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Steven Keith HATCH

 
 
 
 
 

 

 

 

   


A.K.A.: "Steve Lisenbee"
 
Classification: Murderer
Characteristics: Robbery - Rape
Number of victims: 2
Date of murders: October 15, 1979
Date of birth: 1954
Victims profile: Reverend Richard Douglass and his wife, Marilyn Douglass
Method of murder: Shooting (.357 magnum pistol)
Location: Okarche, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on August 9, 1996
 
 
 
 
 
 

Steven Hatch, a white man, was 26 when he was sentenced to death in Canadian County for the 1979 murders of the Rev. Richard and Marilyn Douglass of Okarche. The Douglasses' 2 children were shot and left for dead, but they recovered.

Hatch spent 16 years and 4 months on death row and was executed on Aug. 9, 1996. The Douglasses' then-adult children viewed the execution.

 
 

Steven Keith Hatch

In 1996, Oklahoma executed Steven Hatch for two murders committed by his severely mentally ill co-defendant Glen Ake in 1979.

Ake shot dead Reverend Richard Douglass and his wife, Marilyn Douglass, after the two men had robbed the Douglass home. Hatch had already left the house when Ake shot the couple. They were sentenced to death at separate trials.

Diagnosed with chronic paranoid schizophrenia, Glen Ake had initially been found incompetent to stand trial. After treatment in a mental hospital, he was ruled competent on the condition that he be treated with anti-psychotic medication during the proceedings.

In a landmark decision, his conviction and sentence were overturned by the US Supreme Court because, despite the fact that his sanity was a significant factor at the trial, the defence was denied access to expert psychiatric assistance.

At his retrial, Glen Ake was sentenced to life imprisonment. At Hatch's clemency hearing, his appeal lawyer asked if his execution would serve justice ''or vengeance because we can't reach the one who pulled the trigger?''

Attorney General Edmondson displayed a disturbing attitude towards the execution of the mentally ill when he countered that the injustice was not that Hatch would be executed, but that Ake would not. Glen Ake remains in Oklahoma State Penitentiary, where Hatch was put to death in August 1996.

 
 

Steven Hatch

The impulse for revenge is potent and natural. "When someone is executed who killed a member of your family," says Brooks Douglass, "vengeance is a part of the emotions that everyone feels."

In 1979, when Douglass was 16 years old, two drifters entered the Douglass family farmhouse in Okarche, Okla., as Brooks, his parents, and his 12-year-old sister, Leslie, were sitting down to dinner. The two men, Glen Burton Ake and Steven Keith Hatch, hogtied Brooks and his parents in the living room. The family was forced to listen as the men raped Leslie in a bedroom. Then, the men sat down to eat the family's hamburger patties and mushroom gravy. Ake shot all four Douglasses in the back, before leaving with $43 in cash and the wedding rings from Brooks's parents.

Their parents died, but Brooks and Leslie survived to begin 18 years of anguish. Brooks testified seven times in the seven years after the attack, reliving that terrible night each time. Ake was sentenced to life in prison while Hatch got the death penalty.

Last August, Douglass watched Hatch's execution, an experience that evoked powerfully conflicting emotions. As Hatch died, Douglass felt as if he were watching two scenes simultaneously, his parents' deaths and that of their murderer. Before the execution, he agonized over the death penalty; afterward, he felt as if death had come too easily for Hatch.

The grieving process for a murder victim is somewhat like that for anyone else: disbelief, anger, grief, and then, finally for some, acceptance. But survivors of homicide victims rarely move easily through these stages. Murder often taps a well of rage that can drown out all other emotions.

 
 

The facts

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.

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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

 

 

 
 
 
 
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