(OSCN Found Document:SKINNER v, STATE |nup:/iww esen nevapplications/oscn/DeliverDocument sp?CitelD=255109 i ! eee es WwW corer toe WSCNre OKLAHOMA STATE COURTS NETWORK AA TT - OM NCO ‘Oklahoma Court of Criminal Appeals Cases SKINNER v. STATE 2009 OK CR 19 Case Number: F-2007-1101 Decided: 06/11/2009 GORDON TODD SKINNER, Appellant -vs- STATE OF OKLAHOMA, Appellee ‘OPINION CHAPEL, JUDGE: {1 Gordon Todd Skinner was charged and corvicted of Conspiracy to Commit Kidnapping AFCF, under 21 0.S.2001, § 424 (Count I); Kidnapping AFCF, under 21 0.8 2001, § 741 (Count Il); and Assault and Battery with a Dangerous Weapon AFCF, under 21 0.,2001, § 645 (Count Il) inthe District Court of Tulsa County, Case No. CF-2003-4213, 1 In accord with the jury's recommendation, the Honorable Gordon D. McAllister sentenced Skinner to imprisonment for thirty (30) years and a $10,000 fine on Count I, imprisonment for sixty (60) years and @ $10,000 fine on Count Il, and : imprisonment for life and a $10,000 fine on Count Ii, o be served consecutively. 2 Skinner is properly before the Court on direct appeal FACTS ‘12. Even a careful review of the record in this case leaves unanswered many questions about what exactly happened to eighteen-year-old Brandon Green, beginning over the Fourth of July weekend in 2003, at the hands of defendant Gordon Todd Skinner ("Skinner"), and with the assistance of his co-defendants Krystle Ann Cole Skier ("Cole") and Wiliam Earnest Hauck (‘Hauck’). is even more unclear why it happened {13 Whatis fairy clear, however, is that Green joined Skinner and Cole, who were staying at the downtown Tulsa Doubletree Hotel, in early July of 2003. 4 Skinner was known for hosting gatherings at this and other locations, where ilegal psychedelic drugs would be given out, often his own concoctions and often as part of a pseudo-religious ceremony that Skinner would lead. Green was expecting to party with Skinner and Cole and to prepare for some kind of business venture with Skinner, which involved harbor dredging work in the Caribbean, Green considered Skinner to be his “tiend” ‘and referred to Cole, whom he had been dating for a few months, as his “girlfriend,” even though she had apparently just married Skinner. Cole had previously been involved with Skinner, but she had recently been trying to “get away" from him, with the belp of Green, because Skinner was so violent and controling. © 44 tis also clear that on July 3, 2003, at the request of Skinner, Green drove from Tulsa to Oklahoma City to pick up Bil Hauck, whom Green had not met previously, and bring him back to the hotel, Hauck was a truck driver and had a long : history of working for and with Skinner, and he expected to be involved in the dredging venture. Hauck had his own room on a different floor and was in and out of the hotel and Skinner's rooms over the next five days. Meanwhile Cole remained 7 in and around the adjoining 14" floor rooms during this same time. The exact extent of Hauck and Cole's wiling participation in the subsequent kidnapping and torture of Green al the hotel was a matter of some dispute at trial, but there was no dispute among the testifying witnesses who were there at the time—Green, Hauck, Cole, and later Kcist Roberis-—that Skinner was very much runing the show. ® On the other hand, Hauck and Cole freely admitted that they Loflé 6117/2009 4:27 AM‘OSCN Fou Document SKINNER v. STATE hap. osen.nevapplicationsosen/Deliver Document.spCitelD=455 109 2of 16 {did nothing to try to stop Skinner and that they made no effort to get Green any kind of help, even though they could see his injuries and hear him moaning in pain and begging for help. 7 Nor did they contact law enforcement authorities or : anyone else on Green's behalf. {9 Brandon Green remembers that on July 4, 2003, he voluntarily ingested several of what Skinner described as “the Eucharist,” believing that the Catholic communion wafers that Skinner provided would be laced with LSD, as on previous ‘occasions when Skinner had given them to Green, Green expected that the wafers would cause him to “trip,” but instead he was rendered completely unconscious. ® Green testified thal his next memory was of waking up naked on the hotel bathroom floor, with his hands, legs, and mouth duct-taped, and with Skinner standing over him, kicking him in the groin area as hard as he could and saying, "You should never have touched my fiancée; you should never have touched my. fiancée." Green remembers that he eventually passed out during this