Hawkins v. State

Decision Date28 December 1994
Docket NumberNo. F-86-441,F-86-441
Citation1994 OK CR 83,891 P.2d 586
PartiesDon Wilson HAWKINS, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Leamon Freeman, District Judge. Appellant was sentenced (1) to life imprisonment for each count of Kidnapping for Extortion and (2) to death for the crime of Murder in the First Degree. Judgment and Sentence is AFFIRMED
OPINION

LANE, Judge:

Don Wilson Hawkins, appellant, was tried by jury for the crimes of Murder in the First Degree (21 O.S.Supp.1982, § 701.7(B)), and Kidnapping for the Purpose of Extortion, two counts (21 O.S.1981, § 745(A)) in Oklahoma County District Court, Case No. CRF-85-6156. The jury returned a verdict of guilty on each count. For the kidnapping counts the jury imposed a sentence of life imprisonment; for the murder the jury set punishment at death. The trial court sentenced accordingly.

Twenty propositions of error are raised on appeal. These will be addressed according to the chronology in which they arose. This trial is not without error. However, none of the errors, singly or in concert, warrant reversal of judgment or modification of sentence. We affirm judgment and sentence.

On August 19, 1989, Hawkins set into motion his plan to kidnap a "rich woman" for ransom. He bought a set of handcuffs and six .38 caliber bullets from the Ace Pawn Shop in Oklahoma City. In the early evening he drove with Dale Shelton1 to the free standing postal station at Shepherd Mall and waited. Shelton served as a lookout. Hawkins let the first woman to stop at the postal station get away when mall security drove by. The next woman, Linda Thompson, stopped, bought stamps, and when she got back into her 1983 Toyota Tercel, Hawkins forced his way in behind her. He handcuffed her and drove to the "big house"--his girlfriend's house at 50th Street and Bryant. Thompson's two daughters, aged eighteen months and four years, were in the back seat. Shelton drove Hawkins' car back to the "big house".

Hawkins took Thompson upstairs and ordered everyone else to stay downstairs. Shirley Pitts, Hawkins' girlfriend, took care of the little girls. While upstairs for several hours, Hawkins and Thompson discussed who might pay a ransom. Thompson changed from her blue striped sun dress into Hawkins shorts and shirt.

Hawkins then chained Thompson by the ankle with a dog chain and padlock to the loft of a barn on the property. The daughters were confined to a bedroom in the house. Shelton came to the barn sometime that night. He unchained Thompson, raped her, demanded oral sex from her, then rechained her to the loft. After he left, Chris Lovell, Pitts' nephew raped Thompson while she was chained. Thompson asked him to take her girls to their baby sitter. After Lovell left, Hawkins brought Thompson to the house to see her daughters, then rechained her in the loft. Shelton again raped Thompson. Some time after dawn Hawkins again brought Thompson to the house. She changed back into her dress, and Hawkins dragged her out of the house as she cried, "goodbye", to her crying children. Hawkins, drove Shelton and Thompson in Thompson's car toward Arkansas where, Hawkins said, they were going to let her go. When they got to Seminole, Oklahoma, Hawkins drove up to Sportsman's Lake.

While Shelton stood look-out, Hawkins took Thompson to the edge of the lake, hog-tied her, and started back to the car. According to his statement to police, after realizing she was a witness, he pushed her into the water, watched the terror in her eyes, and held her under until she drowned.2 Hawkins and Shelton dragged the body into a ravine and covered it with brush.

Hawkins then drove them back to Oklahoma City. Along the way the two men threw out Thompson's shoes. They stopped to wash the car and wipe it clean of fingerprints. They parked the car, unlocked and with the key in the ignition, at a housing project in northeast Oklahoma City. A resident saw this and contacted the police the next day.

Meanwhile, Pitts and Lovell took the Thompson girls to the neighborhood of their sitter. Two neighborhood boys recognized the girls and knew where the sitter lived. Lovell told the boys to take the girls to the sitter, and then left with Pitts. The sitter contacted the Oklahoma City police who came and interviewed the neighborhood boys. The boys told them where Lovell lived. The police went to the "big house", arrested Pitts and Lovell, and found Thompson's purse in a crate by the house.

