Hogan v. State, No. D-2003-610.

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
Writing for the CourtJohnson
Citation139 P.3d 907,2006 OK CR 19
PartiesKenneth Eugene HOGAN, Appellant v. STATE of Oklahoma, Appellee.
Docket NumberNo. D-2003-610.
Decision Date15 May 2006
139 P.3d 907
2006 OK CR 19
Kenneth Eugene HOGAN, Appellant
v.
STATE of Oklahoma, Appellee.
No. D-2003-610.
Court of Criminal Appeals of Oklahoma.
May 15, 2006.
Order Granting Rehearing and Denying Recall of Mandate June 28, 2006.

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An Appeal from the District Court of Oklahoma County; the Honorable Tammy Bass-Jones, District Judge.

KENNETH EUGENE HOGAN, Appellant, was tried by jury and convicted of First Degree Murder in the District Court of Oklahoma County, Case No. CRF-88-646. The Honorable Tammy Bass-Jones, District Judge presided and sentenced Hogan to death in accordance with the jury's verdict. Hogan perfected this appeal. Judgment and Sentence is AFFIRMED.

Catherine Hammarsten, Anthony McKesson, Assistant Public Defenders, Oklahoma City, OK, attorneys for defendant at trial.

Sandra Elliott, Suzanne Gump, Assistant District Attorneys, Oklahoma City, OK, attorneys for the State on trial.

Carolyn L. Merritt, Assistant Public Defender, Oklahoma City, OK, attorneys for appellant on appeal.

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W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer J. Dickson, Preston Saul Draper, Assistant Attorneys General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

JOHNSON, Judge.


¶ 1 Kenneth Eugene Hogan, Appellant, was tried by jury in the District Court of Oklahoma County, Case No. CRF-88-646, and convicted of First Degree Murder. The jury fixed Hogan's punishment at death and the trial court sentenced Hogan accordingly. Hogan appealed his Judgment and Sentence to this Court and we affirmed. Hogan v. State, 1994 OK CR 41, 877 P.2d 1157.1 The United States Supreme Court denied Hogan's petition for certiorari, Hogan v. Oklahoma, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995), and we denied Hogan's application for post-conviction relief, Hogan v. State, Case No. PCD-95-1337 (Dec. 19, 1996) (not for publication).

¶ 2 Hogan thereafter sought federal habeas corpus review in the United States District Court for the Western District of Oklahoma. The district court denied relief and Hogan appealed. The Tenth Circuit reversed and remanded the matter for a new trial, finding that Hogan's due process rights were violated by the trial court's refusal to instruct the jury on first degree manslaughter. Hogan v. Gibson, 197 F.3d 1297, 1312 (10th Cir.1999). Hogan's case was retried March 24 through April 4, 2003 before the Honorable Tammy Bass-Jones. The jury convicted Hogan of First Degree Murder and fixed punishment at death after finding the murder was especially heinous, atrocious, or cruel. The trial court sentenced Hogan to death and he appeals.

I. FACTS

¶ 3 Kenneth Hogan and Lisa Stanley had known each other well for several years before Hogan killed her on January 28, 1988 during an afternoon visit to her apartment. She had taken care of his children; he had helped her with schoolwork. Even after her marriage to George Stanley he visited her often in her apartment. There was speculation at trial that their relationship was a romantic one, but no evidence of intimacy. Hogan said he had thought of her as a sister.

¶ 4 George Stanley testified that the morning of January 28 had been an ordinary one for the couple. He and Lisa had sorted laundry, eaten lunch, and smoked a pipe-full of marijuana before he left for work before noon. When he returned home that evening, he found his apartment in a shambles and his wife's body on the floor of the living room.

¶ 5 Lisa Stanley had been stabbed 25 times with a large knife. She suffered wounds to her head, neck, chest, back, and throat. Any one of several wounds would have caused her death quickly. Bloodstain pattern analysis showed the stabbing had begun in the kitchen, the victim had been upright and moving for a period of time during the attack, and the deepest wounds had been inflicted in the living room where the body was found.

¶ 6 Within a week, Hogan confessed during an interview with Oklahoma City Police Department Detective Bob Horn that he had killed Lisa Stanley. The State introduced a tape recording of that confession and played it for the jury. Later, the defense introduced a transcription of the same recording. Hogan told Detective Horn that on January 28th he lied to his wife saying he was going to find work, but instead had gone to Lisa's apartment to help her with a book report for school. They smoked "some stuff," got high and "smoked some more." Trouble began when Lisa insisted he steal a Pioneer stereo for her. He refused and they argued.