assault and that when he woke up, Skinner was, kneeling over him with a hypodermic need, injecting something into his penis. Green's comprehension then got “extremely blurry,” and he has very few clear memories of the incredible torture that he was subjected to over the next four days at the Tulsa Doubletree and then at a Houston area motel after that {16 Evidence presented at trial established thatthe torture at the Tulsa hotel included numerous and repeated injections by Skimmer into Green's penis, testicles, buttocks, and other parts of his body, withthe apparent cal purpose of permanently disabling and dsfigurng Green seniaily and of Keeping him ina prolonged state of unconsciousness, while he was being physically, sexually, and emotionally assauited by Skimer. “° Skinner also brutally punched and kicked Green inthe genitals, fted Green's unconscious body up off the bed by grabbing him at the base of his genitals, 4 and wrapped a phone cord about Green's penis, put his foot on’Green's stomach, and jerked until he heard "the cartilage snap.” {17 Kristi Roberts testified at trial that she met Green, Skinner, and Cole eatfier in 2003, that she had taken psychedelic ‘drugs provided by Skinner, including “the Eucharist.” and that she had a “very close friendship" with Skimer. Roberts testified that she stopped by the hotel during the early morning hours of July 2, 2003, but then did not return to the hotel Unt late evening on July 5, after being picked up by Heuck in Green's car. After chalting with Skinner and Cole, Roberts discovered Green ling on the bed in Room 1411 “ina sedated state.” 1? Skinner and Cole told her that Green had “tried to keep up with [Skinner] taking the Eucharist.” Roberts left again that night and did not return unti the next night {98 When Roberts arrived on July 6 and asked where Skinner and Green were, Cole directed her to Room 1411, saying, “it’s not as bad as it looks.” Roberts found Green lying on the bathroom floor, with duct tape around his head and face, his hands duct-taped to his feet behind him, and with a "KFC" cup over bis penis, Roberts testified that Green was very Upset, “tripping really hard,” and that when she finally got the duct tape off his mouth, he was talking but not making a lot of sense. 12 Roberts testified that Cole told her that Green had “gotten ito something” (the green liquid) and that Roberts should wear socks on her hands and not touch any of the substance thal was on Green. {J9 Roberts testified that as she gave Green a bath, he started saying that *his balls were hurting” and that Skinner had “shot him inthe balls.” Roberts could tell that Green was in @ lot of pain and could see that his testicies were very swollen and that his penis wes injured. She got Green back into bed and tried to comfort him and to convince Skinner and Cole to take him to a hospital, but they refused, saying that Green had injured himself during a "bad tri.” “4 as Green became ‘more lucid over the next few hours, he started teling Skinner that he "was sorry he slept with his grriend’ and that he “thought that they were fiends.” 10 Green begged Roberts to find out if Cole was involved in what was happening to him, so Roberts went down to the lobby with Cole for 2 few minutes to talk to her. By the time Roberts returned, Green was laying on the bed drooling, no longer able to speak, and Skinner told her that he “ust gave him something to put him to sleep." “5 After sitting with the now-"sleeping” Green for a while, lo make sure thal he was stil breathing, Roberts left and went to sleep ina different room on the 15" floor. When Roterts woke up the next morning, Cole told her that Green had left and was probably ‘going to the police. Roberts testified that she believed Green had left on his own, since he was no longer in Room 1414 and his car keys had been taken from the place where she had hidden them in that room. Roberts "assumed everything was going to be fine,” after Green recovered from his trip. {11 Earlier that same morning of July 7, 2003, Skinner determined that Green needed to be moved out of Room 1411, 6/17/2009 4:27 AM‘OSCN Found Document:SKINNER v. STATE 3of 16 because a housekeeper had discovered that they were using thal room (without paying for it) and had seen Green on the bed, and also to get Green away from Roberts. ‘Skinner directed Hauck and Cole to move Green, then barely conscious, to Hauck’s room on the eighteenth floor and to tel Roberts that Green had woken up and left the hotel. 