JOHN MICHAEL HOOKER, Petitioner-Appellant,

v.

MIKE MULLIN, Warden, Oklahoma State Penitentiary;

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 97-CV-284-C) .

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

BRORBY, Senior Circuit Judge.

An Oklahoma jury convicted John Michael Hooker for the first degree murders of his common-law wife, Sylvia Stokes, and her mother, Drucilla Morgan. In accordance with the verdict, the Oklahoma district court sentenced him to death. He appeals the denial of his federal habeas corpus petition seeking to overturn those convictions and sentences. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c), we affirm the district court's denial of habeas corpus relief.(1)

BACKGROUND

The facts were well-summarized by the Oklahoma Court of Criminal Appeals in reviewing Mr. Hooker's direct appeal. Hooker v. State, 887 P.2d 1351 (Okla. Crim. App. 1994), cert. denied, 516 U.S. 858 (1995). We will restate the pertinent facts.

Mr. Hooker and Ms. Stokes lived together for eight years and had three children. Their relationship was turbulent; they frequently separated and reconciled. It was also a violent relationship. Prior to the murders, Mr. Hooker threatened and attacked Ms. Stokes, once inflicting severe head lacerations.

Five months before her murder, Ms. Stokes obtained a Victim Protective Order against Mr. Hooker. At that time, she expressed fear he would harm her and stated she did not want to be "like the others dead." Mr. Hooker distrusted Ms. Stokes. He was angry every time they broke up and was jealous when other men paid attention to her. When he was drinking, he talked about killing her. He also resented Ms. Morgan and indicated he would "get" both of them.

In early 1988, Mr. Hooker, Ms. Stokes and their three children lived at the Providence Apartments in Oklahoma City. In late March, Ms. Stokes and the children moved out of the apartment they shared with Mr. Hooker because Ms. Stokes was afraid Mr. Hooker might harm her and the children.

They moved in with Ms. Morgan, who lived in the same apartment complex. On March 27, 1988, Mr. Hooker repeatedly visited the Morgan apartment, attempting to persuade Ms. Stokes to return to his apartment. She refused, and Mr. Hooker returned to his apartment alone. Later that afternoon, neighbors saw Ms. Morgan and Ms. Stokes entering Mr. Hooker's apartment.

Two women in the apartment below Mr. Hooker's apartment heard bumping and thumping noises, like someone rapidly moving furniture and throwing things. Although they heard no voices, they prayed about the noises because they thought Mr. Hooker and Ms. Stokes were fighting again. Other witnesses saw Mr. Hooker with blood on his clothing, apparently after he left the apartment.

The next day, Cynthia Stokes went to Mr. Hooker's apartment to check on her mother and sister. She pushed the door open slightly and saw her mother lying on the floor in a pool of blood. The police found Ms. Morgan and Ms. Stokes in the apartment. Both women died of multiple stab wounds.

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

The jury convicted Mr. Hooker of two counts of first degree murder. At the second stage of trial, defense counsel stipulated (1) Mr. Hooker had prior violent felony convictions, and (2) he would be a continuing threat to society. In addition to the evidence presented at the first stage of trial, the State presented aggravating evidence of Mr. Hooker's nonchalant attitude about the killings when police arrested him.

Mr. Hooker presented mitigating evidence about his prior offenses, his excellent prison record, his work ethic after he was released from prison, his love for his children and Ms. Stokes, his substance abuse problem, his changed behavior while using drugs, his fragile coping skills, his feelings of inferiority, his strong interpersonal skills, his traumatic family background and his chronic underlying depression.

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

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

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Accordingly, we AFFIRM the federal district court's denial of habeas corpus relief.

Hooker v. State, 887 P.2d 1351 (Okl.Cr. 1994). (Direct Appeal)

CHAPEL, Judge:

John Michael Hooker was charged with two counts of First Degree Murder with Malice Aforethought in violation of 21 O.S.Supp.1982, § 701.7, in the District Court of Oklahoma County, Case No. CRF-88-1939. Count I charged Hooker with the murder of Sylvia Stokes, and Count II charged Hooker with the murder of Drucilla Morgan. The State filed two Bills of Particulars seeking the death penalty on each count.

