On the evening of October 15, 1979, in search of a
suitable house to burgle, Glen Burton Ake and his accomplice, Steven
Keith Hatch, a/k/a Steve Lisenbee, drove their borrowed car to the
rural home of Reverend and Mrs. Richard Douglass.
Ake gained entrance into the Douglass' home under
the pretense that he was lost and needed help finding his way. After
an initial conversation with sixteen-year-old Brooks Douglass in the
entrance way of the Douglass' home, Ake returned to his car,
supposedly to get a telephone number. Ake thereupon re-entered the
house and produced a firearm. He was joined shortly afterwards by his
accomplice, who also was armed.
Ake and his accomplice Hatch ransacked the
Douglass' home as they held the family at gunpoint. They bound and
gagged Reverend Douglass, Mrs. Douglass and Brooks Douglass, and
forced them to lie in the living room floor.
The two men then took turns attempting to rape
twelve-year-old Leslie Douglass in a nearby bedroom. Having failed in
their attempts, they bound and gagged Leslie, and forced her to lie in
the living room floor with the other members of her family.
Throughout the episode, the Ake and his accomplice
Hatch repeatedly threatened to kill all the members of the Douglass
family, and covered their heads with articles of clothing as they lay
helpless on the floor.
Ake instructed his accomplice Hatch to go outside,
turn the car around, and "listen for the sound." Steven Hatch left the
house as he was told. Ake then shot Reverend Douglass and Leslie each
twice with a .357 magnum pistol, Mrs. Douglass once, and Brooks once;
and fled.
Mrs. Douglass died almost immediately as a result
of the gunshot wound. Reverend Douglass' death was caused by a
combination of the gunshots he received, and strangulation from the
manner in which he was bound. Leslie and Brooks managed to untie
themselves and drive to the nearby home of a doctor.
Ake and his accomplice Hatch were apprehended in
Colorado following a month-long crime spree which took them through
Arkansas, Louisiana, Texas, and much of the Western half of the United
States.
HATCH v. STATE
1983 OK CR 47
662
P.2d 1377
Case Number: F-80-302
Decided: 04/12/1983
STEVEN KEITH
HATCH A/K/A STEVE LISENBEE, APPELLANT,
v.
THE STATE OF OKLAHOMA,
APPELLEE
Oklahoma Court of
Criminal Appeals
An Appeal from
the District Court of Canadian County; Floyd L. Martin, District
Judge.
Steven Keith
Hatch, a/k/a Steve Lisenbee, appellant, was convicted in Canadian
County District Court of two counts of Murder in the First Degree, and
two counts of Shooting with Intent to Kill. He was sentenced to
forty-five (45) years' imprisonment for each count of shooting with
intent to kill; and sentenced to death for each of the murder counts.
The judgments on all four charges are AFFIRMED. The sentences for
Shooting with Intent to Kill are AFFIRMED. The sentences of death are
VACATED and the cause REMANDED to the Canadian County District Court
for resentencing.
Mark Lea (Beau)
Cantrell, Stephen P. McCloy, Oklahoma City, for appellant.
Jan Eric
Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief,
Criminal Appellate Div., Oklahoma City, for appellee.
OPINION
BUSSEY, Presiding
Judge:
[662 P.2d 1379]
¶1 The appellant,
Steven Keith Hatch a/k/a Steve Lisenbee, stands convicted of two
counts of Murder in the First Degree, and two counts of Shooting with
Intent to Kill. The appellant was tried in Canadian County District
Court before the Honorable Floyd Martin, without a jury. The appellant
was sentenced to death for each of the murder counts; and forty-five
(45) years' imprisonment for each of the charges of shooting with
intent to kill. We affirm the appellant's convictions on all charges,
and affirm the sentences imposed for shooting with intent to kill. We
conclude, however, that the sentences of death must be vacated and
remanded for reconsideration by the trial court below.
¶2 The sordid
details of the crimes perpetrated by the appellant and his accomplice,
Glen Burton Ake, a/k/a Johnny Vandenover, are set forth in detail in
Ake v. State, 663 P.2d 1, 54 OBAJ ____ (1983).