1 Skinner then ordered Hauck, Cole, and Roberts to clean up the fourteenth floor rooms, which they did. After that Skinner sent Roberts off with his luggage to get him a room at another hotel, and she did not return to the Doubletree. Skinner gave Green {urther injections in the new room, in order to keep him from “waking up" ‘112 On Juty 8, 2003, Skinner hatched a plan that Green's body would be totally shaved and then dumped in a remote: area of Texas. 1% Skinner told Hauck to cut Green's long, blond, curly hair, which he did. Skinner then sent Hauck to find a large wardrobe box and a bellman's cart. Hauck tested that when he retumed, Green's head had been completely shaved and that Skinner and Cole were also shaving his legs and eyebrows. 18 Hauck tesiied that after they finshed, Skinner poured aleohol and Epsom salt on Green's body, claiming that it would destroy DNA evidence. 12 After Skinner ‘gave Green an additonal injection to keep him “out, they dressed him, put him in the box, put the box on the hotel cart, rolled the cart out to Green's own car, which was parked in the hotel parking lot, wrapped him in a blanket, and then buckled Green's limp body into the front passenger seat. Skinner directed Hauck to drive to the Houston area, where ‘Skinner would join them later, and gave Hauck an additional syringe to use on Green, in case he started waking up on the way. 13 Hauck testified that he never injected Green with anything, but that when Green started to wake up during the trip, Hauck hit him twice on the face and that Green "was in enough of 2 weakened condition (that) it knocked tim out.” 20 Hauck testified that they arrived at a motel in the Houston area during the early morning hours of July 9, that when Green slarted waking up again, he tied him down to the bed in the room, and that they were joined by Cole and Skier that afternoon, Green was held in this room until the evening of July 10, 2003, During this time Skinner gave him additional injections to keep him unconscious and ordered Hauck to give Green oral antibiotics, claiming that it woud help heal the injection marks. $114 During this time Skinner also prepared a foul-smelling “tea,” which he both forced Green to dirk and injected him with, causing Green to vornit violently. Both Hauck and Green testified about a particularly disturbing thing that Green vorited up, which had litle worrm-lke things inside it, and that Skinner claimed was a “parasite sack.” 2" In addition, and at the direction of Skinner, Green's eyes were covered and he was told that ithe took the covering off, his retinas would 'be burned. Skinner then pretended to be a Swedish doctor, who had come to “help” Green, but who actually tormented ‘him and put suppositories and perhaps other things in Green's anus. 22 415 Late in the day on July 10, Skinner directed Hauck to take Green and dump him, along with his car, in a deserted area in rural Texas, where it would be unlikely that Green would be found or get help quickly. 23 Cole was directed to follow Hauck, who was driving Green's car, and to bring Hauck back after he had dumped Green. Green was given a final injection by Skinner before they lett. Cole and Hauck slopped at a convenience store on the way to buy some water and chocolate candy to leave with Green, since they knew that he had not had sn food and only limited fluids since the ‘whole ordeal began. They then drove to an area along a highway auside of Texas Ci, Texas. Hauck tested that he ‘and torturing some future victim during these earlier time periods, the Fifth Amendment and his immunity agreements, = offered Skinner no protection for such a “career of crime about.to be launched.” {128 The Fifth Amendment and the immunity provided for compelled testimony serve as a shield to protect individuals against any reasonably foreseeable use of their own testimony against them in a criniinal case, Skinner completely mmisunderstands the scope of the Fifth Amendment privilege against sel-igcrimination and the immunity based upon this privilege. Rather than a shield, Skinner attempts to convert these protections into a sword, which can be used fo commit ew crimes against new victims, and for which he would then be effectively untouchable. None of the authorities relied upon by Skinner support his open-ended interpretation of Kastigar immunity. Kastigar is about immunity from being prosecuted for past or continuing crimes through the use of one's own compelled testimony or evidence developed from that testimony. I is not