Randall Eugene Cannon

Case details

Name: Randall Eugene Cannon

Background

Randall Eugene Cannon and his co-defendant Loyd LaFevers were convicted in state court of murdering eighty-four-year-old Addie Hawley.

The offence

On June 24, 1985, LaFevers and Cannon decided to steal a car after LaFevers’ car broke down in a northwest Oklahoma City neighborhood. After selecting a house in the neighborhood, the two men forced their way into the home of eighty-four year old Addie Hawley. They ransacked her home, taking eight dollars from her purse, along with the keys to her car and the garage door opener. The two took her out of the house and into the car.

Cannon, who was driving the car, drove for just over a mile before pulling over so that they could put Hawley in the trunk. The two men drove to a convenience store where they bought a two liter bottle of orange soda. After drinking some of the soda, they poured the rest out and filled the bottle with gasoline. LaFevers directed Cannon to drive to a secluded area where he removed Hawley from the trunk of the car.

Although there was evidence presented at trial that indicated that Hawley was raped, neither defendant admitted having committed rape or sodomy. Each man indicated in his pretrial confession to police and during his testimony at trial that the other man had committed the sexual offenses while he remained as a lookout. After the completion of the sex acts, one of the two men, again each blaming the other, poured gasoline from the orange soda bottle on Hawley and set her on fire. They drove the car a short distance away and also set it on fire.

Rescue personnel were called to the scene soon after the fires were set. Although Hawley had been burned over sixty percent of her body, she was still alive. She had suffered a blunt injury to the forehead and had two black eyes along with multiple cuts and bruises. She died a short time after being taken to the hospital.

Investigation

Detective Ron Mitchell of the Oklahoma City Police Department testified that he arrested Cannon because he had an outstanding misdemeanor warrant and a couple of back traffic tickets. Mitchell testified he learned of the outstanding warrants by calling the police department’s Crime Information Unit (“CIU”); the CIU then called the issuing entity to verify that the warrants were still valid. According to Mitchell, the CIU verified the existence of both the misdemeanor warrant and traffic warrants. Mitchell testified that he never personally verified the existence of the misdemeanor warrant, but that the traffic warrants “had to be in hand in order to book somebody on those charges.”

Lieutenant Pacheco of the Oklahoma City Police Department testified regarding the circumstances surrounding Cannon’s consent to the search.

Arrest

Cannon testified that no outstanding warrants existed on the day he was arrested and that he had previously paid all fines related to the misdemeanor and traffic charges. He requested that the trial court hold its ruling in abeyance until he could present receipts for payment of the fines. Cannon also asked that the prosecution produce the warrants for examination by the trial court. The prosecution argued that it was not necessary to produce the warrants because the trial court could rely on the testimony of Mitchell.

The trial court rejected Cannon’s request, ruling as follows: “The Defendant’s motion to hold in abeyance the ruling is overruled, and the motion to suppress the evidence of the arrest is overruled. All right. The evidence will be admitted.”

When Cannon raised this claim on direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) noted in a footnote that “[a] copy of the [misdemeanor] warrant was submitted as a supplemental record on appeal and accepted as tendered for filing on April 1. 1994.” The OCCA held the warrant was valid on its face “and any possible error would be harmless because Cannon has not shown he was prejudiced.” The OCCA also held that “the traffic warrants appear sufficient to uphold the legality of the arrest.”

Trial

Convictions

An Oklahoma jury found Cannon guilty of first degree murder, rape, forcible sodomy, and arson. The jury sentenced Cannon to death for the murder conviction.

Direct appeal

On direct appeal, the OCCA vacated the rape and sodomy convictions, concluding they were not supported by sufficient evidence; it affirmed the murder and arson convictions and death sentence.

Evidence about sexual offenses

Cannon and LaFevers did not admit having committed rape or sodomy.

Warrantless search of home

The state trial court held an in camera hearing on the validity of the warrantless search pursuant to Jackson v. Denno. Pacheco testified that Cannon consented to the search of his home upon the condition that his parents or brother would be present during the search. Pacheco also testified that Cannon was not physically impaired at the time he gave consent and that he was not “hurr[ied]” into providing consent.

During his own testimony at the Jackson v. Denno hearing, Cannon testified that the signature on the consent form the prosecution had attempted to introduce was not his, and he testified that he did not remember giving consent to a search of his home. At the request of his trial counsel, Cannon submitted an exemplar of his signature to the trial court for comparison with the signature on the photocopied consent form.

The OCCA noted that “the ‘trial court found Cannon gave knowing and voluntary consent to search.’” The OCCA concluded that the trial court’s finding was well supported by Pacheco’s testimony both during the in camera hearing and before the jury.

During the in camera hearing, the prosecution attempted to introduce a photocopy of a consent form signed by Cannon prior to the search. The prosecution stated for the record that the original consent form had been lost in the interim between Cannon’s first and second trials. When Cannon asserted a “best evidence” objection to the admission into evidence of the photocopy, the prosecution withdrew it and recalled Pacheco to testify that he received verbal consent to search Cannon’s home.