I. PRE-TRIAL
¶3 The appellant
alleges numerous errors occurred prior to the commencement of his
trial. First, he argues that a change of venue should have been
granted. As [662 P.2d 1380] noted above, however, this case was tried
before a judge, the appellant having waived his right to a jury trial.
The change of venue question is more properly addressed to situations
in which a defendant is to be tried before a jury.2
Nonetheless, the appellant has failed to preserve the error in his
motion for new trial. He has thus waived the issue. Turman v. State,
522 P.2d 247 (Okl.Cr. 1974).
¶4 Secondly, the
appellant argues that the judge before whom he was tried should have
disqualified himself from the case due to bias on the judge's part.
¶5 The appellant
failed to follow the proper statutory procedure to disqualify the
judge. According to 20 O.S. 1981 § 1403 [20-1403],
Any party to any
cause pending in a court of record may in term time or in vacation
file a written application with the clerk of the court, setting forth
the grounds or facts upon which the claim is made that the judge is
disqualified, and request said judge so to certify, after reasonable
notice to the other side, same to be presented to such judge, and upon
his failure so to do, within three (3) days before said cause is set
for trial, application may be made to the proper tribunal for mandamus
requiring him so to do.
No application
was filed in this case. Strict compliance with this section is
required before a trial judge will be disqualified. Passmore v. State,
87 Okl.Cr. 391, 198 P.2d 439 (1948).
¶6 Additionally,
the appellant failed to object to the judge's alleged bias at trial.
¶7 In this vein,
the appellant argues that trial counsel did not render effective
assistance of counsel, because he failed to comply with the applicable
statutes to disqualify the judge. The argument must fail, because the
appellant has not proven that the judge in this case was biased. The
mere fact that the judge held himself out to be a minister of the same
faith for which one of the victims was a minister does not persuade us
that he was biased or prejudiced against the appellant. Likewise,
neither do the excerpts from the transcript of the sentencing stage in
which the judge gave consideration to the fact that the victims were
involved in the ministry,3 nor the [662 P.2d 1381] fact
that the judge was subsequently seen embracing one of the surviving
victims, indicate that the judge was biased against the appellant.
¶8 The case upon
which the appellant primarily relies to support his argument,
Castleberry v. Jones, 68 Okl.Cr. 414, 99 P.2d 174 (1940), is
distinguishable from the present case. In Castleberry, the judge who
presided over the defendant's trial was clearly biased against the
defendant. The judge and the defendant were "personal political
enemies." The judge had been heard to make statements that he could
stir up public sentiment and have the defendant "run out of town" in
retaliation for the defendant's attempt to defeat the judge in an
election. Obviously there is no bias in this case even remotely
analogous to that displayed in Castleberry.
¶9 The appellant
has failed to establish any prejudice on the part of the trial court.
Thus, it would have merited trial counsel nothing to attempt to
disqualify the judge. Failure to press meritless claims do not
constitute ineffective assistance of counsel. See generally, United
States v. Homan, 482 F. Supp. 344 (E.D.Okl. 1977). The inadequacy of
counsel argument is without foundation.
¶10 The
appellant's fifth allegation of error consists of three subparts in
which he alleges fundamental error occurred.
¶11 First, he
argues that the trial judge did not have the power to decide questions
of fact in his trial. This argument is based on the fact that Article
VII, Section 20 of the Oklahoma Constitution, which provided trial
judges with the power to try facts in felony cases, was repealed in
1967. We have held numerous times since that time that a judge may try
a case upon a valid waiver by the defendant. Colbert v. State, 654
P.2d 624, (Okl.Cr. 1982) (and cases cited therein).
¶12 Secondly, the
appellant alleges that the waiver of his right to trial by jury was
not knowingly and intelligently made. This allegation is patently
frivolous. On April 9, 1980, the appellant appeared in person, and
with counsel before Judge Floyd Martin for the express purpose of
waiving his right to a jury trial. Judge Martin painstakingly and
carefully examined the appellant personally at length to determine
whether the waiver was knowing and intelligent. In addition, the
appellant's attorney openly examined the appellant to confirm that the
waiver was knowing and voluntary. Judge Martin was satisfied, as are
we from a reading of the record, that the appellant completely
understood the nature and consequences of his waiver. There was no
error. See, Hayes v. State, 541 P.2d 210 (Okl.Cr. 1975).