about impunity to go out and commit brand new crimes, on the belief that no goverment will be able to prosecute a former cooperating witness who is toting an immunity agreement in his back pocket, 129 Because the crimes that Skinner was charged with committing in the current case were, without question, committed entirely after his grants of immunity and were also totally unrelated to his prior assistance and testimony, Kastigar immunity is simply not at issue in the current case. Thus the district court was not required to hold the extensive Kastigar hearings that it held, in which Skinner attempted to show that witnesses and evidence in the current case, and even the prosecutor himself, were somehow irreparably “tainted” by the prior federal case. This Court appreciates the efforts and patience ofthe district court and its commitment to ensuring that Skinner's rights were not violated, which was demonstrated by allowing defense counsel to pre-exarine every single State witness, in an attempt to show that the : current prosecution was tainted by the prior federal case. Hopefully the analysis herein will help avoid this kind of wasted time and effort in the future, in cases where, despite a witness's earlier Fifth Amendment-based immunty, the circumstances clearly reveal that the proscriptions of Kastigar simply do not apply. Gof 6 16/17/2009 4:27 AMOSCN Found Document:SKINNER v, STATE 70f16 ‘190 This Court notes that there was no attempt to use any of Skinner's actual immunized testimony against him in the ‘current case, This Court need not and does not decide whether actual immunized testimony can ever be used against an immunized witness in a subsequent and entirely unrelated criminal case, prosecuted by a different sovereign. © We do find that in a later and totally unrelated case, the prosecuting authority is not obligated to prove that al ofits evidence was derived from new and "wholly independent” sources. {81 The poris and pitfalls of an unlimited interpretation of Kastigar immunity are readly apparent in the current case ‘Skinner and his attorneys have taken the remarkable positon, from the inception ofthe current case, that Skinner simply cannot be prosecuted for his violent actions against Brandon Green, because of his prior immunity agreement wih the federal government. We have already explained, based upon Kastigar and its progeny, vty this position's legally flawed. In addition, this Court notes thatthe extensive Kastigar hearings held inthis case revealed only isolated and incidental connections between the current prosecution and the prior federal case. Most significantly, perhaps, it appears that @ DEA agent helped put the Tulsa police department in contact with “Mike the truck-driver"—allegedly based upon information that the DEA hed from prior dealings with Skinner—since Green did not know Mike Hauck's last name atthe time, Although even this kind of assistance would be precluded ifthe current case had developed from Skinner's earlier testimony, this case obviously had an entirely separate source: Skimer's subsequent and totally unrelated crimes. ‘$82 Similarly, t does not maiter that Krystle Cole, Mike Hauck, and Brandon Green were known to the DEA and had some interactions with the DEA prior to the current prosecution and even the current crimes, even i it was Skinner who first brought Cole into contact with the DEA. ©© Nor was the DEA or the federal government prevented from passing on, to the State of Oklahoma, the information provided to federal agents in late July of 2003"snd thereafter, when Green and his father sought federal assistance regarding Skinner's crimes against Green. Because the real and substantial risks of incrimination that confronted Skinner atthe time of his 2000 federal immunity deal and his 2003 federal immunity dealtestimony did not inciude the remote and insignificant possiblity that his assistance could someday provide information or leads that would be helpful to the State of Oklahoma in prosecuting Skinner for some future violent attack, ‘ona vietim that Skinner had not then even met, the sweeping protections of Kastigar simply do not apply in the current case. Skinner's Proposition | claim is rejected accordingly ‘133 In Proposition Il, Skinner asserts that he is entitled to a new trial due to the discovery of new evidence that had not been previously disclosed. © The argument in Skinners brief, however, merely gestures at a true Brady claim and a “newly discovered evidence” claim, without coming close to fuly developing ether. 