Hain v. State ( 1996 )

CHAPEL, Vice Presiding Judge,

concurring in result:

I agree the sentence of death in this case should be affirmed. However, as noted by the majority, the trial court erred in compelling Hain’s testimony as to certain crimes he allegedly committed in Kansas. Clearly, an Oklahoma judge has no authority to grant Hain immunity from prosecution for crimes alleged to have occurred in Kansas. The admission of Hain’s compelled testimony violated his Fifth Amendment rights.

This issue is subject to harmless error analysis.¹ Admission of a defendant’s corn-pelled testimony is an error within the trial process itself, occurring during the presentation of the ease to the jury, and not a structural defect affecting the framework within which the trial proceeds or an error transcending the criminal process.² Before we can determine that a federal constitutional error is harmless, we must be able to declare it harmless beyond a reasonable doubt, and the State has the burden to show that the error did not contribute to the defendant’s conviction or sentencing.³ After a review of the record, I am unable to so determine.

The prosecutor asked Hain (1) whether he heard Ms. Comstock testify, (2) specifically whether he heard her testify to repellent details of the crime which the prosecutor related, and then (3) whether he denied doing those acts. The jury heard Hain claim his Fifth Amendment right not to testify (TRII 438-39, 444). Outside the jury’s presence, the trial court granted Hain immunity over his objection and directed him to answer any questions put to him or be held in contempt (TRII 441).⁴ When the jury returned, Hain was compelled to answer eight similar questions about Ms. Hofford’s testimony, again repeating details of the rape and sodomy. Again he was asked whether he denied committing those acts. Each time Hain denied the accusations.

One might argue that any error in directing Hain’s compelled testimony was harmless simply because Hain denied committing the offenses. This is unpersuasive. First, the prosecutor took the opportunity to repeat in detail the victims’ testimony, asking merely whether Hain had heard each victim testify as to certain things. This method of questioning connected Hain with the details of the rapes and other acts before the jury by sheer proximity alone. The jury heard Hain admit he had listened to that testimony and saw his reactions as it was repeated to him. Thus the jury heard more than Hain’s denial; they also heard once again the details of the offenses. Second, before Hain denied committing the crimes the jury heard him attempt to claim his Fifth Amendment right to avoid answering those questions. That claim must have cast unavoidable doubt on Hain’s subsequent denials. Third, this Court has held that a defendant presented direct evidence of a crime by testifying where (1) he took the stand, (2) presented an alibi defense, and (3) denied committing the crime.⁵ By analogy, Hain’s testimony denying the Kansas offenses must be considered incriminating. If a defendant presents direct evidence of a crime by denying he did it, how can that testimony not be incriminating as well?

Taken as a whole, the questions posed to Hain and his compelled answers tended to incriminate him and prejudiced him before the jury. It is true that Ms. Comstock and Ms. Hofford had already testified to the Kansas crimes, and each identified Hain as one of her attackers. Even in light of this evidence, I cannot say that admission of Hain’s compelled testimony was harmless. I believe the violation of Hain’s Fifth Amendment right against self-incrimination taints all the evidence presented regarding the Kansas offenses. Additional evidence was presented of adjudicated crimes committed earlier the same year against a Tulsa couple. Those crimes included burglary, robbery with firearms, kidnapping, and two charges of attempt to kill. Although Hain’s testimony about these offenses was not compelled, rather than risk upholding an aggravating circumstance based on otherwise tainted and unreliable evidence, I would invalidate that circumstance.⁶

Having invalidated the continuing threat aggravating circumstance, I would reweigh the evidence supporting the remaining aggravating circumstances and the evidence presented in mitigation.⁷ Evidence supporting the aggravating circumstance that the murders were especially heinous, atrocious or cruel includes: 1) Hain threatened the victims with a knife; 2) Hain watched as Lambert tied Houghton’s hands and feet, and put him in the trunk of Sanders’s car; 3) Hain and Lambert kidnapped Sanders and Houghton; 4) Hain watched as Lambert put Sanders in the car trunk; 5) Hain drove Sanders’s ear and followed Lambert to a convenience store and then an isolated rural area; 6) Hain transferred the defendants’ belongings from Sanders’ car to Houghton’s truck; 7) Hain watched while Lambert used Hain’s knife to cut the car’s fuel line; 8) Hain gave Lambert pieces of paper and a blanket with which Lambert set fire to the ear; 9) Hain stood by the car and listened to Hough-ton and Sanders as the car burned; 10) the victims died of thermal burns and smoke inhalation, were alive during the fire, and would have been in pain before death. Evidence supporting the circumstance that the murders created a great risk of death to more than one person includes the fact that two people were killed.⁸