¶13 Thirdly, the
appellant alleges he received ineffective assistance of counsel
because trial counsel failed to insist the State and Judge join in on
the appellant's waiver. The transcript referred to above reveals that
both the prosecutor and the judge stated they had no objection to the
waiver. The requirement of consent by the State and judge as set forth
in Crawford v. Brown, 536 P.2d 988 (Okl.Cr. 1975) was met.
Accordingly, the claim of ineffective assistance of counsel fails.
II. THE
CONVICTIONS
¶14 The appellant
argues in allegation number six that the convictions on the two counts
of murder and the two counts of shooting with intent to kill were
against the weight of the evidence.
¶15 The evidence
adduced at trial revealed that the appellant voluntarily entered the
Douglass' home, armed with a shotgun, knowing that his accomplice
(Ake) was also armed. They bound and gagged the family. One of the
victims was bound in such a manner that strangulation contributed to
his death. The appellant held the family at gunpoint as Ake ransacked
their home. The surviving witnesses testified the appellant and Ake
discussed killing the family. The appellant left the house when Ake
told him to go outside, turn the car around, and [662 P.2d 1382]
"listen for the sound." It is hard to imagine what other meaning the
appellant could have attributed to "listen for the sound" were it not
to denote the sound of gunfire.
¶16 Both the
appellant's testimony at trial and Ake's confession indicated that the
appellant tried to convince Ake not to kill the family before the
appellant went out to the car. Additionally, both maintained that the
appellant's weapon was unloaded throughout the ordeal.
¶17 It was the
province of the trial court, sitting as trier of fact, to weigh the
evidence, determine the facts, resolve conflicts and believe or
disbelieve any witness' testimony. We see no reason to interfere with
the trial court's judgment.
¶18 However, even
if the appellant's assertions are true, we cannot say that he
exonerated himself from guilt for acts committed in the desperate
situation he and Ake conjointly created. According to 21 O.S. 1981 §
172 [21-172],
All persons
concerned in the commission of crime, whether it be felony or
misdemeanor, and whether they directly commit the act constituting the
offense, or aid and abet in its commission, though not present, are
principals.
¶19 Additionally,
in Jemison v. State, 633 P.2d 753 (Okl.Cr. 1981), we stated:
The rule of law
is well established that when a conspiracy is entered into to do an
unlawful act, the conspirators are responsible for all that is said or
done pursuant to the conspiracy by their coconspirators until the
purpose has been fully accomplished. If two or more persons conspire
or combine to commit a felony, each is criminally responsible for the
acts of his associates and confederates in furtherance of the common
design, if the criminal act thoroughly results from the common
enterprise, or where the connection between them is reasonably
apparent. Fox v. State, 524 P.2d 60 (Okl.Cr. 1974). In Fox, citing
from Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435
(1954), we stated:
`Aiding,
abetting, and counselling are not terms which presuppose the existence
of an agreement. Those terms have a broader application, making the
defendant a principal when he consciously shares in the criminal act,
regardless of the existence of a conspiracy.' At 755-56.
¶20 Thus, the
appellant, having together with Ake created a situation inherently
dangerous to human life, cannot now disclaim responsibility for Ake's
acts. See Oxendine v. State, 350 P.2d 606 (Okl.Cr. 1960). The trial
court correctly found the appellant guilty of all four charges.
III. THE DEATH
SENTENCES
¶21 The trial
court found the appellant guilty of the two counts of murder based on
the felony murder rule as codified in 21 O.S. 1981 § 701.7
[21-701.7](B). Likewise, he found the appellant's culpability
justifying the imposition of the death sentences based on the
felony-murder doctrine. However, since that time, the Supreme Court
addressed a similar issue in Enmund v. Florida, ___ U.S. ___, 102
S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
¶22 Enmund was
sentenced to death for his role in a robbery-murder. Enmund planned
the robbery of two persons at their rural farmhouse. He sat in the
get-away car approximately one-half (1/2) mile down the road from the
victims' home while his two accomplices conducted the robbery. The
murders were precipitated when one of the robbery victims, in response
to her husband's accomplices conducted the robbery. The murders were
precipitated when one of the robbery victims, in response to her
husband's cry for help, fired upon Enmund's accomplices with a rifle.
