Hooker v. Mullin, 00-6181

• Decision Date: 24 June 2002
• Docket Number: 00-6181,10
• Parties: JOHN MICHAEL HOOKER, Petitioner-Appellant, v. MIKE MULLIN, Warden, Oklahoma State Penitentiary; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees.& 00-6186 UNITED STATES COURT OF APPEALS TENTH CIRCUIT
• Court: U.S. Court of Appeals — Tenth Circuit

JOHN MICHAEL HOOKER, Petitioner-Appellant,
v.
MIKE MULLIN, Warden, Oklahoma State Penitentiary; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees.

Nos. 00-6181 & 00-6186

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

June 24, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-284-C)

James P. Moran, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colorado, for Petitioner-Appellant.

Sandra D. Howard (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Assistant Attorney General Oklahoma City, Oklahoma, for Respondents-Appellees.

Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY, Circuit Judge.

BRORBY, Senior Circuit Judge.

An Oklahoma jury convicted John Michael Hooker for the first degree murders of his common-law wife, Sylvia Stokes, and her mother, Drucilla Morgan. In accordance with the verdict, the Oklahoma district court sentenced him to death. He appeals the denial of his federal habeas corpus petition seeking to overturn those convictions and sentences. Exercising jurisdiction pursuant to 28 U.S.C. 1291 and 2253(c), we affirm the district court's denial of habeas corpus relief.(FN1)

BACKGROUND

The facts were well-summarized by the Oklahoma Court of Criminal Appeals in reviewing Mr. Hooker's direct appeal. Hooker v. State, 887 P.2d 1351 (Okla. Crim. App. 1994), cert. denied, 516 U.S. 858 (1995). We will restate the pertinent facts. Mr. Hooker and Ms. Stokes lived together for eight years and had three children. Their relationship was turbulent; they frequently separated and reconciled. It was also a violent relationship. Prior to the murders, Mr. Hooker threatened and attacked Ms. Stokes, once inflicting severe head lacerations. Five months before her murder, Ms. Stokes obtained a Victim Protective Order against Mr. Hooker. At that time, she expressed fear he would harm her and stated she did not want to be "like the others dead." Mr. Hooker distrusted Ms. Stokes. He was angry every time they broke up and was jealous when other men paid attention to her. When he was drinking, he talked about killing her. He also resented Ms. Morgan and indicated he would "get" both of them.

In early 1988, Mr. Hooker, Ms. Stokes and their three children lived at the Providence Apartments in Oklahoma City. In late March, Ms. Stokes and the children moved out of the apartment they shared with Mr. Hooker because Ms. Stokes was afraid Mr. Hooker might harm her and the children. They moved in with Ms. Morgan, who lived in the same apartment complex. On March 27, 1988, Mr. Hooker repeatedly visited the Morgan apartment, attempting to persuade Ms. Stokes to return to his apartment. She refused, and Mr. Hooker returned to his apartment alone. Later that afternoon, neighbors saw Ms. Morgan and Ms. Stokes entering Mr. Hooker's apartment.

Two women in the apartment below Mr. Hooker's apartment heard bumping and thumping noises, like someone rapidly moving furniture and throwing things. Although they heard no voices, they prayed about the noises because they thought Mr. Hooker and Ms. Stokes were fighting again. Other witnesses saw Mr. Hooker with blood on his clothing, apparently after he left the apartment. The next day, Cynthia Stokes went to Mr. Hooker's apartment to check on her mother and sister. She pushed the door open slightly and saw her mother lying on the floor in a pool of blood. The police found Ms. Morgan and Ms. Stokes in the apartment. Both women died of multiple stab wounds.

The police investigation revealed the killer left the apartment through a bedroom window. The police found a knife, with the victims' blood on it, on the floor below the window. A partial bloody footprint in the apartment matched one of Mr. Hooker's tennis shoes. The police arrested Mr. Hooker approximately one week after the murders. Police found blood matching the victims' blood type (B) on Mr. Hooker's blue jeans. Mr. Hooker has type O blood.

