San Francisco Chronicle

Thursday, February 6, 1997

A convicted California rapist has been arrested in San Jose in connection with the 1992 slayings of five women at an Oklahoma City crack house, authorities say.

Danny Keith Hooks, 38, was arrested Tuesday night by FBI agents and San Jose police at the LeBaron Hotel in north San Jose.

Hooks was being held in the Santa Clara County jail pending extradition proceedings, San Jose police spokesman Bob Beams said Wednesday.

FBI spokesman George Grotz said the arrest had come after a five-day manhunt in the Bay Area - primarily in Richmond and San Jose - that involved about two dozen FBI agents and local police.

Friday, Oklahoma City District Attorney Bob Macy filed five murder charges against Hooks after California authorities reported a match between a DNA sample from the Oklahoma murder scene and blood taken from Hooks after his rape conviction here.

Hooks was convicted in 1988 in Contra Costa County of rape, kidnapping and assault with a deadly weapon, said Mike Van Winkle, a spokesman for the state Department of Justice.

Authorities say the DNA links Hooks to the slayings of Sandra Thompson, 35, Phyllis Adams, 47, Lashawn Evans, 30, Carolyn Watson, 37, and Fransill Roberts, 34.

The women were found bound, nude and lying in blood May 16, 1992. All had been stabbed repeatedly, and four had been sexually assaulted.

HOOKS v. STATE
2001 OK CR 1
19 P.3d 294
72 OBJ 371
Case Number: D-98-1231
Decided: 01/22/2001
Modified: 03/12/2001

DANNY KEITH HOOKS, Appellant -vs- STATE OF OKLAHOMA, Appellee

As Corrected: March 13, 2001

¶1 Danny Keith Hooks was tried by jury and convicted of five counts of Murder in the First Degree in violation of 21 O.S.1991, § 701.7, in the District Court of Oklahoma County, Case No. CF-97-657. The jury found two aggravating circumstances for each count: (1) that Hooks had been previously convicted of a felony involving the use or threat of violence to the person; and (2) that the murder was especially heinous, atrocious, or cruel. ¹ In accordance with the jury's recommendation the Honorable Daniel L. Owens sentenced Hooks to death on each count.

¶2 On May 16, 1992, the bodies of Phyllis Adams, LaShawn Evans, Sandra Thompson, Carolyn Watson, and Francill Roberts were found in a small bedroom in a crack house. Each woman was gagged and had been stabbed several times. The bodies were nude and Thompson, Watson, and Roberts were bound. ² The room was in disarray and the victims' purses appeared to have been searched. There were no drugs or money in the house.

¶6 The State first argues that Hooks waived this claim by failing to file a written motion to quash the panel. Oklahoma law requires a venire challenge to be in writing, specifying the facts which constitute the grounds for the challenge. ³ Hooks argues counsel substantially complied with the intent behind the statute, since the trial court was alerted to the exact problem with the venire and a record was made which enables this Court to review the error. We agree both that the claim was waived under the law and that a sufficient record enables us to review Hooks's claim. In keeping with the heightened level of scrutiny required in capital cases, we have reviewed the claim and conclude Hooks has not shown error.

¶7 In order to prove he was denied a jury composed of a fair cross-section of the community Hooks must show: (1) the excluded group is distinctive in the community; (2) the group's representation in the jury pool is not fair and reasonable in relation to the number of people in the community; and (3) the under-representation is due to systematic exclusion in the jury selection process. ⁴ Hooks presents a meticulous argument, using a variety of statistical models, to show that African-Americans were woefully under-represented on his venire. We need not adopt any of these statistical methods to resolve this issue. Assuming without deciding that Hooks has shown under-representation, he completely fails to show that this was caused by systematic exclusion in the selection process. This Court has found the Oklahoma jury selection method does not per se systematically exclude African-Americans. ⁵ To overcome this, Hooks argues first that the degree of under-representation must indicate a systemic defect in either the method of selection or the assignment of jurors to individual courtrooms. We decline this suggestion that we assume systematic bias rather than requiring evidence of it. Hooks next argues systematic exclusion is proved by the Oklahoma County Court Clerk's failure to secure jurors who do not answer the summons to duty. He claims this ensures large identifiable classes of jurors are excluded, but offers nothing to suggest either that this is true or that those persons are African-American. He claims the Oklahoma County practice giving trial courts control of jury selection in individual cases constitutes a factor within the State's control giving rise to systematic exclusion. Again, Hooks offers nothing to prove this actually leads to exclusion beyond his claim that the statistical [19 P.3d 305] anomaly itself proves African-Americans must have been systematically excluded. The United States Supreme Court has found systematic exclusion where states explicitly excluded particular groups of people from jury service, or erected a racially non-neutral selection process. ⁶ Hooks shows nothing similar. We have already upheld Oklahoma's statutory jury selection method and will not, without some proof, find it systematically excludes minorities on the strength of statistical disparity alone. This proposition is denied.