Hawkins and Shelton returned to the "big house" about this time, but saw the police cars and drove on to California. Two months later they were arrested in Sacramento. At the time he was arrested, Hawkins was in the process of stealing a car battery. He was armed with a sawed-off shotgun, phony identification, and stolen credit cards. Shelton was arrested at a nearby motel and also carried phony identification. Both men were transferred to San Diego to face other criminal charges there. Each man confessed in San Diego to the murder and kidnappings which are the subject of this case. By phone Shelton directed the Seminole County Sheriff to the location of Thompson's remains. The skeletal remains were still clad in the blue striped dress.

PRETRIAL ISSUES

Appellant asserts pre-trial publicity tainted the jury panel and the trial court erred by denying him a change of venue. While the granting or denial of a change of venue is left to the sound discretion of the trial court, that discretion is limited by the due process rights of the defendant. See Coates v. State, 773 P.2d 1281 (Okl.Cr.1989). Change of venue is proper when the influence of the news media, either in the community at large or in the courtroom itself pervade the proceedings, or when the entire circumstances surrounding the trial indicate the trial was fundamentally unfair. See, Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975) (pervades the proceedings); Allen v. State, 862 P.2d 487, 490 (Okl.Cr.1993) (fundamentally unfair); see also, Brown v. State, 743 P.2d 133, 136 (Okl.Cr.1987).

The jury panel seated in Appellant's case was comprised of three people who had not heard of the case prior to trial, and nine people who had heard of the case, but who had not formed an opinion of guilt. Extensive voir dire was conducted. Each juror who had heard of the case was examined individually in chambers. Each juror seated assured trial counsel and the trial judge that he or she would impartially decide the case on the evidence presented at trial. This is the hallmark of a fair jury panel. Hale v. State, 750 P.2d 130 (Okl.Cr.1988), cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988); Kiser v. State, 782 P.2d 405, 409 (Okl.Cr.1989). Neither the selection of the jury, nor the individual jurors themselves were tainted by the media or other circumstances of fundamental unfairness.

Appellant continues the venue argument claiming he was prejudiced by the release of his confession to the media by counsel for his co-defendant. The confession was aired on TV. The record does not indicate who released the tape, and we make no finding thereon. The trial court censured the release as an egregious ethical breech by both counsel and the television stations. We agree. We disagree with the appellant when he claims prejudice, however, for not one juror saw the confession on TV.

In his final challenge of venue, Appellant argues he was coerced into waiving venue in Seminole County. Waiver is not the issue. When a crime is committed in more than one county, as it was here, venue is proper in either county at the State's discretion. 22 O.S.1981, § 124.

Relying on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Appellant next contends the trial court denied him due process by denying his request for an investigator, or travel funds for his attorney to investigate the case. An indigent criminal defendant is entitled to any expert necessary for adequate defense upon a requisite showing of need. Salazar v. State, 852 P.2d 729 (Okl.Cr.1993); Castro v. State, 844 P.2d 159 (Okl.Cr.1992), cert. denied, 510 U.S. 844, 114 S.Ct. 135, 126 L.Ed.2d 98 (1993).

To warrant reversal on appeal, the appellant must show the lack of assistance resulted in prejudice. Salazar, Id. This appellant has failed to do. We find the trial court properly denied the request for an investigator or investigative funds. See, Munson v. State, 758 P.2d 324 (Okl.Cr.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1988).

The constitutionality of Title 22 O.S.1981, § 655, which requires co-defendants who are tried jointly to share in nine (9) peremptory challenges unless their defenses are inconsistent is next challenged. Appellant shared his peremptory challenges with co-defendant Dale Shelton. Appellant does not claim his defense was inconsistent with that of co-defendant Shelton; he challenges the statute generally on due process grounds. This argument has been soundly rejected by this Court, and we find no reason to revisit it now. See Bryson v. State, 876 P.2d 240, 250 (Okl.Cr.1994); Neill v. State, 827 P.2d 884, 887 (Okl.Cr.1992).

In a related argument Appellant asserts ...

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