58 This Court concludes, accordingly, that Skinner's Proposition I! claim has been waived. 8 {134 In Proposition il. Skinner again gestures at, but does nol fuly make, a claim under the Interstate Agreement on Detainers Act (“IADA"). 22. Consequently, this Court finds that ths claim has likewise been waived. 21 This Court notes thatthe State's brief accurately éatalgs the various continances granted in this case—mostly at Skinners raquost and wilh hs explicit waiver ofthe IADA'S 120-day rule. Skinner has totaly faled to demonstrate thatthe timing offs tril violated the ADA. 22 This claims rejected accordingly. {185 In Proposition IV, Skinner challenges a number of remarks made by the prosecutor inthis case and alleges thal they effectively “denied Mr. Skinner a fair trial” Yet again, however, Skinner fails provide a complete argument in this section ‘and totaly fails to show how is trial was rendered unfair by the referenced remarks. 7 Hence this claim too has been waived and is rejected accordingly {136 In Proposition V, Skinner challenges the trial court's response to the following jury note, sent out during the jury's ‘second-stage sentencing deliberations: “Will sentences be concurent or consecutive? Will we or judge make that decision?” After discussing the jury note and possible responses with the parties, the trial court sent the jury the following response: “You have all the law and evidence needed to decide this case,” {137 Skinner argues herein that the jury should have been instructed thatthe trial court would be the one to determine whether Skinner's sentences would be served concurrently or consecutively. m4 However, Skinner did not request such an instruction at trial, thereby waiving this claim absent plain error. 25. This Court has found that the response given by the vial court inthis case is the proper response to a jury question about how a particular defendant's sentences will be Iugp/Wwwww oscn.nevapplicationslescw DeliverDocument.asp?CitelD=455109 611712009 4:27 AM.OSCN Found Document: SKINNER v. STATE Intp:/wwo osen.neVapplications/oscn/DelverDocumentasp?Citel Sorts 155109) served (consecutively or concurrently) or who makes this determination. 7© Thus the tral court's response herein coud not have been plain error. 7 {188_In Proposition VI, Skinner ergues that the former felony conviction used to enhance his sentences in the current case, 2 1991 New Jersey conviction for third degree Conspiracy to Distribute CDS, could not be used for this purpose, because the completion of his sentence for this priar corviction was nat within ten years of the commission of the crimes in tis case, 78 This ciaim was properly raised in the trial court, The trial court rejeéted this claim, finding: (1) that the ‘completion of the sentence for the New Jersey conviction was within ten years of the crimes in the current case, and (2) that even if this New Jersey conviction was not already within the ten-year enhancement window, an intervening federal misdemeanor conviction would serve to bring the New Jersey conviction within this window, {139 The New Jersey conviction relied upon by the State to enhance Skinner's sentences herein is dated June 13, 1991. ‘The judgment sentences "Gordan Todd Skinner” to a term of “three (3) years probation,” with “credit for lime served of 331 days.” Hence this sentence was fully discharged on July 17, 1983. The crimes in the current case began no later than July 4, 2003 and were completed no later than July 11, 2003. Although these crimes were committed close to the end of the ten-year enhancement window, they were clearly within this window. Thus it was entirely appropriate to use the New Jersey felony conviction to enhancThuse Skinner's current convictions. Ths claim is rejected accordingly. 7% ‘140 Within Proposition VI, Skinner also raises an alternative claim thatthe State failed to adequately establish thatthe person convicted in the New Jersey case is indeed the same "Gordon Todd Skinner" who has been charged and convicted inthe currant case. 8° skinner never raised any claim inthe trial court questioning the State's assertion that the rman convicted inthe New Jersey case was indeed him. Consequently, and because the name of comiction in the New Jersey case is, in fact, the defendant's actual name and the same name by which he is charged inthe current case, "Gordon Todd Skinne this Court rejects the current claim. ® We note that the New Jersey conviction lists 7/13/64 as the defendant's date of bith in that case, which the record in this case reveals is Skinner's correct birthday. ® Nothing in the record suggests that the man convicted in the 1991 New Jersey case was anyone other than the defendant in this, ‘case. And this claim is rejected accordingly, 41. In Proposition Vil, Skinner challenges the rial court's refusal to instruct the jury regarding the meaning of a “ite” sentence, as he requested at rial. Skinner relies upon this Court's decision in Anderson v. State.