¶8 In Proposition I Hooks claims the evidence was insufficient to convict him of first degree murder. The State's case against Hooks was built on strong circumstantial evidence. ⁷ Circumstantial evidence must exclude every reasonable hypothesis other than guilt. ⁸ We will accept all reasonable inferences and credibility choices which tend to support the jury's verdict. ⁹ Taken together, the evidence presented at trial meets this standard. We disagree with Hooks's claim that his story raised a credible reasonable hypothesis of innocence. Circumstantial evidence connecting Hooks to the murders includes:

¶12 The trial court explicitly excluded the evidence because to admit the boots "would absolutely violate the principles that we all have relating to mutual and open discovery." The trial court held the issue was not one of nondisclosure but found admitting the evidence would be extremely prejudicial to the State's case. ¹⁰ This decision is contradicted by well-settled case law holding that exclusion of defense evidence is a harsh sanction almost never appropriate in capital cases. We have often held that this sanction is too severe a remedy for discovery violations where the evidence is material and the violation is not blatant, willful or calculated. ¹¹ Here the record supports the conclusion that the discovery violation was at best inadvertent and at worst unavoidable (counsel did not have the evidence until the day it was presented). As we discuss below, the evidence was material. Hooks's counsel indicated he would not object to a continuance for the State to examine the boots and sponsoring witness. However, the trial court and State apparently did not even consider this option. As Hooks notes, we routinely require defendants in these circumstances to request a continuance for adequate time to prepare. ¹² We should hold the State to the same requirement.

¶14 The trial court mechanistically applied a discovery rule and prohibited Hooks from introducing material evidence relevant to guilt or innocence during his case in chief. ¹³ We do not approve the unnecessary imposition of this harsh sanction in this case. However, a thorough review of the record persuades us that the error neither resulted in a miscarriage of justice nor substantially violated Hooks's statutory or constitutional rights. ¹⁴ Even without connecting Hooks to the bloody bootprint, the prosecution connected him to the crime through DNA and palmprint evidence. Other witnesses testified Hooks was familiar with the house and some of the victims. We conclude beyond a reasonable doubt that this error was harmless. ¹⁵ We also examine the error for its effect on second stage. Although it is possible that, had Hooks been able to introduce boots without the "Honchos" soles, jurors might have concluded a second person was also responsible for the killings and declined to impose the death penalty, jurors could have reached that conclusion based on the State's failure to solidly connect Hooks to the "Honchos" boots. We conclude the error did not affect the jury's second stage verdicts. This proposition is denied.

¶16 After Johnson testified prosecutors called Officer Burke to read his report on Johnson's statement. Hooks's objection was overruled and this issue was preserved for appeal. Hooks correctly complains that prosecutors should not have been allowed to bolster Johnson's testimony with this prior consistent statement, which was both hearsay and extrinsic evidence. The State appears to misunderstand this claim. Hooks is not claiming the State had no right to impeach its own witness. Hooks is claiming the State properly impeached its witness by offering Johnson the prior consistent statement and allowing him the opportunity to explain or deny it. ¹⁶ Johnson agreed with the statement. There was no need for Officer Burke to provide hearsay further bolstering Johnson's testimony. Officer Burke's evidence was offered solely to prove the truth of the matter asserted, and it does not fall under any exception to the hearsay rule. This Court has found error before where the same officer gave substantially similar testimony. ¹⁷ However, here we find beyond a [19 P.3d 308] reasonable doubt that the improperly admitted hearsay did not contribute to Hooks's convictions and sentences. ¹⁸ This proposition is denied.

¶17 In Proposition VI Hooks alleges the trial court erred by permitting the State to introduce evidence of other bad acts that were not part of the transaction resulting in the death of the victims. Over Hooks's strenuous objections the prosecution repeatedly elicited evidence that Hooks was interested in group sex. There were some sexual overtones at trial since the victims were nude women, four had old semen from various donors present in their bodies, and Hooks admitted having sex with two victims. No sex crimes were charged. Both parties agree a defendant should ideally be convicted by evidence showing his guilt of the offense charged, rather than by evidence of other crimes or bad acts. ¹⁹ Prosecutors admitted this material was not included in a Burks notice ²⁰ but argued both: (1) Hooks's interest in group sex was not illegal and thus not subject to Burks, and (2) sex with multiple partners showed Hooks's proclivity for group sex. This argument is self-contradictory. Prosecutors used this evidence to argue that Hooks had a deviant, depraved nature and constituted proof that Hooks murdered the victims. In second stage, Mr. Macy appeared to argue that sex with multiple partners was itself evidence of a continuing threat to society.

¶18 On appeal the State contends this evidence was relevant since Hooks admitted he had intercourse with two of the victims that night. On the contrary, since Hooks made this admission (concerning the only sexually-related issue in the case) whether he enjoyed or fantasized about group sex with other women was wholly irrelevant. The State also unconvincingly argues without explanation that Hooks's penchant for group sex was relevant simply because these victims were nude. There simply is no credible argument that this evidence was relevant to any issue raised in the first stage of trial. ²¹ After thoroughly reviewing the record, we conclude that this error did not unduly prejudice Hooks. While the jury may have agreed with prosecutors that Hooks's enjoyment of group sex was repugnant, that information was ultimately irrelevant to the issue of whether Hooks stabbed the five victims. The murder charges were well-supported by relevant evidence. Erroneously admitting this other crimes evidence neither constituted a miscarriage of justice nor deprived Hooks of a statutory or constitutional right. ²² This proposition is denied.