¶ 7 According to his statement, the trouble escalated when Hogan, angry, prepared to leave. Lisa told him the neighbors could hear through the walls and threatened to scream that he was raping her. She locked herself in the bathroom. He kicked the door in and threatened to tell her mother and her husband secrets about certain incidents in

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her past. She went to the kitchen, returning with a butcher knife which she "pushed" at him. He grabbed the blade while she pulled the knife back cutting his hand. Hogan told the detective he "just knew that she was gonna tell the Police that I'd tried to rape her,. . . ."

¶ 8 The interview continued:

HORN: What'd you do, KEN?

HOGAN: I killed her.

HORN: For the purposes of this report KEN tell me . . . tell me what happened.

HOGAN: It hurts, too much . . .

HORN: How did you kill her?

HOGAN: With the knife she cut me with and it wasn't . . . it was like I wasn't even there . . . just somebody else . . . it wasn't even me . . .

HORN: What were they doing . . . what's this person doing KEN?

HOGAN: It was stabbing her and I couldn't stop him . . . that's right . . . I just went over to be friends, I didn't come over there to do any harm and now I've got to pay . . . it's not fair.

¶ 9 After the stabbing Hogan remained in the apartment and spent some time arranging things to look as if someone else had been "fighting" with Lisa. He tipped over the television, emptied the contents of her purse out "to make it look like someone was looking for stuff" and took the bathroom rug, stained with his blood, away to be burned.

¶ 10 His decision to confess was not immediate. There was testimony that after he left the apartment, Hogan drove to an emergency room for treatment of his cut hand. There he gave several stories about the cause of his injury. Later he asked his wife to tell the police he had been home and had injured himself in the garage. She testified to that conversation.

¶ 11 At trial, there was no dispute that Ken Hogan had killed Lisa Stanley. The salient question for the jury during first stage was whether Hogan had acted with the deliberate intent to take away her life or in a heat of passion.

1. JURY SELECTION ISSUES
A.

¶ 12 In Proposition VII, Hogan claims several rulings made by the trial court during jury selection denied him his right to a fair and impartial jury. First, he claims that the trial court erred in refusing to allow defense counsel to inquire of a prospective juror whether she could consider other forms of homicide supported by the evidence. Hogan maintains the purpose of counsel's question was to determine whether prospective jurors could consider his heat of passion defense. Without this information, he contends, defense counsel could neither ascertain grounds to dismiss a prospective juror for cause, nor intelligently exercise peremptory challenges. We disagree.

¶ 13 The manner and extent of voir dire questioning is discretionary with the trial court. Its rulings will not be disturbed on appeal unless the court's decision was clearly erroneous or manifestly unreasonable. Lott v. State, 2004 OK CR 27, ¶ 96, 98 P.3d 318, 344; Black v. State, 2001 OK CR 5, ¶ 15, 21 P.3d 1047, 1057. To facilitate jury selection, the trial court may restrict questions that are repetitive, irrelevant or in regard to legal issues upon which the trial court will instruct the jury. Black, 2001 OK CR 5, ¶ 15, 21 P.3d at 1057. "No abuse of discretion will be found so long as the voir dire questioning is broad enough to afford the defendant a jury free of outside influence, bias or personal interest." Id.

¶ 14 This Court has upheld trial courts who restrict defense theory questions posed to prospective jurors when the questions seek to test prospective jurors' willingness to accept the accused's theory of defense rather than to test their impartiality. Black, 2001 OK CR 5, ¶ 19, 21 P.3d at 1058; Jackson v. State, 1998 OK CR 39, ¶ 12, 964 P.2d 875, 883. Here defense counsel asked the prospective juror "[i]f the Court . . . were to give you instructions that encompass homicides that are not intentional homicides, would you be willing to consider those instructions?" The trial court sustained the State's objection.

