Hooper v. State

• Decision Date: 21 October 1997
• Docket Number: No. F-95-835,F-95-835
• Citation: 1997 OK CR 64,947 P.2d 1090
• Parties: 1997 OK CR 64 Michael Edward HOOPER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1090

947 P.2d 1090

1997 OK CR 64

Michael Edward HOOPER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-95-835.

Court of Criminal Appeals of Oklahoma.

Oct. 21, 1997.

Rehearing Denied Nov. 24, 1997.

Mitchell A. Lee, Muskogee, Richard Krogh, Lawrence, KS, for Defendant at trial.

Cathy Stocker, Michael S. Gahan, Assistant District Attorneys, El Reno, for State at trial.

James Drummond, Appellate Defense Counsel, Capital Direct Appeals Division, Oklahoma Indigent Defense System, Norman, for Appellant on appeal.

W.A. Drew Edmondson, Attorney General, Robert Whittaker, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

OPINION

CHAPEL, Presiding Judge.

Michael Edward Hooper was tried by a jury and convicted of three counts of Murder in the First Degree, in violation of 21 O.S.1991, § 701.7(A), in the District Court of Canadian County, Case No. CF-93-601. On Counts I and III the jury found Hooper knowingly created a great risk of death to more than one person and probably would commit criminal acts of violence that would constitute a continuing threat to society; on Count II, that Hooper knowingly created a great risk of death to more than one person, probably would commit criminal acts of violence that would constitute a continuing threat to society, and committed the murder in order to avoid or prevent a lawful arrest or prosecution. In accordance with the jury's recommendation, the Honorable Edward C. Cunningham sentenced Hooper to death on each count. Hooper has perfected his appeal of these convictions and sentences and raises sixteen propositions of error. After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find that neither reversal nor modification is required under the law and evidence. We affirm Hooper's Judgments and Sentences.

Hooper was convicted of killing his ex-girlfriend Cynthia Jarman [Cindy] and her two children, five-year-old Tonya and three-year-old Timmy. Hooper and Cindy met in 1992 and dated through the summer of 1993. On more than one occasion the couple fought and Cindy called police. At one point each had a victim's protective order against the other. Several times Hooper threatened to kill Cindy. In October or November, 1993, Cindy and her children moved in with Bill Stremlow. He told Cindy that Hooper was not welcome in their home. On December 6, 1993, Cindy told a friend she wanted to be with Hooper one last time and then stop seeing him.

Hooper bought a Smith & Wesson 9mm pistol on July 15, 1993. During a traffic stop the next day the Oklahoma City Police Department [OCPD] confiscated the gun. The OCPD returned the gun on October 23, 1993, but kept the ammunition. Hooper went target shooting with friends in fields northwest of Oklahoma City the day he bought the gun and after it was returned. He took the gun when he worked out-of-state in late October and November and refused a co-worker's offer to buy it. On December 6 or 7, 1993, Hooper showed a 9mm pistol to a neighbor.

On December 7, 1993, Cindy and her children drove Stremlow to work and borrowed his truck. Tonya got out of school at 3:30 p.m. Cindy was about fifteen minutes late to pick up Tonya; Tonya's teacher saw her get in Stremlow's truck next to a white male who was not Stremlow. Cindy failed to pick up Stremlow after work and he never saw her again; Cindy had Stremlow's only house key and he had to borrow his landlord's key to get in his house that night. Stremlow's truck was found burning in a field in northwest Oklahoma City the night of December 7. He recovered it the next day. Accelerant, probably gasoline, had been used to set the truck on fire and the windows were broken out. Stremlow returned to his house December 10; although there were no signs of forced entry, a dresser drawer was disturbed, a Jim Beam whiskey bottle was on the dresser, and ten dollars in cash was missing. Hooper's fingerprints were on the Jim Beam bottle, and other evidence showed Hooper and Cindy drank that brand of whiskey.

Cindy and her children were reported missing on December 9. Police attempted to interview Hooper; he failed to come to the station and denied seeing Cindy for the past six months. Hooper appeared nervous and had a fresh scratch on his arm. Also on December 9, an area rancher noticed damage to his gate leading to a northwest Oklahoma City field. Inside the field he found broken glass, tire tracks, a bloody sock and a pool of blood. After hearing the missing persons report, the rancher contacted police. The next day police searched the field and found broken glass, tire tracks, a footprint, shell casings, a child's bloody sock, a pool of blood near a tree with a freshly broken branch, a blue fiber near the tree, and a grave site covered by limbs, leaves and debris. The grave appeared to be soaked with gasoline. Tonya, Timmy and Cindy were buried atop one another. Each victim had been shot twice in the head. There was a hole in the hood of Tonya's blue and purple jacket, and the white fiber lining protruded. A 9mm bullet pinned a white fiber to a branch on the grave. The branch appeared to have been broken from the tree near the pool of blood.