¶21 After the second note announcing a deadlock, the trial court overruled Hooks's motion for a mistrial. The trial court announced it did not believe jurors had been out long enough to declare a mistrial and stated it would give an Allen²³ charge, OUJI-CR (2^d) 10-11. Trial counsel objected, saying, "We think that the Allen charge and instruction given is not an appropriate instruction to be given to a jury in the stage two deliberation since there is such an overlap of moral and legal issues." The trial court overruled this objection and refused counsel's request to ask jurors whether further deliberation would be helpful before giving the Allen instruction. The trial court then called the jury in. The court told jurors the case had taken approximately 57 hours of trial time, and they had only deliberated for six and a half hours. The court then gave OUJI-CR (2^d) 10-11, including the following language:

¶25 Hooks first claims the trial court should not have told jurors they could not return to their homes until the close of the proceedings. This is an accurate statement of law - the jury was sequestered and jurors could not be separated until they either reached a verdict or an impasse was declared. Hooks argues that it is nonetheless error because, in context, it suggested jurors could not leave until they had a unanimous verdict. The trial court knew that, several hours earlier, the jury had announced an 11-1 deadlock. Hooks claims that under these circumstances the trial court's announcement put unbearable pressure on the holdout juror. He argues that the quick return of a verdict after this instruction suggests coercion. ²⁴ We are mindful of that inference but cannot agree that the trial court's accurate statement of law was either explicitly or inherently coercive.

¶26 Hooks correctly complains that, when releasing the jury for further deliberation after dinner, the trial court should have admonished jurors not to abandon their honestly held beliefs. Well-settled law indicates that this exhortation is necessary whenever a deadlocked jury is returned to deliberations. ²⁵ In a similar case this Court recently found this omission to be reversible error. ²⁶ According to the last substantive communication from Hooks's jury, it was deadlocked 11-1 in favor of death. Under those circumstances the trial court had a duty to ensure each juror understood his or her obligation to hold fast to firm convictions, and not to concur in a finding or verdict simply to reach a unanimous decision. The trial court should have included this admonition to Hooks's jury when releasing it for evening deliberations.

¶28 Hooks claims the trial court erred in refusing to give the capital deadlock instruction, OUJI-CR (2^d) 4-83. Hooks is right. This instruction repeats the relevant statutory language:²⁷

¶30 OUJI-CR (2^d) 4-83 became effective, with the rest of the revised criminal jury instructions, on August 1, 1996. Its advent recognized the change in law brought about by § 701.11, and altered the trial court's appropriate response to a deadlocked capital jury. Unfortunately neither the OUJI Comment nor this Court's subsequent case law has discussed or reflected that change. In several earlier cases appellants raised this issue in the abstract, claiming error where trial courts refused to initially instruct jurors that, if they could not reach a unanimous sentencing verdict, the trial court would impose sentence. In those cases this Court quite reasonably held such an instruction would distract the jury from its duty to assess a sentence.²⁸ None of those cases raised the issue in the context of a capital jury deadlocked in the second stage. However, the OUJI Comment relied on those cases when comparing the § 701.11 language with our previous holdings that the instruction was improper. This creates nothing but confusion and the trial court here understandably concluded that the Comment "does not make a lot of sense." Although the Comment is confusing, the language of the instruction itself is clear and readily understandable. We recommend that the language in the Comment be rewritten to reflect the current state of the law.

¶31 Gilbert v. State²⁹ posed the question: is it error to give an Allen charge to a deadlocked second-stage capital jury? In that case, the Petition in Error was filed in this Court June 24, 1996, and OUJI-CR (2^d) 4-83 was not in effect at the time of trial.³⁰ We found in Gilbert that an Allen charge was not per se coercive,³¹ and we confirm that conclusion now. However, Gilbert used the cases cited in Note 28, supra, to determine that an instruction on the sentencing provisions of § 701.11 would "distract" even a deadlocked capital sentencing jury.³² As these cases did not consider the question, their authority on this issue is dubious at best. In addition, that trial court had no alternative but the Allen charge. The Gilbert Court was not faced with the choice [19 P.3d 312] between OUJI-CR (2^d) 4-83 and OUJI-CR (2^d) 10-11. Our conclusion is compelled by common sense, fairness, and the clear intent of the Legislature as expressed in § 701.11. Where a capital jury is deadlocked on the issue of punishment, the trial court should give OUJI-CR (2^d) 4-83. Any previous holdings to the contrary are overruled.

¶32 We are left with the issue of whether the error in this case - the trial court's refusal to give 4-83 - requires relief. We continue to hold that an Allen instruction, while no longer the appropriate instruction under these circumstances, is not per se error in the second stage of a capital case. The trial court gave the correct Allen instruction. We have already determined that the trial court's actions were not inherently or explicitly coercive. Given these facts we decline to grant relief for this error in instruction.³³ This proposition is denied.

¶33 In Proposition VIII Hooks claims the trial court erred in failing to provide guidance to the jury in response to a question which indicated a clear misunderstanding of the law. During second-stage deliberations the jury sent out a note complaining that the holdout juror, refusing to change her vote, "refers on grounds not related to the law."³⁴ Hooks claims this phrase indicates the jury misunderstood Oklahoma law by believing that the law might require a death sentence, and argues the trial court erred in failing to correct this misunderstanding. Hooks suggests the trial court should have emphasized that the law never requires a jury to impose the death penalty. The State cites no relevant authority to support its response, and does not discuss Hooks's cited cases.