Enmund's accomplices engaged in a gun battle with the two victims,
which resulted in the death of both victims and the wounding of one of
the accomplices.
¶23 In
determining that Enmund's sentences of death were inconsistent with
the Eighth and Fourteenth Amendments, the Supreme Court said,
Enmund did not
kill or intend to kill and thus his culpability is plainly different
from that of the robbers who killed; yet the state treated them alike
and attributed to Enmund the culpability of [662 P.2d 1383] those who
killed the Kerseys. This was impermissible under Eighth Amendment.
* * * * * *
The focus must be
on his culpability, not on that of those who committed the robbery and
shot the victims, for we insist on `individualized consideration as a
constitutional requirement in imposing the death sentence,' Lockett v.
Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978)
(footnote omitted), which means that we must focus on `relevant facets
of the character and record of the individual offender.' Woodson v.
North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944
(1976). 102 S.Ct. at 3377.
¶24 We do not
read Enmund to be an absolute ban on imposition of the death penalty
on one who is convicted of first degree murder through the vehicle of
the felony murder doctrine. Indeed, the Supreme Court further stated
in Enmund,
It would be very
different if the likelihood of a killing in the course of a robbery
were so substantial that one should share the blame for the killing if
he somehow participated in the felony. 102 S.Ct. at 3378.
However, in light
of Enmund, we deem it necessary for the sentencer to give greater
attention to the evidence concerning the appellant Hatch's individual
participation and intent in the events which culminated in the
murder/shootings.4
¶25 Thus, we
vacate the sentences of death and remand the cases to the Canadian
County District Court for resentencing not inconsistent with Enmund v.
Florida, supra, and this opinion. See, Order Remanding Conviction to
Trial Court, Eddings v. Oklahoma, Case No. C-78-325 (February 23,
1982).
IV.
CONSTITUTIONALITY OF 21 O.S. 1981 § 701.7 [21-701.7] ET SEQ.
¶26 In his first
assignment of error, the appellant argues the Oklahoma murder statutes
are unconstitutional under Article 5, § 57 [5-57] of the Oklahoma
Constitution because of the manner of their enactment. Article 5, § 57
[5-57], reads in pertinent part, "Every act of the Legislature shall
embrace but one subject, which shall be clearly expressed in its title
. . ."
¶27 In Ex Parte
Lee, 88 Okl.Cr. 386, 203 P.2d 720 (1949), this Court stated in the
syllabus,
2. Where it is
contended that a legislative act is in violation of the constitutional
provision prohibiting statute from containing more than one subject
(Section 57 Article 5 Okl.Const.) the objection should be grave and
the conflict in the terms of the statute should be plain or palpable
before the judiciary should destroy a legislative enactment. Where
there is a doubt as to the constitutionality of the act, it should be
sustained.
3. To constitute
plurality of subject, an act must embrace two or more dissimilar and
discordant subjects, so that by no fair intendment can they be
considered as having any legitimate connection with or relation to
each other.
4. A statute may
include every matter germane, referable, auxiliary, incidental, or
subsidiary to, and not inconsistent with, or foreign to, the general
subject or object of the act.
5. The purpose of
the constitution declaring that every act shall embrace but one
subject, which shall be expressed in its title was not to hamper
legislation but to check and prevent deception.
See also, Jones
v. State, 542 P.2d 1316 (Okl.Cr. 1975) at 1332.
¶28 An
examination of the title of the bill enacting 21 O.S. 1981 §§ 701.7
[21-701.7] et seq., and its contents reveals that it addresses the
crimes of first and second degree murder, [662 P.2d 1384] punishments
therefore, and certain procedures connected therewith. These contents
are germane to the prohibition of and punishment for the crimes of
murder. The statute, as enacted, satisfy the principles espoused in Ex
Parte Lee. Title 21 O.S. 1981 § 701.7 [21-701.7] presents no
constitutional infirmity under Article 5, § 57 [5-57].