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¶ 15 The question posed here is somewhat different from the questions condemned in Black and those disallowed in Jackson. But as the Jackson court stated, "[w]e are not interested in whether or not a certain question was allowed to be asked, but rather whether the defendant was allowed sufficient voir dire to determine if there were grounds to challenge a particular juror for cause and to intelligently exercise his preemptory (sic) challenges." Jackson, 1998 OK CR 39, ¶ 11, 964 P.2d at 883. Defense counsel here was permitted to ask prospective jurors whether they believed that everyone who kills someone does so intentionally. Defense counsel was allowed to question prospective jurors about whether they could consider all the court's instructions regarding the evidence of intent, and to ask questions testing whether the jurors would listen to both sides of the case and consider all the evidence before rendering a verdict. The questioning here was...

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153 practice notes
  • Jones v. Workman, Case No. CIV–09–1172–W.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • April 7, 2015
    ...is plain or obvious; and 3) affects a defendant's substantial rights (i.e., affects the outcome of the proceeding). See Hogan v. State, 139 P.3d 907, 923 (Okla.Crim.App.2006) ; Simpson v. State, 876 P.2d at 698 ; 20 Okla. Stat. § 3001.1. If those elements are met, the court will correct the......
  • Bingley v. Whitten, Case No. CIV 16-439-RAW-KEW
    • United States
    • United States District Courts. 10th Circuit. Eastern District of Oklahoma
    • March 19, 2020
    ...he now raises on appeal waives review for all but plain error."). We review his claim pursuant to the test set forth in Hogan v. State, 139 P.3d 907 (Okla. Crim. App. 2006).To be entitled to relief under the plain error doctrine, [an appellant] must prove: 1) the existence of an actual erro......
  • Racher v. Westlake Nursing Home Ltd., No. 16-6011.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 28, 2017
    ...second stage," id., ¶ 32 n.11, 139 P.3d at 906, a trial court errs as a matter of law if it precludes the arguments entirely, id., ¶ 34, 139 P.3d at 907. The parties have a "statutory right to present argument on the fact question as to the amount of punitive damages," so this argument must......
  • Jones v. Trammell, Case No. CIV-07-1290-D
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • May 22, 2013
    ...claims have been repeatedly considered and rejected by this Court. Harris, 2007 OK CR 32 at ¶ 19; Hogan v. State, 2006 OK CR 19, ¶ 84, 139 P.3d 907, 935; Rojem v. State, 2006 OKCR 7, ¶¶ 59-60, 66-67, 130 P.3d 287, 299, 300; Matthews v. State, 2002 OK CR 16, ¶ 56, 45 P.3d 907, 924. Attemptin......
  • Request a trial to view additional results
153 cases
  • Jones v. Workman, Case No. CIV–09–1172–W.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • April 7, 2015
    ...is plain or obvious; and 3) affects a defendant's substantial rights (i.e., affects the outcome of the proceeding). See Hogan v. State, 139 P.3d 907, 923 (Okla.Crim.App.2006) ; Simpson v. State, 876 P.2d at 698 ; 20 Okla. Stat. § 3001.1. If those elements are met, the court will correct the......
  • Bingley v. Whitten, Case No. CIV 16-439-RAW-KEW
    • United States
    • United States District Courts. 10th Circuit. Eastern District of Oklahoma
    • March 19, 2020
    ...he now raises on appeal waives review for all but plain error."). We review his claim pursuant to the test set forth in Hogan v. State, 139 P.3d 907 (Okla. Crim. App. 2006).To be entitled to relief under the plain error doctrine, [an appellant] must prove: 1) the existence of an actual erro......
  • Racher v. Westlake Nursing Home Ltd., No. 16-6011.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 28, 2017
    ...second stage," id., ¶ 32 n.11, 139 P.3d at 906, a trial court errs as a matter of law if it precludes the arguments entirely, id., ¶ 34, 139 P.3d at 907. The parties have a "statutory right to present argument on the fact question as to the amount of punitive damages," so this argument must......
  • Jones v. Trammell, Case No. CIV-07-1290-D
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • May 22, 2013
    ...claims have been repeatedly considered and rejected by this Court. Harris, 2007 OK CR 32 at ¶ 19; Hogan v. State, 2006 OK CR 19, ¶ 84, 139 P.3d 907, 935; Rojem v. State, 2006 OKCR 7, ¶¶ 59-60, 66-67, 130 P.3d 287, 299, 300; Matthews v. State, 2002 OK CR 16, ¶ 56, 45 P.3d 907, 924. Attemptin......
  • Request a trial to view additional results

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