¶34 A trial court has a duty of special care to evaluate jurors' understanding of the law and clear away any explicit difficulties.³⁵ This Court is troubled by the suggestion that the jury believed Oklahoma law required imposition of the death penalty. However, such an interpretation is pure speculation. The jury was accurately instructed that it was authorized to impose the death penalty if it unanimously found one or more aggravating circumstances, and then found that circumstance outweighed any mitigating evidence. Nothing in the instructions suggested the jury was required to impose a death sentence if it found at least one aggravating circumstance. Instruction 11 told the jury it could impose a sentence of life or life without parole even after finding aggravating circumstances outweighed mitigating circumstances. As the record does not support Hooks's assertion that the jury misunderstood the law, we find no error in the trial court's response.³⁶ This proposition is denied.

¶35 In Proposition X Hooks alleges his death sentence must be vacated because the use of victim impact evidence violated his rights. A family member gave victim impact testimony for each victim in question-and-answer format. Hooks neither cross-examined these witnesses nor objected to victim impact testimony, and has waived all but plain error. Victim impact testimony [19 P.3d 313] must conform to specific guidelines; the trial court must find that evidence of at least one aggravating circumstance is present before admitting the evidence; and the jury must be properly instructed on victim impact evidence.³⁷ The trial court made no formal finding that evidence of one or more aggravating circumstance was present in the record. However, before victim impact evidence began trial counsel stated he expected prosecutors to abide by this Court's guidelines and the statutory requirements for this evidence. The trial court agreed. All parties reviewed the victim impact instruction and agreed on the parameters of the evidence. The appropriate victim impact instruction was given. Sufficient evidence supported more than one aggravating circumstance. There is no plain error in the trial court's failure to explicitly find evidence of at least one aggravating circumstance before admitting victim impact evidence.

¶36 Hooks complains that Ms. Lewis should not have been allowed to give victim impact testimony regarding Evans. Lewis, Evans's aunt, testified about the effects of Evans's death on herself, Evans's daughter and father, and the extended family. Victim impact evidence is limited to the effect on a victim's immediate family, defined as "the spouse, a child by birth or adoption, a stepchild, a parent, or a sibling of each victim."³⁸ Victim impact testimony may be given by an immediate family member or person designated by the family to represent them at trial for this purpose.³⁹ We will not presume, in the face of a silent record, that Lewis was in fact the family's designated representative. However, her testimony emphasized the effect of Evans's death on her child and parent. Lewis's remarks regarding her own reactions to Evans's death may have been improper under the statute. However, this was a small portion of her testimony. Had Lewis been formally designated as the family's representative her testimony would have been proper. We find no plain error.

¶37 Hooks also complains that Lewis and other victim impact witnesses gave hearsay testimony regarding other family members. Victim impact evidence is intended to give a "quick glimpse" of a victim by focusing on the financial, emotional, psychological, and physical effect of the crime itself and some personal characteristics of the victim.⁴⁰ We have held the rules of evidence, including the prohibition against hearsay, apply to victim impact testimony.⁴¹ However, the statute clearly allows one person to speak for an entire family and describe the effect of a victim's death on individual family members.⁴² We reconcile this apparent conflict by finding no error where a family member or representative gives victim impact testimony on behalf of several immediate family members, as long as that testimony is otherwise admissible. Here, the five victim impact witnesses did not dwell unduly on the emotional effect of the victims' deaths. We do not agree with Hooks's claim that most of this evidence was irrelevant. Lewis's statement that Evans's father said he would never see justice for his child, then died six months after her death, was not within the bounds of appropriate victim impact testimony. We cannot say this isolated statement caused the verdict to be the result of an unreasoned emotional response.⁴³

¶38 We have repeatedly found that victim impact evidence does not operate as a "superaggravator".⁴⁴ We decline Hooks's invitation to revisit those decisions. Any [19 P.3d 314] isolated error in victim impact evidence did not divert the jury from its duty to make a decision through a reasoned moral response.⁴⁵ This proposition is denied.

¶39 In Proposition XI Hooks claims the "especially heinous, atrocious or cruel" aggravating circumstance is unconstitutional. He argues this aggravating circumstance is standardless and serves no narrowing function. He acknowledges we have consistently rejected this claim,⁴⁶ but urges us to reconsider. Hooks's reliance on Robinson v. State⁴⁷ is misplaced. In Robinson the Court found the victim was conscious and suffered physical anguish.⁴⁸ Where, as here, there is proof of conscious physical suffering or extreme mental cruelty, this Court will continue to uphold this aggravating circumstance. This proposition is denied.

¶40 In Proposition II Hooks argues he was deprived of a fair trial and fair sentencing hearing by prosecutorial misconduct in first stage during both argument and presentation of evidence, and during second stage argument. He failed to object to any instances of misconduct and we review for plain error only. We recognize the State's wide latitude to discuss the evidence and reasonable inferences from evidence in closing argument, and will only grant relief where grossly improper and unwarranted argument affects a defendant's rights.⁴⁹ Prosecutors misused evidence in the first stage of trial and engaged in egregiously improper argument which we have often condemned. These missteps are particularly unnecessary here, where the evidence amply supported the State's case and the jury verdicts. This Court has in the past warned prosecutors against misconduct that can endanger a case.⁵⁰ However, we do not find these errors entitle Hooks to relief. This proposition is denied.⁵¹

¶43 Hooks next complains the prosecutor should not have argued in closing that Hooks's presence at trial allowed him to hear the State's evidence and then create a story to fit it. The United States Supreme Court recently found this argument was not an impermissible comment on a defendant's right to testify, or an infringement on his right to confront witnesses or on the requirement he be present at trial.⁵² Given this precedent we decline to find error.