The jury convicted Mr. Hooker of two counts of first degree murder. At the second stage of trial, defense counsel stipulated (1) Mr. Hooker had prior violent felony convictions, and (2) he would be a continuing threat to society. In addition to the evidence presented at the first stage of trial, the State presented aggravating evidence of Mr. Hooker's nonchalant attitude about the killings when police arrested him. Mr. Hooker presented mitigating evidence about his prior offenses, his excellent prison record, his work ethic after he was released from prison, his love for his children and Ms. Stokes, his substance abuse problem, his changed behavior while using drugs, his fragile coping skills, his feelings of inferiority, his strong interpersonal skills, his traumatic family background and his chronic underlying depression.

The jury found four aggravating circumstances: (1) Mr. Hooker had a previous felony conviction involving the use or threat of violence; (2) he knowingly created a great risk of death to more than one person; (3) the murders were especially heinous, atrocious or cruel; and (4) a probability existed he would commit future acts of violence constituting a continuing threat to society. In accordance with the jury's recommendation, the trial court sentenced Mr. Hooker to death for both murders. The Oklahoma Court of Criminal Appeals affirmed the convictions and death sentences, and later denied post-conviction relief. Hooker, 887 P.2d 1351 (upholding convictions and sentences), aff'd 934 P.2d 352 (Okla. Crim. App. 1997) (denying post-conviction relief).

The federal district court denied habeas corpus relief. It granted a certificate of appealability on two issues: (1) trial counsel's ineffectiveness in stipulating to two aggravating circumstances, and (2) the effect of the improper admission of Ms. Stokes' statement, set forth in the Victim's Protective Order, that Mr. Hooker had previously killed others. We granted a certificate of appealability on two additional issues: (1) the trial court's failure to instruct on the lesser included offense of manslaughter, and (2) the sufficiency of the evidence of conscious suffering to support the jury's finding especially heinous, atrocious or cruel aggravating circumstances.(FN2)

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996, if a claim is adjudicated on its merits in state court, a petitioner is entitled to federal habeas relief only if he can establish the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d)(1), (2). The Act also requires federal courts to presume state court factual findings are correct, and places the burden on the petitioner to rebut that presumption with clear and convincing evidence. Id. 2254(e)(1). If the state courts did not decide a claim on its merits and the claim is not procedurally barred, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. McCracken v. Gibson, 268 F.3d 970, 975 (10th Cir. 2001), petition for cert. filed, (U.S. May 17, 2002) (No. 01-10302).

DISCUSSION

I. Admission of Victim Protective Order Statement

Mr. Hooker argues his trial was fundamentally unfair and he was denied due process of law when the trial court admitted a statement made by Ms. Stokes in a Victim Protective Order. Five months before the murders, Ms. Stokes obtained a Victim Protective Order against Mr. Hooker. Despite defense objections, the district court allowed the jury to consider Ms. Stokes' statement in the protective order: "[I] feel he will harm me" and "please help me ... I don't want to be like the others dead."

Mr. Hooker raised this claim in his direct appeal. The Oklahoma Court of Criminal Appeals concluded the trial court erred in admitting the statement, "I don't want to be like the others dead," because it implied Mr. Hooker "committed past acts of violence in which he killed other people." Hooker, 887 P.2d at 1360. Nonetheless, the Oklahoma appellate court found the error harmless beyond a reasonable doubt because the "error did not contribute to the verdict" and the evidence supporting Mr. Hooker's two death sentences was overwhelming. Id. at 1360 & n.19. Mr. Hooker presented similar arguments in both his state and federal petitions for post-conviction relief. Those courts rejected his claims for substantially the same reasons.

In the habeas petition before us, Mr. Hooker claims the "others dead" statement was inflammatory and extremely prejudicial. Mr. Hooker also argues the statement was uncorroborated hearsay,(FN3) remote, misleading, false, of slight probative value, and the trial court failed to instruct the jury on the limited purpose of its admission. For these reasons, Mr. Hooker believes admission of the statement deprived him of due process and resulted in a fundamentally unfair trial.

We limit our review(FN4) to consideration of alleged violations of the Constitution, laws or treaties of the United States. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Mr. Hooker, therefore, can receive habeas relief only if the erroneous admission of evidence rendered his trial as a whole fundamentally unfair. Mitchell v. Gibson, 262 F.3d 1036, 1053 (10th Cir. 2001). In federal habeas, we review state court evidentiary rulings "to determine whether the error was so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process." Williamson v. Ward, 110 F.3d 1508, 1522 (10th Cir. 1997).

Considering the overwhelming evidence produced at trial illustrating the very turbulent, and...