Jury instructions for malice aforethought murder (aiding and abetting)

At trial, the prosecution offered the jury alternative theories upon which it could convict Cannon of malice aforethought murder: (1) Cannon directly committed the murder; or (2) Cannon aided and abetted LaFevers in committing the murder.

The OCCA rejected Cannon’s instructional error claim. The OCCA held: “Nobody contests the fact that, under the aiding and abetting theory, the jury had to find that Cannon was a principal to the crime. Instructions 36 and 37 correctly defined ‘principal’ and aiding and abetting. The remaining instructions clearly set forth the defense of abandonment, the burden of proof, and the definition of criminal intent. Cannon claims that the malice murder instructions told the jury that Cannon must have caused the victim’s death and that the aiding and abetting instructions told them Cannon could be guilty if he did not actually commit the acts. He says ‘it is not a giant leap’ to conclude that an aiding and abetting conviction for malice murder required only general intent. On the contrary, this is a leap of epic proportions. The aiding and abetting instructions cannot be read in a vacuum; they explicitly refer to the underlying charged crime and indicate that the elements of the charged offense must be proved. Read as a whole, the instructions clearly required the jury to find that Cannon’s conduct caused Hawley’s death and that he intended to take her life, or that he aided and abetted LaFevers’ acts knowing of and sharing in LaFevers’ intent to take Hawley’s life. These instructions were not erroneous.”

The state trial court defined aiding and abetting in Instruction 37 as follows:

One who does not actively commit the offense, but who aids, promotes, or encourages its commission, either by act or counsel or both, is not deemed to be a principal to the crime unless he did what he did knowingly and with criminal intent. To aid or abet another in the commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding in the commission of that criminal offense. (emphasis added).

The jury instructions defined criminal intent as:

“[d]esign to commit a crime or to commit acts the probable consequences of which are criminal.” (emphasis added).

The court also instructed the jury on “malice aforethought,” including that it meant “a deliberate intention to take away the life of a human being.” The State had to prove each element of the charged crime, including the specific intent to kill, beyond a reasonable doubt. The jury was instructed that “[t]he external circumstances surrounding the commission of a homicidal act may be considered in finding whether or not deliberate intent existed in the mind of the defendant to take a human life.”

The federal appellate court reviewed all fifty-nine instructions given to the jury and concluded that the OCCA’s decision was neither contrary to nor an unreasonable application of Patterson v. New York and Jackson v. Virginia.

Prospective juror removal for cause

Cannon asserted that the state trial judge excluded prospective juror Jack Vann for cause in violation of Witherspoon and Wainwright. The OCCA considered and rejected the claim on the merits, holding that Vann did not believe in and would not impose the death penalty and that his excusal for cause was not an abuse of discretion.

The OCCA described Vann’s voir dire responses in part as follows: “A thorough reading of the transcript shows that Vann did not understand what was being asked. Initially he said he was not personally opposed to the death penalty but could not consider imposing it as a juror. Later he agreed he would have preconceived notions of appropriate punishment but admitted he did not know what that phrase meant; that he could consider all punishments but his mind was closed; and that he didn’t believe in the death penalty.”

In the dismissal for cause, the trial judge concluded: “The Court is convinced that Mr. Vann cannot properly serve on this jury.”

Sentencing

Appeals

Federal habeas petition and certificate of appealability

Cannon lodged numerous challenges to his Oklahoma first degree murder and arson convictions and to his death sentence. The district court denied relief as to each claim but granted Cannon a certificate of appealability (“COA”) to raise five issues on appeal.

After a case management conference, the court granted Cannon a COA to raise three additional claims.

The federal appellate court (U.S. Court of Appeals for the Tenth Circuit) affirmed the district court’s denial of Cannon’s federal habeas corpus petition.

Issues addressed on appeal

Cannon argued, among other claims:

• His arrest was illegal and statements he made after his arrest were fruits of an illegal arrest and detention; the district court barred reaching the merits under Stone v. Powell, and the appellate court agreed Cannon had a full and fair opportunity to litigate the Fourth Amendment claim in state court.
• A warrantless search of his home violated the Fourth Amendment because Oklahoma failed to prove knowing and voluntary consent; the appellate court agreed that Cannon had a full and fair opportunity to litigate this claim in state court, citing testimony from Lieutenant Pacheco and the in camera Jackson v. Denno hearing.
• Ineffective assistance of trial counsel claims related to DNA testing, investigation, and counsel’s actions regarding mitigation and procedural issues; the appellate court addressed procedural default and procedural bar.
• A Brady claim regarding disclosure related to the misdemeanor arrest warrant and related materials; the appellate court held Cannon failed to demonstrate cause for procedural default and thus did not reach the merits.
• Jury instruction error claims regarding aiding and abetting and malice aforethought murder; the appellate court concluded the OCCA’s decision was neither contrary to nor an unreasonable application of Patterson and Jackson.
• Penalty-phase ineffective assistance claims related to additional mitigation evidence including possible brain damage and social history; the appellate court concluded Cannon failed to demonstrate prejudice.
• Enmund and Tison individualized culpability findings; the appellate court held the claim failed based on the rejection of the guilt-phase instructional argument.
• Removal of a prospective juror for cause; the appellate court concluded Cannon failed to demonstrate the factual finding was incorrect and that the OCCA’s decision was not an unreasonable application of Supreme Court precedent.