¶29 The appellant
would have us declare 21 O.S. 1981 §§ 701.7 [21-701.7] (A) and
701.7(B) unconstitutional on two additional grounds.
¶30 According to
the appellant's first theory, those who are convicted of Murder in the
First Degree under Section 701.7(B),5 may suffer the
punishment of death with a lesser degree of intent being proven than
those convicted under Section 701.7(A);6 thereby
unconstitutionally creating classes of defendants.
¶31 We see no
equal protection problems in those statutes. There is nothing in our
State or Federal constitutions to dictate what the definition of First
Degree Murder shall be. Both 701.7(A) and 701.7(B) are rooted in the
common law. Section 701.7(B), however, departs from the commonlaw
felony murder doctrine to the extent that only the felonies enumerated
in the statute may substitute for the malice afore-thought element in
a first-degree murder prosecution. These felonies are all crimes
which, by their very commission, pose a threat to human life.
¶32 The
legislature's definition of murder in 701.7(B) is a reflection of the
policy that one who, by his wilfull criminal conduct, sets in motion a
chain of events so perilous to the sanctity of human life that death
results therefrom; must bear the ultimate responsibility for his
actions. We agree with the legislature that murders effected in such a
manner are as abhorrent as those which are premeditated. Proscribing
such actions under our first-degree murder statutes performs the
rational function of deterring the commission of felonies so
inherently dangerous as to create forseeable risks of death. We
decline to hold that the Oklahoma murder statutes unconstitutionally
elevate murder caused in the commission of the enumerated felonies to
the status of first degree murder.7
¶33 Moreover,
contrary to the appellant's second argument on the constitutionality
of our death penalty statutes, the Oklahoma murder and capital
sentencing statutes are procedurally sound under the doctrine of Gregg
v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
¶34 The
procedural safeguards built into our capital punishment statutes
ensure that the sentence of death is not imposed in an arbitrary and
capricious manner. Title 21 O.S. 1981 §§ 701.10 [21-701.10] through
701.12 [21-701.12] ensure that each defendant is given intensive
individual consideration before the sentencing decision may be made.
Lastly, Section 701.13 requires this Court to scrutinize the record
for error, passion, prejudice and other arbitrary factors; to ensure
the evidence supports the sentence of death; and to determine whether
the sentence is excessive or disproportionate. We find no
constitutional shortfalls in the statutes.
V. CONCLUSION
¶35 Lastly, the
appellant's eleventh assignment of error is that the accumulation of
[662 P.2d 1385] error which accrued throughout the trial dictates that
the case be reversed. We have held numerous times that, if a
defendant's assignments of error are found to be without merit, the
argument which asks that they be considered collectively is likewise
meritless. Brinlee v. State, 543 P.2d 744 (Okl.Cr. 1975); Haney v.
State, 503 P.2d 909 (Okl.Cr. 1972). Thus, although we find that the
sentences of death must be vacated and remanded for reconsideration,
no error occurred, cumulative or otherwise, to justify further
reversal or modification of the appellant's judgments and sentences.
CORNISH and
BRETT, JJ., concur.
Footnotes:
1
Therefore, we need not consider the appellant's seventh, ninth and
tenth allegations of error.
2
The ultimate question confronting a trial judge in deciding a motion
to change venue based on pretrial publicity is whether it is possible
to select a fair and impartial jury from the venire panel. The wording
of the venue statute, 22 O.S. 1981 § 561 [22-561] lends support to
such a conclusion. See also, Dean v. Stone, 2 Okl. 13, 35 P. 578
(1894).