®2 Yet Anderson involved the "85% Rule," under which persons corwicted of crimes enumerated in 21 0.S., § 13.1 are required to serve at least 85% of their sentences before they can ever be considered for parole. © Perhaps surprisingly, none of the crimes in the current case are (or were) “85% crimes.” ®5 Hence Anderson does not apply herein, and Skinner's jury was not entitled to any instruétion on how a “fe” sentence in Nis case would be served. © skinner has neglected to suggest. both in the trial court and here on appeal, how the desired instruction defining the mearing of a “ile” sentence in this rnon-85%-Rule case, would even be worded. This Court rejects Skinner's claim accordingly. ‘142 After thorough considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that neither reversal nor madification of Skinner's corwictions and sentences is required by the law and evidence. We further find, however, that the Judgment and Sentence documents in this case should be ‘modified, through orders nunc pro tunc by the district court, to clearly state that each of Skimer’s three convictions was ‘found by the jury to be “After Former Conviction of a Felony" (AFCF), for which Skinner was sentenced accocdingly. Decision 143. Skinner's convictions for Conspiracy to Commit Kidnapping AFCF, Kidnapping AFCF, and Assault and Battery with 2 Dangerous Weapon AFCF, as well as his sentences on these three counts, are AFFIRMED. This case is REMANDED, however, for clarification of the Judgment and Sentence documents, through orders nunc pro tune by the district cour, in accordance with this opinion, Pursuant to Rule 3.18, Rules of the Oklahoma Court of Criminal Appeals, Tile 22, Ch. 18, ‘App. (2006), the MANDATE is ORDERED issued upon the delivery and fling of this decision. 8% AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY ‘THE HONORABLE GORDON D. MCALLISTER, JR., DISTRICT JUDGE 6117/2009 4:27 AMOSCN Found DocumentSKINNER v. STATE |ntp:/\vww oscn.net/applications/osen/DeliverDocument asp?CitelD=435109 APPEARANCES AT TRIAL APPEARANCES ON APPEAL PATRICK ADAMS GLOYD L. Mccoy THOMAS A, MORTENSEN MCCOY LAW OFFICE ATTORNEYS AT LAW. 600 SKYRIDGE TRAIL 2 WEST 6™ St., SUITE 500 NOBLE, OKLAHOMA 73068 > TULSA, OKLAHOMA 74119 ATTORNEY FOR APPELLANT ATTORNEYS FOR DEFENDANT . W.A, DREW EDMONDSON : ACK THORP ATTORNEY GENERAL OF OKLAHOMA ASSISTANT DISTRICT ATTORNEY FOR CHRISTY BAKER TULSA COUNTY ASSISTANT ATTORNEY GENERAL 406 COURTHOUSE 313 NE. 21 ST. 500 S. DENVER AVE. OKLAHOMA CITY, OKLAHOMA 73105 TULSA, OKLAHOMA 74103 ATTORNEYS FOR APPELLEE ATTORNEY FOR THE STATE OPINION BY: CHAPEL, J. C. JOHNSON, P.J.:"CONCUR ‘A. JOHNSON, V.P.J CONCUR LUMPKIN, J. CONCUR IN RESULTS, LEWIS, J CONCUR FOOTNOTES The Judgment and Sentence documents in this case fail to accurately record that in regard to each of Skinner's three counts, he was convicted and sentenced "After Former Conviction of a Felony" (AFCF). This Court herein orders, correction of these documents accordingly. 2 This Court notes (and discusses in connection with Proposition VII) that none of the crimes of which Skinner has been ‘corwicte fall under the "85% Rule" for the serving of his sentences. 2 Cole and Hauck were charged along with Skinner in Counts | and Il, but were not charged in Count Ill. Both Cole and Hauck tested for the State against Skinner at fis solo tral. They both testified that they didnot have ary “deaf with tne State, in exchange for their assistance and testimony, but that they hoped their assistance would be given some consideration in their cases. * Cole and Skinner were staying in Rooms 1409 and 1411, which wore adjoining, even though the hotel was unaware at the time that they were using Room 1411. Evidence presented at tral indicated that Skinner had previously hosted parties in these same two rooms, © Cole testified at trial that she and Skiner had always had an “open relationship.” which included dating other people leven when they were “together.” She testified that in early July of 2003, she sill considered