¶44 Hooks claims prosecutors erred in several comments during second stage closing argument. Most of the statements are borderline at best. Each claim is set forth below.⁵³

¶49 This Court is concerned about these misstatements of law. First, all twelve jurors do not have to unanimously agree in capital sentencing proceedings. Second, the failure to agree does not amount to jury nullification. Oklahoma law specifically provides that the jury may not reach a unanimous verdict.⁵⁴ As the law provides for this result, failure to agree cannot be said to impede or obstruct it. Third, deadlocked juries are instructed not to abandon their honestly held convictions or concur in a verdict which they cannot in good conscience accept (as this jury was, see Proposition VII) while attempting to resolve their differences. The closing arguments complained of here suggest jurors should in fact abandon their honestly held beliefs if those beliefs will result in a less than unanimous verdict. These misstatements of law could have deprived Hooks of his right to a properly instructed capital jury, and come close to requiring relief even if the other comments did not render the proceedings as a whole fundamentally unfair. We note, however, that despite these erroneous arguments the jury was deadlocked for several hours. We must conclude that the jurors in this case were not misled. Capital cases will not always present such a clear indication of the jury's understanding. We thus strongly caution prosecutors against using this argument during the second stage of a capital trial.

¶52 Hooks finally complains of two arguments - the infamous "three hots and a cot" and the exhortation to the jury to "pray if you want to." This Court has repeatedly condemned both these arguments and warned these same prosecutors to stop using them.⁵⁵ The Court even recently [19 P.3d 317] reversed a case partially on the strength of this improper argument.⁵⁶ The Oklahoma County District Attorney office is ignoring this Court's direction. Although we cannot condone this practice and once again direct prosecutors to refrain from this type of argument, we conclude that the error here does not require relief.⁵⁷

¶54 In Proposition IV Hooks argues he was denied effective assistance of trial counsel. To prevail, Hooks must show counsel's performance was so deficient that he did not have counsel as guaranteed by the Sixth Amendment, and that the deficient performance created errors so serious as to deprive Hooks of a fair trial with reliable results.⁵⁸ In capital cases, there must be a reasonable probability that, absent errors, the jury would have concluded the balance of aggravating and mitigating circumstances did not support a death sentence.⁵⁹ A reasonable probability is one sufficient to undermine confidence in the outcome of the case.⁶⁰ We presume counsel's conduct was professional and equaled sound trial strategy.⁶¹ We consider the challenged conduct on the facts of the case as viewed at the time and ask if it was professionally unreasonable, then consider whether the error affected the jury's judgment.⁶² To determine whether counsel's acts or omissions were outside the wide range of professionally competent assistance, we consider whether counsel fulfilled the function of making the adversarial testing process work.⁶³ We need not determine whether counsel's performance was deficient if we find no prejudice.⁶⁴ Using this standard of review counsel was not ineffective and this proposition should be denied.⁶⁵ We cannot agree, however, with the State's argument that the record shows counsel was a zealous advocate. For example, contrary to the State's assertion, counsel did not file "a substantial number" of pretrial motions. Counsel filed two - a general discovery motion and a request to withdraw from the case for Hooks's failure to pay for services.

¶58 When Hooks took the stand counsel made sure the jury knew Hooks had prior convictions for rape and assault with intent to commit bodily harm. Hooks now complains this trial strategy was unreasonable. He suggests counsel should first have moved the trial court to rule these prior convictions unavailable for impeachment purposes. Prior convictions may be used to impeach a witness.⁶⁶ In ruling on their admissibility the court must consider (1) their impeachment value; (2) the time of the convictions and the defendant's subsequent history; (3) the similarity between the prior and charged crimes; (4) the importance of the defendant's testimony; and (5) whether credibility is central to the trial.⁶⁷ We disagree with Hooks's claim that the prior offenses were so similar to the charged crime of murder as to automatically prejudice the jury against him. Hooks's prior convictions were relevant for impeachment purposes and admissible, and their probative value for impeachment was not outweighed by the danger of prejudice. As the prior convictions were admissible and would have been used for impeachment, counsel was not ineffective for omitting to ask the trial court to prohibit the State from using Hooks's priors.

¶60 Finally, in Proposition XII Hooks claims the accumulation of error in his case deprived him of due process and a reliable sentencing proceeding. We have found error in Propositions II, III, V, VI, VII and VIII. The evidentiary errors in Propositions III, V and VI had no effect on the verdicts. Taken cumulatively, their effect is no greater. The errors in instruction in Proposition VII were magnified by the prosecutors' egregious misstatements of law in Proposition II and may have led to a misunderstanding of law detailed in Proposition VIII. However, we find the combination of errors did not infect the trial or sentencing proceeding with unfairness, and does not require relief.⁶⁸ This proposition is denied.

¶62 The jury was instructed on and found the existence of two aggravating circumstances: (1) that Hooks had been previously convicted of a felony involving the use of threat of violence to the person, and (2) that the murders were especially heinous, atrocious or cruel. The jury was instructed on seventeen mitigating factors.⁶⁹ Upon our review of the record, we find the sentence of death to be factually substantiated and appropriate.⁷⁰

¹ 21 O.S.1991, § 701.12. The Bill of Particulars also alleged that Hooks knowingly created a great risk of death to more than one person, that the murders were committed for the purpose of avoiding arrest or prosecution, and the existence of a probability that Hooks would commit criminal acts of violence that would constitute a continuing threat to society. The jury did not find these aggravating circumstances.

