# Hammon v. State

> Court of Criminal Appeals of Oklahoma · June 30, 1995 · 66 O.B.A.J. 2230

URL: https://www.frixlaw.com/law-library/cases/9562326

## Case

- **Full name:** Richard Eugene HAMMON, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** June 30, 1995
- **Citations:** 66 O.B.A.J. 2230; 898 P.2d 1287; 1995 OK CR 33; 1995 Okla. Crim. App. LEXIS 38; 1995 WL 384982
- **Precedential status:** Published
- **Opinion:** Concurring in part by Johnson
- **Judges:** Strubhar, Chapel, Lane, Johnson, Lumpkin
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9562326

## How later opinions describe it (automated extraction)

- holding defendant who used a firearm during a robbery cannot be punished for both felony murder and use of a firearm in commission of felony because both crimes punish the use of the firearm
- holding the element of carrying away merchandise was established even in absence of the challenged jury instruction, thereby, making the instruction superfluous

## Opinion text

JOHNSON, Presiding Judge,
concurring in part, dissenting in part.
I concur with the Court herein as it relates to the finding of guilt, but I dissent as to the reversal and remanding this case for resen-tencing. The Court has based its resentenc-ing on what we have come to know as “reverse Witherspoon exeludables”.
Courts have long had a problem with the automatic exclusion of jurors in a death penalty case. The Supreme Court originally said that one who “automatically” would vote against the imposition of a death penalty would be excluded from a jury panel for cause. Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). The Supreme Court wanted to clarify the Wither-spoon decision, and did so some years later in the case of Morgan v. Illinois, 504 U.S. 719 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (1992). The Court held that a juror is to be removed from the jury panel for cause when he or she would automatically vote for the death penalty and fail to consider the aggravating or mitigating circumstances.
I agree with the State in this regard that counsel did get to ask the jurors whether they would follow the instructions regarding guilt or innocence, as well as punishment. Any irregularity was cured by this question. I would, therefore, affirm not only the judgment, but the sentence herein.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9562326. Public record. Not legal advice.