Mitigating evidence presented includes: 1) good conduct while imprisoned; 2) poor home life, including alcoholic, absent, abusive, argumentative parents, frequent childhood moves; 3) introduced to drug and alcohol use by his father; 4) trouble staying in school, nonviolent juvenile delinquency, including burglary encouraged by his father, and escapes from juvenile detention; 5) Hain was under the influence of drugs at the time of the crimes; 6) Lambert planned the crimes and Hain was afraid of Lambert; 7) Lambert suffered psychological and developmental problems as a result of his childhood environment.⁹

After thoroughly considering all the mitigating evidence and the evidence supporting the remaining aggravating circumstances, I conclude that the evidence in aggravation outweighs the mitigating evidence presented. I further conclude that the jury could have imposed the death penalty based on the valid aggravating circumstances without considering the evidence presented in support of the continuing threat circumstance, and that the invalid evidence was not so overwhelming as to dominate the proceedings. Given the substantial evidence supporting the valid aggravating circumstance, it is clear that the jury’s improper consideration of the invalid circumstance did not play a significant role in its decision to impose the death penalty. Consequently, I concur in the decision to affirm Hain’s sentence.

1 . Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

2 . Fulminante, 499 U.S. at 310-11, 111 S.Ct. at 1265, 113 L.Ed.2d at 331-32.

3 . Bartell v. State, 881 P.2d 92, 95-100 (Okl.Cr.1994); Fulminante, 499 U.S. at 301, 111 S.Ct. at 1260, 113 L.Ed.2d at 325-26 (error influenced capital sentencing); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

4 .In addition to lack of jurisdiction, this grant was erroneous for another reason. The trial court’s grant of immunity was explicitly limited to prosecution for the Kansas crimes; the record shows the immunity did not extend to the State’s use of the crimes against Hain in these sentencing proceedings. Research has not discovered what type of limited "immunity” this might be.

5 . Mayes v. State, 887 P.2d 1288, 1302-06 (Okl.Cr.1994), cert. denied, - U.S. -, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995).

6 . In addition, I have consistently disagreed with the use of unadjudicated offenses to support the continuing threat aggravating circumstance. See, e.g., Cannon v. State, 904 P.2d 89, 106 n. 59 (Okl.Cr.1995); LaFevers v. State, 897 P.2d 292, 308 n. 40 (Okl.Cr.1995); Medlock v. State, 887 P.2d 1333, 1349 n. 43 (Okl.Cr.1994); Hogan v. State, 877 P.2d 1157, 1167 (Okl.Cr.1994), cert. denied, - U.S. -, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995); Paxton v. State, 867 P.2d 1309, 1332 (Chapel, J., dissenting); see also Rogers v. State, 890 P.2d 959, 976 n. 35 (Okl.Cr.1995) (citing my dissents on this issue). The federal district court for the Eastern District of OHahoma has recently found admission of unad-judicated acts to support the continuing threat aggravating circumstance violates due process and injects arbitrariness into capital sentencing proceedings. Williamson v. Reynolds, 904 F.Supp. 1529 (E.D.Okla.1995). The fact that the evidence of unadjudicated offenses here is tainted by Hain's compelled testimony only strengthens my determination that the evidence supporting this circumstance is unreliable.

7 . McGregor v. State, 885 P.2d 1366, 1385 (Okl.Cr.1994); Clemons v. Mississippi, 494 U.S. 738, 752-54, 110 S.Ct. 1441, 1450-51, 108 L.Ed.2d 725 (1990).

8 . Allen v. State, 67 O.B.J. 713, - P.2d -, 1996 WL 67516 (Okl.Cr. February 16, 1996); Valdez v. State, 900 P.2d 363 (Okl.Cr.), cert. denied, - U.S. -, 116 S.Ct. 425, 133 L.Ed.2d 341 (1995).

9 . Instruction 16, O.R. 182-83, listed as mitigating circumstances Hain’s: 1) youth; 2) emotional, psychological and mental age; 3) blameworthiness; 4) dominance by Lambert; 5) drug history; 6) State’s failure to provide appropriate treatment at earlier stages of development; 7) fear reaction to finding himself in a fugitive/captive situation; 8) lack of personal participation in criminal acts and proportionality analysis; 9) physically absenting himself from scene as far as possible; 10) lack of violence in alleged escape attempt; 11) education level; 12) family history; 13) intellectual capacity; 14) good adjustment to incarceration, good behavior with lack of violence, and expressive development; 15) revulsion at Lambert’s choice of manner of victims' death; 16) Hain did not realize Lambert's intent to kill at beginning of the crimes and was unable to extricate himself.