² Adams was partially clothed but her brassiere and shirt were pulled up, exposing her chest area. Evans and Adams were not bound, but evidence suggested at one time Adams's hands had been tied.

³ 22 O.S.1991, § 634; Lauhoff v. State, 1973 OK CR 127, 508 P.2d 285, 286-87 (failure to file written motion waives challenge).

⁴ Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

⁵ Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 517, cert. denied, ___ U.S. ___, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000); Trice v. State, 1993 OK CR 19, 853 P.2d 203, 207-08, cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 597; Fox v. State, 1989 OK CR 51, 779 P.2d 562, 566, cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990).

⁶ Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) (non-neutral "key-man" selection system excluded Mexican-Americans); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (analogy to jury selection, systematic exclusion shown where no African-Americans on venire and jury commissioners not told of eligible jurors, or showing of racially non-neutral selection process); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (State conceded systematic exclusion where women were not summoned for jury service unless they had previously filed a written declaration of wish to serve).

⁷ The State suggests that Hooks was convicted by direct evidence. Despite some anomalous cases suggesting otherwise, a defendant's testimony does not provide direct evidence unless he includes actual direct evidence of the crime. See Hooper v. State, 1997 OK CR 64, 947 P.2d 1090, 1103, cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998); Mollett v. State, 1997 OK CR 28, 939 P.2d 1, 9, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998); Hill v. State, 1995 OK CR 28, 898 P.2d 155, 156.

⁸ Miller v. State, 1998 OK CR 59, 977 P.2d 1099, 1107, cert. denied, ___ U.S. ___, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999); Hooper, 947 P.2d at 1103; Mollett, 939 P.2d at 9.

⁹ Hooper, 947 P.2d at 1103; Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 358, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d. 299 (1997).

¹⁰ This conclusion is not supported by the evidence. The State could have argued to the jury, as it did to the trial court, that it was unlikely these boots were actually the boots Hooks wore in 1992.

¹¹ White v. State, 1998 OK CR 69, 973 P.2d 306, 310-311; Allen v. State, 1997 OK CR 44, 944 P.2d 934, 937; Wisdom v. State, 1996 OK CR 22, 918 P.2d 384, 396, cert. denied, 528 U.S. 1020, 120 S.Ct. 529, 145 L.Ed.2d 410 (1999); Morgan v. District Court of Woodward County, 1992 OK CR 29, 831 P.2d 1001, 1005.

¹² Moss v. State, 1994 OK CR 80, 888 P.2d 509, 515; Thomas v. State, 1991 OK CR 58, 811 P.2d 1337, 1342, cert. denied, 502 U.S. 1041, 112 S.Ct. 895, 116 L.Ed.2d 798 (1992).

¹³ Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1171; Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151-52, 60 L.Ed.2d 738 (1979).

¹⁴ 20 O.S.1991, § 3001.1.

¹⁵ Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

¹⁶ Hooks cites by analogy 12 O.S.1991, § 2613, governing admissibility of extrinsic evidence of prior inconsistent statements.

¹⁷ Omalza v. State, 1995 OK CR 80, 911 P.2d 286, 306.

¹⁸ Id.

¹⁹ Burks v. State, 1979 OK CR 10, 594 P.2d 771, 774, overruled in part on other grounds by Jones v. State, 1989 OK CR 7, 772 P.2d 922.

²⁰ The State admits this on appeal but suggests Hooks was "put on notice" that the evidence would be used. In the statement of evidence to be used to support the Bill of Particulars the State listed evidence of violent sex as well as sex with multiple partners. We cannot agree that this document, giving notice of second stage evidence offered to prove a single aggravating circumstance, was sufficient notice that Hooks would have to defend against this evidence of bad acts during the guilt/innocence phase of trial.

²¹ During the second stage the State offered evidence of multiple partners as well as violent intercourse to prove Hooks was a continuing threat. As the jury did not find that aggravating circumstance, we need not determine the admissibility of this evidence.

²² 22 O.S.1991, § 3001.1.

²³ Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (encouraging deadlocked juries to continue deliberations and reach a verdict).

²⁴ Lowenfeld v. Phelps, 484 U.S. 231, 240, 108 S.Ct. 546, 552, 98 L.Ed.2d 568 (1988); United States v. United States Gypsum Co., 438 U.S. 422, 462, 98 S.Ct. 2864, 2885-86, 57 L.Ed.2d 854 (1978). See also Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 406, 90 L.Ed. 350 (1946) (error in instruction not harmless where jurors were hung for seven hours but returned with guilty verdict five minutes after erroneous instruction).

²⁵ Mooney v. State, 1999 OK CR 34, 990 P.2d 875, 893; Drew v. State, 1989 OK CR 1, 771 P.2d 224, 229; Brogie v. State, 1985 OK CR 2, 695 P.2d 538, 545; Miles v. State, 1979 OK CR 116, 602 P.2d 227, 228. See also Kamees v. State, 1991 OK CR 91, 815 P.2d 1204, 1207 (instruction admonishing deadlocked jury not to surrender honest convictions proper); Lowenfeld, 484 U.S. at 241, 108 S.Ct. at 552 (no coercion where deadlocked jury instructed (a) not to surrender honestly held beliefs and (b) if jury could not reach a unanimous sentencing verdict trial court would impose life without parole).