We realize,
however, that the appellant waived the right to be tried by a jury
after the motion for change of venue was overruled. It is quite
possible that the election to be tried by the judge was a product of
the judge's failure to sustain the motion to change venue. However, in
this regard, we find the following language from Brisbin v. Schauer,
176 Col. 550, 492 P.2d 835 (1972), persuasive:
Nowhere did he
(the defendant) complain that he could not obtain a fair trial before
the trial judge. Under such circumstances the issue of whether the
change of venue should have been granted became moot. If appellant
desired to attack the validity of the ruling on his motion for change
of venue because he could not receive a fair and impartial jury, he
should have proceeded to a jury trial and then appealed if the result
returned was unfavorable to him. 492 P.2d at 836.
3
The remarks of which the appellant complains were made as the judge
was delineating his findings of the aggravating circumstances;
This Court is
aware that Ministers of the Gospel have given their total being to
God. They have dedicated their lives to services of God in ministering
to the needs of their fellow man. A Minister's wife, it seems to me,
has a very unique position of dedication in assisting her husband in
his own service to God, in addition to her separate beliefs and in
individual commitments. The minor children in such a family are reared
up on the way they should go and it becomes their nature to respond
when a person in need asks for help. This Court believes that the
killing of the Minister and his wife in the performance of a requested
service is extremely wicked, shockingly evil, outrageously wicked and
vile, showing that this case has a design to inflict a high degree of
pain with utter indifference to the suffering of others.
These comments
reflect the horror with which the judge viewed the crimes perpetrated
by the appellant and his accomplice, and demonstrate his reasoning
supporting his finding that the murders were especially heinous,
atrocious or cruel. 21 O.S. 1981 § 701.12 [21-701.12](4). They did not
however, reflect any bias toward the appellant himself.
4
The majority in Enmund classifies Oklahoma as one of nine
jurisdictions in which a vicarious felony murderer may be sentenced to
death absent an intent to kill, if sufficient aggravating
circumstances exist. Of course, as provided in 21 O.S. 1981 § 701.11
[21-701.11] the aggravating circumstances must outweigh the mitigating
circumstances. Certainly the degree of participation in the entire
chain of events may be presented in mitigation of the degree of
punishment to be imposed. It is not, however, an absolute or
conclusive mitigating factor.
5
21 O.S. 1981 § 701.7 [21-701.7](B) provides;
A person also
commits the crime of murder in the first degree when he takes the life
of a human being, regardless of malice, in the commission of forcible
rape, robbery with a dangerous weapon, kidnapping, escape from lawful
custody, first degree burglary or first degree arson.
6
21 O.S. 1981 § 701.7 [21-701.7](A) provides;
A person commits
murder in the first degree when he unlawfully and with malice
aforethought causes the death of another human being. Malice is that
deliberate intention unlawfully to take away the life of a human
being, which is manifested by external circumstances capable of proof.
7
We would additionally note that the Oklahoma codification of the
felony murder rule is by no means unique. According to the State's
brief, 41 of our sister states have categorized as first degree murder
the killing of a human being during the commission of a felony.
(State's Brief 51-52). Thus, this fact amply satisfies the Supreme
Court's concerns in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53
L.Ed.2d 982 (1977), and the language of Gregg v. Georgia, 428 U.S.
153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) cited therein.
76 F.3d
392
Steven K. HATCH, Petitioner-Appellant,
v.
Dan REYNOLDS, Respondent-Appellee.
No.
95-6072.
United States Court of Appeals, Tenth Circuit.
Feb.
12, 1996.
Before PORFILIO, KELLY, and LUCERO, Circuit
Judges.
ORDER AND
JUDGMENT1
Petitioner Steven
K. Hatch appears pro se. He appeals the district court's order
adopting the magistrate judge's recommendation to deny this petition
for writ of habeas corpus, filed pursuant to 28 U.S.C. 2254.
Petitioner challenges his convictions on two counts of shooting with
intent to kill for which he was sentenced to forty-five years'
imprisonment on each count. This court has previously granted a
certificate of probable cause. We have jurisdiction over this appeal
pursuant to 28 U.S.C. 1291. We affirm.
The petitioner's
two convictions before us for our consideration, and two related
felony-murder convictions, arose from an October 15, 1979 episode in
which he and another man bound and gagged a family of four, ransacked
their home, and attempted to rape the twelve-year-old daughter.