A jury trial was held October 24-28, 1988, before the Honorable Leamon Freeman, District Judge. At the conclusion of the first stage of the trial, the jury returned a verdict of guilty of first degree murder on both counts. The case then proceeded to the capital sentencing phase of trial.

During sentencing, the jury found the existence of four aggravating circumstances: (1) Hooker was previously convicted of a felony involving the use or threat of violence to the person; (2) Hooker knowingly created a great risk of death to more than one person; (3) the murder was especially heinous, atrocious or cruel; and (4) the existence of a probability that Hooker would commit criminal acts of violence constituting a continuing threat to society. The jury then sentenced Hooker to death on both murder counts. From this Judgment and Sentence, Hooker has perfected this appeal.

FACTS

Sylvia Stokes was John Hooker's common-law wife. Hooker and Stokes had a violent, turbulent relationship, which was marked by episodes in which Hooker physically attacked Stokes. Several witnesses testified about Hooker's attacks on Stokes and about threats Hooker had made against Stokes.

The State also introduced a Victim's Protective Order ("VPO") that Stokes had secured against Hooker approximately seven months before her death. In the spring of 1988, Hooker, Stokes and their three children were living in the Providence Apartments in Oklahoma City. Drucilla Morgan, Stokes' mother, as well as other members of Stokes' family, also lived in this apartment complex. Witnesses characterized the apartment complex as one where many residents regularly used drugs, such as PCP, and where violence was not infrequent.

In late March 1988, Stokes and her children moved out of the apartment she shared with Hooker. Several witnesses testified that on Sunday, March 27, 1988, Stokes was at her mother's apartment drinking beer and talking with friends and family. While Stokes was at her mother's apartment, Hooker arrived and tried to persuade Stokes to return home with him, but she refused.

Several witnesses testified that later that Sunday afternoon, they observed Stokes and Morgan enter the Hooker-Stokes apartment. Witnesses also testified they saw Hooker enter the apartment. The witnesses' accounts of these events varied and the times at which these incidents occurred also varied. Some witnesses also testified they noticed Hooker leave the apartment wearing a light colored shirt, blue jeans, tennis shoes and carrying a jacket over his arm or shoulder. They saw blood on Hooker's clothing. Other witnesses also observed blood on Hooker's clothing when they saw Hooker that Sunday afternoon or evening.

Two women, who were in the apartment below the Hooker-Stokes apartment on Sunday afternoon, testified they heard loud noises, like furniture moving, in the Hooker-Stokes apartment. Although the witnesses did not hear any arguing or screaming, the loud noises were sufficiently troubling as to cause the women to pray. After five minutes the noises stopped. The women estimated the incident occurred between 4:00 and 5:00 p.m.

Cynthia Stokes, who was Stokes' sister and Morgan's daughter, testified she saw Hooker in the Hooker-Stokes apartment on Sunday evening watching "60 Minutes" on television. Cynthia stated neither her sister Sylvia nor her mother were in the apartment with Hooker.

On Monday morning, March 28, Cynthia Stokes grew concerned because she had not seen her mother or sister since Sunday afternoon. Cynthia went to the Hooker- Stokes apartment to see if she could find them. Cynthia was unable to enter the apartment because something was blocking the door. She then managed to push the door open slightly and look in the apartment. Cynthia saw her mother lying on the floor in a pool of blood. She immediately called the police.

The police found both Stokes and Morgan's bodies in the apartment. The women died from multiple stab wounds. A blood analysis of the women indicated both women were intoxicated at the time of death. The analysis further indicated the presence of PCP in Stokes' blood.

Officer Gilbert Riggs testified that Stokes' body was blocking the only door to the apartment. The police investigation revealed that Stokes and Morgan's murderer left the apartment through a back window. The police also uncovered a partial bloody footprint in the apartment that was consistent with tennis shoes worn by Hooker. Hooker's shoe is a common brand and the print could have matched other similar shoes.

Over a week after the bodies of Stokes and Morgan were found, Hooker was arrested. Blood found on his blue jeans was analyzed as type B. Hooker's blood type is O; Stokes and Morgan were blood type B. Twenty-two per cent of African-Americans have blood type B. Hooker, Stokes and Morgan are African-American.

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Accordingly, we find no error warranting reversing Hooker's convictions or modifying the sentences of death. The trial court's Judgment and Sentence for First Degree Murder is AFFIRMED.