Green to be her “boyfriend,” = even though she had a "vague memory" of marrying Skinner on June 27, 2003, while under the influence of drugs. Cole testified that she was in love with Green at the time and that he was "shocked" that she married Skinner. Cole described Kristi Roberts as Skinner's *girriend” during this same time period. And Roberts testified at trial that when she came by 9016 6/17/2009 4:27 AM.a L SOSCN Found Document: SKINNER v, STATE Inap://vww sen nevapplications/asen DeliverDocument.asp?CitelD=453109 Room 1409 on the hight of Juy 2, 2008, Skinner, Cole, and Green were all sleeping together ina single bed. © skinner did not testify. Both Cole and Hauck testified that they were afraid of Skinner and that in adsition to being large, strong, violent, and manipulative, Skinner was believed to possess certain mental “powers” to control other people. - Hauck was reluctant to claim that he thought Skinner had actual "mind contro over bi, but Hauck did testify that for some reason he did as he was told regarding Green, without thinking for himself, and that he "was afraid the next needle would be mine.” Even Green testified that he believed Skinner had the power to make people in his presence feel like they were “tripping” on psychedelic drugs, without having taken any such drugs, and that he and Cole had both ‘experienced this phenomenon in Skinner's presence, Skinner told the people around him that he was “a government agent,” and his frends knew that he had a history of working with federal DEA agents, 7 Hauck also admitted that early on inthe ordeal, he helped Skinner bind Green with duct tape, after being told that Green (who was unconscious) had had a “bad trip” the previous night and had gotten violent and destructive. Hauck testified that Skinner later warned him that he could never claim that he was not “involved,” since Hauck had participated in binding Green. ® Cole likewise tesified that Green's reaction to the waters provided by Skinner was very unusual and unexpected. Cole testified that she had an extensive history with and knowledge of psychedelic drugs, based upon actually trying 20 or 30, different kinds hersel, learning about. them fram Skinner and observing people at his drug parties, reading numerous books about them, = 2 Hauck tesiied that Skinner said ‘m getting even. | dont let anybody sleep with my wife.” 10 skinner bragged at the time that that the genitalia injections he was giving Green would cause his geritals “to shrivel! up and fal of ara that other substances he was injecting Green with would “erase tis memory” about what had happened. Cole teslfied that it was “normal for [Skinner] to give people stuff if he wanted to knock them out.” Cole also tesfied that she was aware of a number of the substances that Skinner injected into Green, incling the downers Vala ‘and Kionopin. She also tested that Skimer puta green gud substance into Greer's mouth while he was knocked out, ‘which gat on Green's face. Cole noted that when she got a crop ofthis substance on her arm, it caused her arm to 90 rumb and stay numb for 20 minutes or more, which really concerned her. Skinner told her thatthe green liquid was "Sebinrin A oF C” 11 Houck testified tat after liting Green up off the bed this way, Skinner commented, “He's not going to ever feel anything.” i | 12 Roberts noted that Green was wearing a shirt at that time and that the bottom haff of his body was under the covers. 13 Roverts testified that Green suddenly started “freaking out" and that when she looked behind her, Skinner was, standing there holding a steak knife. Green seemed very afraid of Skinner, but allowed Roberts to use the knife to slowly cut off the duct tape. 14 Roberts acknowledged that she could have called the police; but did't, because she was afraid of bringing “negative [attention to the group. 45 tauck tested tt Skinner wos concerned because Green was taking to Rober and geling mare coherent; so he asked ole to get Ropers oof the om or 9 whe. Whe they were gee, Hack saw Skimer ghe Gren an mecton fbb fos aoe 18 Hauck testified that he had to take duct tape off Green's wrists and legs before they could move tim, which had ‘apparently béen re-applied after Roberts removed it the previous day, and that Green was “out of it” atthe time they moved him and left him in the new room. | 1 Hauck tested that Skinner ‘warted to leave him down in South Texas, and he wanted rim to look lke he was homosexual, and [Skiiner] said the good old boys of Texas wouldn't pursue it, just another homosexual Wor te i 6/17/2009 4:27 AMOSEN Found Document:SKINNER v, STATE hap://w ww osen.nevapplications/escw/DeliverDocument.asp?CitelD=255109 38 Hauck testified that Cole was laughing and mocking Green as she shaved his eyebrows and that she seemed to be having “fun.” Cole, on the other hand, testified that Skinner did all the shaving and that she feared Hauck, as well as Skinner, and that they both ordered her around. 