As petitioner
left the victims' house to get the car, his accomplice shot all four
victims. Both parents died. The two children survived. Petitioner was
sentenced to death on each felony-murder conviction. This court
considered and rejected petitioner's challenges to the felony-murder
convictions and death sentences in Hatch v. Oklahoma, 58 F.3d 1447
(10th Cir.1995); those matters are not before us.
We consider
petitioner's convictions for shooting the two children with intent to
kill. He claims those convictions are constitutionally infirm for the
following reasons: (1) the evidence was insufficient to prove his
criminal intent, (2) the trial court improperly excluded the testimony
of a defense witness, (3) the trial court mistakenly believed
petitioner previously had been convicted of arson, (4) petitioner
received ineffective assistance of counsel at trial, and (5) the trial
court failed to hold a competency hearing required by state statute.
Petitioner has
not pursued on appeal the following two issues raised in the district
court: insufficiency of the evidence to support petitioner's status as
a "principal in the commission of the crimes," and the trial judge's
failure to recuse. Defendant has waived those issues. See State Farm
Fire & Casualty Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th
Cir.1994)(failure to raise issue in opening brief waives it).
Petitioner
concedes that his failure to raise issues two and five in the Oklahoma
state courts precludes him from bringing them in this federal habeas
proceeding, unless he can show cause and prejudice for his default, or
that failure to consider the claims will result in a fundamental
miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750
(1991)(state prisoner's default in state court bars federal habeas
review unless he can demonstrate cause and prejudice, or fundamental
miscarriage of justice if claims are not considered). The miscarriage
of justice exception is explicitly tied to the petitioner's innocence.
Schlup v. Delo, 115 S.Ct. 851, 864 (1995).
Petitioner
maintains that because he has demonstrated his actual innocence "based
upon the absence of an essential element of the crimes charged,
intent," appellant's br. at 2, he is not barred from bringing his
claims. He relies on Schlup as authority to overcome Coleman 's
procedural bar, claiming his assertion of innocence coupled with a
claim of constitutional error permits our review of these claims.
Petitioner has failed, however, to allege any new evidence of
innocence.
"Without any new
evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not in itself sufficient to establish a
miscarriage of justice that would allow a habeas court to reach the
merits of a barred claim." Schlup, 115 S.Ct. at 861; see also Klein v.
Neal, 45 F.3d 1395, 1400 (10th Cir.1995)(petitioner must show actual
or factual innocence, as opposed to legal innocence, to come within
very narrow exception for fundamental miscarriage of justice).
Accordingly, we
conclude that issues two and five--whether a defense witness was
improperly excluded and the failure to hold a competency hearing--are
procedurally barred. Consequently, we do not consider their merits.
Schlup, 115 S.Ct. at 862-63 (habeas court ordinarily may not reach
merits where petitioner has failed to show cause and prejudice or
miscarriage of justice).
We next consider
whether the evidence was sufficient to establish petitioner's guilt
for the crime of shooting with intent to kill. "[T]he relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord Scrivner v.
Tansy, 68 F.3d 1234, 1239 (10th Cir.1995). Our inquiry is limited to
evidence in the record, and we cannot make our own determination of
guilt or innocence. Herrera v. Collins, 506 U.S. 390, 402 (1993).
Petitioner's
culpability for the shootings is based on the acts of his accomplice
who pulled the trigger. Okla. Stat. tit. 21, 172 provides: "All
persons concerned in the commission of a crime, whether it be felony
or misdemeanor, and whether they directly commit the act constituting
the offense, or aid and abet in its commission, though not present,
are principals." The crime of shooting with intent to kill is the
intentional and wrongful shooting of another with intent to kill. Id.
652 (amended 1987).
It is unnecessary
to repeat the details of the crime because they were stated by the
magistrate judge and the district court in this case, as well as by
other courts. See, e.g., Hatch, 58 F.3d at 1451; Ake v. State, 663
P.2d 1, 4 (1983)(accomplice's direct criminal appeal), rev'd, 470 U.S.