Police arrested Hooper and searched his parents' house. They found the 9mm pistol, two shovels with soil consistent with soil from the grave site, two gas cans, and broken glass consistent with glass found in Tonya's coat and near the gate. Police found a 9mm bullet in Hooper's pocket. His shoe print was similar to the footprint at the scene and DNA evidence showed blood on Hooper's shoes was consistent with Cindy's blood. Shell casings found where Hooper went target shooting matched bullets shot from his gun and casings found at the crime scene. In the past, Hooper and his ex-wife Stefanie Duncan had regularly visited the field where the bodies were found.

PRETRIAL ISSUES

Hooper argues in his first two propositions that the affidavits supporting the arrest and search warrants were insufficient, and the evidence seized through those warrants should have been suppressed. Hooper has waived review of all but plain error. He neither challenged his arrest nor moved to suppress evidence obtained as a result of his arrest. Failure to raise a timely objection to the legality of an arrest before entering a plea waives review. ¹ Hooper also failed to move to quash the search warrant or suppress the evidence seized under the search warrant; nor did he object when that evidence was introduced at trial. On review, this Court will determine whether the magistrate had a substantial basis for concluding probable cause existed to believe Hooper committed the crimes, looking at the totality of the circumstances contained in the affidavits supporting the warrants. ² A review of the affidavit as a whole may give sufficient reason to consider the information in the affidavit credible. ³ Affidavits are presumed valid. Where an affidavit is expressed in positive terms, a defendant may not go behind that language to show the officer did not have knowledge of the allegations set forth. ⁴ To challenge the substance of an affidavit Hooper must establish by a preponderance of the evidence that the affiant committed perjury or acted with reckless disregard for the truth. ⁵

In Proposition I Hooper alleges the arrest warrant was defective because the facts set forth in the affidavit did not establish probable cause that he committed the crimes. On December 13, 1993, Canadian County issued a warrant for Hooper, and police arrested him at his parent's home. After the arrest, police seized Hooper's tennis shoes and a 9mm bullet found in his pocket, and photographed a scratch on Hooper's arm. The shoes were later compared to a footprint at the scene, and DNA testing determined blood on one shoe was probably Cindy's.

The affidavit accompanying the warrant includes the following information: (1) Hooper was arrested on July 16, 1993 for possession of a Smith & Wesson 9mm handgun, which was released to him on October 29, 1993 (while the OCPD Property Room retained the ammunition); (2) the victims' bodies dead of multiple gunshot wounds were discovered in a grave in Canadian County on December 12, 1993, and 9mm casings and a bullet were discovered near the grave; (3) the 9mm casings matched the casings from the OCPD property room; (4) Hooper was Cindy's ex-boyfriend and had been violent towards her; (5) Hooper, in the course of the missing persons investigation, declined to speak to officers on the advice of counsel; ⁶ and (6) on December 6 or 7, Hooper showed a witness a 9mm semi-automatic handgun.

Hooper first claims the magistrate could not have found this affidavit sufficient because it (a) neither includes the source of the allegations in item No. 4 nor indicates that the information was within the affiant's personal knowledge; (b) does not name the interviewing officers in item No. 5; and (c) neither alleges whether an informant existed nor indicates a record of reliability. A review of the entire affidavit shows these complaints are without merit. The affidavit begins by stating "the facts known to the affiant", and thus on its face does not indicate that an informant gave the information to Officer Presley. Officer Presley's failure to name the interviewing officers alleged to have spoken to Hooper is not fatal, since the magistrate had a basis for determining the veracity and reliability of law enforcement officers. Taken as a whole, the affidavit provides enough information to form a substantial basis for probable cause. There is no plain error here.

Hooper next complains that item No. 3 was incorrect in averring the site shell casings matched the property room casings, that the statement was reckless, and that Officer Presley knew or should have known the statement was false since the OCPD bullets had not been fired and thus had no casings to compare. Hooper does not...