²⁶ Mooney, 990 P.2d at 893 (where last Allen charge was two hours previous to instruction at issue, trial court erred in failing to admonish jury to hold to conscientiously held convictions).

²⁷ 21 O.S.1991, § 701.11.

²⁸ Malone v. State, 1994 OK CR 43, 876 P.2d 707, 713; Ellis v State, 1992 OK CR 45, 867 P.2d 1289, 1300-01, cert. denied, 513 U.S. 863, 115 S.Ct. 178, 130 L.Ed.2d 113 (1994); Sellers v. State, 1991 OK CR 41, 809 P.2d 676, 691, cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991); Boltz v. State, 1991 OK CR 1, 806 P.2d 1117, 1124-25, cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109; Fox, 779 P.2d at 573; Hale v. State, 1988 OK CR 24, 750 P.2d 130, 139-40, cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164; Johnson v. State, 1987 OK CR 8, 731 P.2d 993, 1005, cert. denied, 484 U.S. 878, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987). In McCarty v. State, 1995 OK CR 48, 904 P.2d 110, 125, we found the Allen instruction, coupled with a colloquy between trial court and foreman, was not coercive in the second stage; however, OUJI-CR (2d) 4-83 had not been promulgated and there was no other instruction option available to the trial court.

²⁹ 1997 OK CR 71, 951 P.2d 98, cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170 (1999).

³⁰ Gilbert, 951 P.2d at 103, n. 1.

³¹ Id. at 116.

³² Id.

³³ However, I note the errors in instruction were exacerbated by the egregious errors in argument discussed in Proposition II. I believe this dangerous combination warrants relief.

³⁴ Hooks also refers to a subsequent news article in which one juror said the holdout agreed to impose the death penalty given the confines of the law. This statement could not be used to challenge the verdict but we consider it to clarify our understanding of the jury's note.

³⁵ See, e.g., Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000); Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946); McDowell v. Calderon, 130 F.3d 833, 936-47 (9th Cir. 1997), cert. denied, 523 U.S. 1103, 118 S.Ct. 1575, 140 L.Ed.2d 807 (1998).

³⁶ Hooks's claim is supported by the prosecutors' flagrant misstatements of law in argument designed to convince jurors they must reach a sentencing verdict and that a hung jury was somehow illegal. Notwithstanding the fact that correct instructions were initially given, I would conclude the misstatements of law in closing argument, plus the subsequent errors in instructing the deadlocked jury, may have encouraged and perpetuated any jurors' misunderstanding of the law. In my judgment, in combination with the errors in Propositions II and VII, this proposition requires relief. My colleagues, however, unanimously disagree with me as to this matter and I yield to their collective wisdom.

³⁷ Cargle v. State, 1995 OK CR 77, 909 P.2d 806, 828-29, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996).

³⁸ 22 O.S.Supp.1999, § 984.

³⁹ Id.

⁴⁰ Hooper, 947 P.2d at 1104; Cargle, 909 P.2d at 828; 22 O.S.Supp.1999, § 984.

⁴¹ Cargle, 909 P.2d at 826.

⁴² 22 O.S.Supp.1999, § 984.

⁴³ Cargle, 909 P.2d at 829.

⁴⁴ Alverson, 983 P.2d at 519; Lewis v. State, 1998 OK CR 24, 970 P.2d 1158, 1176, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999); Hooper, 947 P.2d at 1104; Charm v. State, 1996 OK CR 40, 924 P.2d 754, 765, cert. denied, 520 U.S. 1200, 117 S.Ct. 1560, 137 L.Ed.2d 707 (1997); Cargle, 909 P.2d at 828 n. 15.

⁴⁵ Hooper, 947 P.2d at 1105; Payne v. Tennessee, 501 U.S. 808, 836, 111 S.Ct. 2597, 2614, 115 L.Ed.2d 720 (1991) (Souter, J., with whom Kennedy, J., joins, concurring).

⁴⁶ Anderson v. State, 1999 OK CR 44, 992 P.2d 409, 424; Alverson, 983 P.2d at 516; Le v. State, 1997 OK CR 55, 947 P.2d 535, 552, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998); Charm, 924 P.2d at 770.

⁴⁷ 1995 OK CR 25, 900 P.2d 389.

⁴⁸ Robinson, 900 P.2d at 401-02.

⁴⁹ Le, 947 P.2d at 554.

⁵⁰ Martinez v. State, 1999 OK CR 33, 984 P.2d 813, 830, cert. denied, ___ U.S. ___, 120 S.Ct. 1840, 148 L.Ed.2d 782 (2000).