68 (1985). Briefly, petitioner entered the house with a firearm, bound
and gagged the victims, held them at gunpoint while his accomplice
ransacked the house, and went to get the car after his accomplice told
him to do so and to "listen for the sound."
Petitioner claims
that his accomplice did not say those words. He asserts his lack of
intent is demonstrated by the following evidence: petitioner took
precautions to ensure that the victims did not see his face, he
berated his accomplice for attempting to rape the daughter, the
accomplice made a statement that it was his idea to shoot the victims,
and petitioner testified that he did not intend for the victims to be
shot. The surviving victims testified that petitioner and his
accomplice discussed killing the family. They also stated that the
accomplice told petitioner to "listen for the sound."
Petitioner left
the house knowing that his accomplice was going to kill the family.
"It is hard to imagine what other meaning [petitioner] could have
attributed to 'listen for the sound' were it not to denote the sound
of gunfire." Hatch v. State, 662 P.2d 1377, 1382 (Okla.Crim.App.1983).
Even if the accomplice later attempted to exonerate him, petitioner
conspired with him to create the situation in which the victims were
shot.
The trial judge,
as trier of fact, weighed and resolved any conflicts in the evidence.
We do not reweigh the evidence or consider witnesses' credibility, but
must affirm the conclusion of the trier of fact if it is reasonable.
Romero v. Tansy, 46 F.3d 1024, 1032 (10th Cir.), cert. denied, 115
S.Ct. 2591 (1995). Our review of the record convinces us that a
rational finder of fact could have found beyond a reasonable doubt
that petitioner aided and abetted the accomplice in the intentional
and wrongful shooting of the victims with the intent to kill.
We turn to
petitioner's claim that, at sentencing for the murder convictions, the
trial court considered a prior arson conviction, even though
petitioner had not been convicted of arson. Any errors in that
proceeding are not before us. Although petitioner claims that the
erroneous arson conviction may have entered into the trial judge's
consideration before that time, there is nothing in the record to
suggest that it did. Accordingly, we perceive no constitutional
violation.
Finally, we
address whether petitioner received ineffective assistance of counsel
at trial. He has abandoned his claim that his appellate counsel
provided ineffective assistance. He alleges (1) the trial attorney
failed to overcome the trial court's ruling to exclude the testimony
of a proffered defense witness, (2) the pretrial investigation and
pretrial motions were inadequate, and (3) the attorney failed to
pursue or to advocate zealously petitioner's defense that he did not
intend the shootings. Petitioner also claims generally that his
attorney's trial performance was incompetent.
We review de novo
the ultimate question of whether a defendant received ineffective
assistance of counsel. Romero, 46 F.3d at 1028. To establish a claim
of ineffective assistance of counsel, petitioner must demonstrate both
that counsel's performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); Romero, 46 F.3d at 1028-29. Allegations that are conclusory in
nature and not supported with factual averments will not support a
claim of ineffective assistance of counsel. United States v. Fisher,
38 F.3d 1144, 1147 (10th Cir.1994).
Petitioner
complains that his attorney was ineffective because the trial judge
excluded the testimony of a defense witness. The record reflects, and
petitioner admits, that the attorney attempted to elicit the witness's
testimony, but the trial judge ruled against the defense. An
attorney's performance is not ineffective solely because the trial
judge made an adverse ruling.
We have held
previously that petitioner failed to demonstrate that his trial
attorney's pretrial investigation and representation were ineffective.
Hatch, 58 F.3d at 1457. Here, as there, "petitioner does not state
what exculpatory evidence an adequate investigation [or adequate
pretrial motions] would have discovered or how this evidence would
have affected the outcome of the innocence/guilt phase of the trial."
Id. (footnote omitted).
Similarly,
petitioner's general allegations that his trial attorney's
representation was incompetent do not meet the Strickland standard.
Accordingly, we conclude petitioner has failed to establish that his
Sixth Amendment right to the effective assistance of counsel was
violated.
The judgment of
the United States District Court for the Western District of Oklahoma
is AFFIRMED. The mandate shall issue forthwith.
*****
1
The case is
unanimously ordered submitted without oral argument pursuant to the
applicable rules. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3
