 1999. They had already robbed two liquor stores, and wanted to use Bowles's car in another robbery. Hanson held Bowles down in the back seat while Miller drove to an isolated area near Owasso. He turned down a road leading to a dirt pit. The pit's owner, Mr. Thurman, was there loading a dump truck for a delivery. While speaking to his nephew, Jim Moseby, on his cell phone, Thurman said he saw a car circling through the pit. After this conversation, Miller shot Thurman four times with a chrome .380 revolver. Miller drove a short distance away. He stopped at an overgrown roadside. Hanson got out with Bowles and, using a 9mm semiautomatic pistol, shot her between four and six times as she lay on the ground. Before leaving the scene, they partially covered her with branches. Neighbors heard several shots coming from the pit area and saw an unfamiliar car drive by. They found Thurman lying near his dump truck at the entrance to the road. Thurman was taken to the hospital; he never regained consciousness and died on September 14. Bowles's decomposed body was found on September 7.

¶ 3 Hanson and Miller drove Bowles's car to the Oasis Motel. Hanson asked the price of a room, then left. He returned shortly, explained that his car wouldn't start, and asked to borrow tools. The desk clerk gave him a screwdriver and followed him out. The clerk saw Hanson and another black man working on Bowles's car. Eventually the two gave up and returned the screwdriver and Hanson rented a room. He filled out and signed the registration card, and showed the clerk his driver's license. The clerk never saw either man again, and the car remained parked in the motel lot. Hanson and Miller robbed a liquor store on September 3, and robbed a federal credit union on September 8. On September 9 Miller's wife made an anonymous phone call telling police that Hanson and Miller, the credit union robbers, were in the Muskogee Econolodge. Also on September 9, a patrol officer saw Bowles's car parked at the Oasis. The officer discovered Hanson had rented a room and left the car there. Law enforcement officials from various jurisdictions coordinated this information and served warrants on Miller and Hanson at the Econolodge. Miller came out immediately. Hanson stayed in the room until driven out by tear gas. While he was alone in the room Hanson hid the murder weapons and extra ammunition in the toilet tank. Hanson's fingerprint was found on the driver's seat belt latch in Bowles's car, and Miller's fingerprint was on the front passenger seat belt latch. Rashad Barnes testified that, a few days before his arrest, Hanson visited him. Hanson said they carjacked an old lady, described how Miller killed Thurman, and confessed to Bowles's murder.

ISSUES RELATING TO JURY SELECTION

¶ 4 Hanson raises several issues surrounding voir dire. Propositions VI and VII, concerning jurors' views on the death penalty, have merit and contribute to the accumulation of reversible error in this case.

¶ 5 Hanson's claims in Propositions IV and V do not require relief. In Proposition IV Hanson complains that, although his jury was allowed to take notes, the trial court failed to use the standard Oklahoma Uniform Jury Instructions (OUJI) on note-taking and the use of notes in deliberations.² Hanson neither requested the instructions nor failed to object to their omission. We encourage trial courts to give jurors the standard instructions where note-taking is allowed.³ However, the trial court's instructions, taken as a whole, fairly and accurately stated the applicable law, channeling juror's discretion in their use of notes.⁴ In Proposition V Hanson complains that the trial court abused its discretion in refusing to allow individual voir dire. Individual voir dire is appropriate where the record shows jurors were not candid in their responses about the death penalty, or that responses were tailored to avoid jury service.⁵ The record overall does not show the majority of potential jurors were less than candid in a response merely to avoid jury service; nor does it support Hanson's claim that jurors learned economic hardship would result in excusal from service. Hanson has not shown his right to fair and impartial jurors was affected by the decision to refuse individual voir dire.⁶ These propositions are denied.

¶ 6 In Proposition VI Hanson correctly claims he was denied his right to a full and fair examination of prospective jurors' views on automatic imposition of the death penalty for malice murder. The trial court granted Hanson's motion to exclude jurors who were in favor of the death penalty. However, the trial court repeatedly denied Hanson's requests to "life-qualify" the jury by asking whether jurors would automatically impose the death penalty for first degree murder. In Morgan v. Illinois,⁷ the United States Supreme Court held that a capital defendant must be permitted on voir dire to find out whether his prospective jurors believe that the death penalty should automatically be imposed upon conviction for first degree murder. The Supreme Court reasoned that a juror who will automatically impose a death sentence cannot in good faith follow the law and consider aggravating circumstances and mitigating evidence.⁸ This Court has repeatedly held that, if a defendant so requests, either he or the trial court must ask prospective jurors whether they would automatically impose a sentence of death;⁹ this Court reversed and remanded one capital case twice on this very issue.¹⁰

¶ 7 The State admits that, upon request, a defendant must be allowed to ask whether jurors would automatically impose the death penalty. However, the State argues this requirement was satisfied by the trial court's general question as to whether jurors could consider all three punishments, along with counsels' questions about jurors' views on the death penalty. Both the United States Supreme Court and this Court have rejected this argument.¹¹ As we found in Jones II,

The State conflates two very different lines of questioning. It is important that voir dire questions determine whether prospective jurors will consider all three punishments equally. However, asking that question will not satisfy the specific inquiry whether a juror would automatically impose a sentence of death.¹²

As the Supreme Court noted, "a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so."¹³ This is illustrated in this case by Juror Fulfaro, who said he could follow the law and consider all three punishments, but then said that only the death penalty was an adequate punishment for first degree murder.

¶ 8 Hanson's jury was able to impose a sentence of life without parole for felony murder. This does not answer the question whether any sitting juror would automatically have imposed death for malice murder. The record shows that at least one sitting juror indicated by word and gesture he would support such a conclusion. We have held that it is constitutionally unacceptable for a defendant to be sentenced by a jury without knowing whether it, or members of the prospective jury panel, would automatically impose a death sentence.¹⁴ Hanson was entitled to ask whether jurors would automatically impose death, and the trial court erred in denying him that right. In combination with other errors, this error requires remand for capital resentencing.

¶ 9 In Proposition VII Hanson argues that Juror Fulfaro should have been excused for cause. Juror Fulfaro stated he could follow the law and consider all three punishments for murder. When questioned by defense counsel, Fulfaro said he believed that defendants had their day in court but victims' rights were forgotten; said he believed in "an eye for an eye"; approved of the strict ...