⁵¹ I believe prosecutorial misconduct in the second stage infected the sentencing proceeding with unfairness and deprived Hooks of a fair sentencing hearing. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). The second stage argument was especially egregious, as the misstatements of law, combined with errors in instruction (see Proposition VII), suggested that a hung jury was somehow illegal. This may have led to a misconception among the majority of Hooks's jurors (see Proposition VIII). We have repeatedly condemned the Oklahoma County District Attorney's reliance on improper argument (see cases cited in Note 55). In addition to our warnings, federal reviewing courts have also repeatedly condemned Mr. Macy and prosecutors from his office for their habitual misconduct in argument. Fowler v. Ward, 200 F.3d 1302, 1314 (10th Cir. 2000); Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999); Trice v. Ward, 196 F.3d 1151, 1167-68 (10th Cir. 1999); Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999); Moore v. Gibson, 195 F.3d 1152, 1172-73 (10th Cir. 1998). This Court has let this flagrant disregard of our rulings pass too long. The second stage argument here contained several comments the prosecutors knew to be error, included for the purpose of inflaming the jury's passions and encouraging a sentencing verdict based on passion or prejudice rather than the evidence. The errors in argument, combined with the errors in instructing the deadlocked jury, prejudiced Hooks's ability to receive a fair sentencing hearing. I believe the misstatements of law regarding jury nullification deprived Hooks of his right to a properly instructed capital jury, and ought to result in relief even if the other comments did not render the proceedings as a whole fundamentally unfair. Paxton, 199 F.3d at 1216-17; Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). While I would remand the case for resentencing as a sanction for deliberate prosecutorial misconduct, my colleagues disagree. I yield to them on this issue.

⁵² Portuando v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000).

⁵³ In Subproposition B(6) Hooks cites an argument against mitigating evidence that does not appear in the transcripts in any argument. Accordingly the claim is not reviewed.

⁵⁴ 21 O.S.1991, § 701.11.

⁵⁵ Powell v. State, 2000 OK CR 5, 995 P.2d 510, 539; Washington v. State, 1999 OK CR 22, 989 P.2d 960, 978, 979 n. 18; Short v. State, 1999 OK CR 15, 980 P.2d 1081, 1105, cert. denied, ___ U.S. ___, 120 S.Ct. 811, 145 L.Ed.2d 683 (1999); Torres v. State, 1998 OK CR 40, 962 P.2d 3, 18, cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999); Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, 601, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999); Le, 947 P.2d at 554; Duckett v. State , 1995 OK CR 61, 919 P.2d 7, 19, cert. denied, 519 U.S. 1131, 117 S.Ct. 991, 136 L.Ed.2d 872 (1997); Robinson, 900 P.2d at 400; Mitchell v. State, 1994 OK CR 70, 884 P.2d 1186, 1202, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995); Jones v. State, 1987 OK CR 103, 738 P.2d 525, 529, 531. See also Powell, 995 P.2d at 542-43 (Chapel, J., dissenting) (noting prosecutors apparently chose to ignore Court's explicit warning, states "I believe we should no longer let this error pass.")

⁵⁶ Washington, 989 P.2d at 979.

⁵⁷ I recognize the majority of the Court finds this blatant disregard of our decisions not itself reversible. As stated above, but for my colleagues' votes, I would grant relief as a sanction for these deliberate violations of law.

⁵⁸ Alverson, 983 P.2d at 510; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693 (1984).

⁵⁹ Ullery v. State, 1999 OK CR 36, 988 P.2d 332, 351; Hooper, 947 P.2d at 1111.

⁶⁰ Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).

⁶¹ Le, 947 P.2d at 556.

⁶² Hooper, 947 P.2d at 1111.

⁶³ Le, 947 P.2d at 556.

⁶⁴ Alverson, 983 P.2d at 510.

⁶⁵ Hooks's Application for Evidentiary Hearing on Sixth Amendment Claims, filed February 29, 2000, is DENIED.

⁶⁶ 12 O.S.1991, § 2609.

⁶⁷ Gilbert v. State, 1988 OK CR 289, 766 P.2d 361, 363; Robinson v. State, 1987 OK CR 195, 743 P.2d 1088, 1091.

⁶⁸ Skelly v. State, 1994 OK CR 55, 880 P.2d 401, 407. As I indicated above, I believe the combination of errors in Propositions II, VII and VIII made the sentencing proceeding fundamentally unfair.

⁶⁹ Instruction 10 stated Hooks: (1) was a good son to his mother, never caused trouble at home, aided her financially and helped with farm chores; (2) was gainfully employed all his life; (3) worked in the community and volunteered labor for the elderly and poor; (4) volunteered help with gardens and cut firewood for others; (5) assisted neighbors and family members with money and labor; (6) was a good son to his father, was trustworthy and always there if needed; (7) cared for the family farm animals and neighbors' animals; (8) was a good brother to his eight siblings and would volunteer help for them; (9) was someone his siblings could always count on; (10) was a good brother-in-law to Linda Hooks, would houseclean and prepare her children's evening meal; (11) served his country for five years in the National Guard; (12) helped his brother, Earl, financially and with chores; (13) was one family member the family said they could always count on; (14) was loving, caring and kind until he became addicted to drugs; (15) volunteered many hours repairing and rebuilding the Holdenville Greater Shiloh Baptist church, and volunteered his time to repair the pastor's home and car; (16) started the integration process at Moss School without any problems and was always polite to teachers and staff; (17) helped a dying elderly neighbor by cutting his wood for the winter and feeding his livestock without pay.

⁷⁰ This Court did not have available to it certain documentary exhibits during the pendency of this appeal. These documentary exhibits, including the DNA printouts and reproductions of the "Honchos" bootprint, were thoroughly described and discussed in several witnesses' testimony. Examination of this physical evidence was not necessary to determine the resolution of the issues raised on appeal.

¶19 I am authorized to state Judge Lile joins in this writing.