Outcome

The U.S. Court of Appeals for the Tenth Circuit affirmed the district court’s denial of Cannon’s 2254 habeas corpus petition. The execution carried out in Oklahoma occurred on July 23, 2002 by lethal injection.

Timeline

• June 24, 1985 — LaFevers and Cannon forced their way into the home of eighty-four-year-old Addie Hawley, stole eight dollars from her purse, took keys to her car and garage door opener, put Hawley in the trunk, drove to a convenience store, used orange soda bottle gasoline, drove to a secluded area, removed Hawley from the trunk, committed sexual acts, poured gasoline from the bottle on Hawley, set her on fire, and set the car on fire; Hawley died after being taken to the hospital.
• August 7, 2001 — The U.S. Court of Appeals for the Tenth Circuit issued its decision, affirming the district court’s denial of Cannon’s 2254 habeas corpus petition.
• July 23, 2002 — Randall Eugene Cannon was executed by lethal injection in Oklahoma.

Other details

Trial-related reversals mentioned

Cannon’s convictions on these same charges following a first trial were reversed by the OCCA on the ground that the trial court should have severed Cannon’s trial from that of his co-defendant.

Blood-stained pants and expert testimony (penalty-phase ineffective assistance discussion)

At trial, the prosecution presented to the jury two pairs of blood-stained pants and asserted that one pair was worn by Cannon (Exhibit 84) and the other by LaFevers (Exhibit 83) on the night of the murder.

Joyce Gilchrist, a forensic chemist employed by the Oklahoma City Police Department, testified about eight blood stains on Exhibit 84, including that the analysis revealed four stains of type O blood around the cuffs and back of the pants, three type A stains in various locations on the pants, and one stain inconclusive as to type on the inside of the lower leg. Gilchrist testified that both Cannon and the victim had type O blood and that LaFevers had type A blood. Gilchrist further testified that Exhibit 83 had four type O blood stains and four type B stains.

Tom Bevill, an employee of the Oklahoma City Police Department, with expertise in “geometric blood stain analysis,” testified about transfer blood and medium velocity splatters and provided opinions about where medium velocity blood splatters were more likely to occur and what that indicated about force.

The appellate discussion noted that trial counsel cross-examined to elicit that it was a matter of pure speculation whether the type O blood on Exhibit 84 was the blood of the victim. The appellate decision also described Bevill’s testimony as equivocal and noted that the jury was instructed during the penalty phase that Cannon had presented evidence of mitigating circumstances including: “Randall Cannon played a lesser role in the death of Addie Hawkins.”

Mitigation evidence claimed but not developed

Cannon argued that his trial counsel was ineffective in failing to develop mitigation evidence including:

1. possible organic brain damage,
2. a social history investigation examining his childhood and early adult life,
3. DNA testing of blood stains on Cannon’s pants.

The appellate court discussed affidavits from a clinical psychologist, a Licensed Clinical Social Worker, and a professor of neurology and pharmacology, stating that these affidavits indicated serious brain damage and resulting psychiatric disorders “distort his perceptions and impair his judgment,” and that the psychiatric disorders flowed from organic damage, head trauma, and prolonged alcoholism and drug abuse. Cannon asserted that the head trauma originated from an incident in which he was hit in the head with a police officer’s flashlight.

Authentication and procedural details in habeas proceedings

Cannon appealed from the district court’s denial of his federal habeas corpus petition brought pursuant to 28 U.S.C. 2254. The appellate decision described jurisdiction under 28 U.S.C. 1291 and 2253(c). The appellate court concluded that Cannon was not entitled to habeas relief and affirmed the denial of relief.

References to specific rulings and cited authorities in the appellate decision

The appellate decision referenced Stone v. Powell; Miranda v. Cooper; Stone’s discussion of “opportunity for full and fair litigation”; Jackson v. Denno; Witherspoon v. Illinois; Wainwright v. Witt; Patterson v. New York; Jackson v. Virginia; Strickland v. Washington; Enmund v. Florida; Tison v. Arizona; Brady v. Maryland; and Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) standards under 28 U.S.C. 2254(d) and (e).

Note about Gilchrist investigations included in the appellate discussion

The appellate decision included a discussion that additional information had come to light casting serious doubt on the veracity of Gilchrist’s testimony in a large number of criminal prosecutions, including investigations and concerns. Cannon sought to hold the appeal in abeyance pending DNA testing, which the appellate court denied.