12 Cole testified that Epsom salt was placed on Green's gerital area and that it was bleach that was then poured over him, causing horrible, irritating fumes to fill the room, 20 Green had only foggy memories of most of his ordeal, but he did remember certain events, such as when Hauck hit him during the drive. Nevertheless, at trial Green described Hauck as mostly a comforting, reassuring, and even “gentle ‘and nonaggressive" presence, that Hauck gave him Gatorade, and that Hauck was only “mean” to him when Skinner was around, 2 Green teslfed about the horrible tea that he was forced to drink and that afterward he threw up things that he called “jelifish," because of their see-through appearance, which had “lke litle worms... swimming around inside" of them 22 Cole testified that Skinner's “Swedish doctor” was intended to confuse Green about what had happened and that ‘Skinner was regularly giving Green a combination of psychedelics, barbiturates, opiates and “anything that he could to make [Green] not be able to remember." Green testified that he eventually recognized the voice of the “Swedish doctor" as being Skinner and that the things that Skinner shoved up his anus caused a tear in his anus, 23 skinner told Hauck that he wanted Green dropped off around dusk, so that the mosquitoes and chiggers would be active and would “cover the injection sites." 24 Hauck then acknowledged, however, that @ hospital would have the place where Green try had “the best chance" to survive, 23 Hauck testified that he was certain that he left the passenger side door unlocked, but when Green woke up and when ‘authorities later found the car, all the doors were locked. Green testified that he left his clothes in the field, since they were so dirty and nasty, 22 In the video Green struggles to speak and is obviously very weak, very sick, and very confused. He talks about having 2 ot of trouble with his memory, which he attributes to taking too many Eucharsts, and he does not remember ‘much about what happened, though he does remember that Skinner gave him an inection in his penis while atthe Tulsa Doubletree. Green also talks about the awful right that he spent in the field after “Wiliam” left him, that he “cried all right," that he was so sick, that he really struggled to take off his pants, Decause he had to go to the bathroom, and that he kept faling and hoping Someone would come hell kim, - 22 Almost five monihs after Skinner's trial and convictions, Cole pled "no contest” to accessory after the fact to kidnapping. Later, on March 26, 2007. she was placed on probation for five (6) years, ordered to pay $52,109 in restitution, and given a deferral of sentencing untii March 26, 2012. One day after Cole's plea, Hauck likewise pled guilty to accessory after the fact to kidnapping. He was immediately sentenced, in accord with a plea agreement and based upon only one of his five prior convictions, to a suspended sentence of ten (10) years, without supervision, a $250 fine, and a $5,000 victim's compensation assessment, In January of 2003, Skinner was ordered to testify in the federal trial of Wiliam Leonard Pickard, in the federal district court of Kansas, and was granted use and derivative use. immunity regarding his testimony by the judge in that case. ‘Skinner acknowledged in the trial court that his testimony in Pickard’ trial was completed well Before he met Brandon Green, in April of 2003, 22 inparticuar, Green and Cole apparently went to the DEA within a month prior to the current crimes, hoping thatthe DEA could pursue some kind of drug action against Skinner, because they were afraid of him and wanted to get him in trouble. Loris 611712009 4:27 AN‘OSCN Found Document: SKINNER v. STATE ‘hap: osen.neVapplications/asen/DeliverDocument asp?CitelD=455109 1 tin is be Skiner makes a nuber of aca riclous claims, incng the folowing: “The Stat of Oklahoma's ccase is entirely derived from information gathered as a result of the immunity agreement with Mr. Skinner.” Rather than . focus upon these overstatements or even on the precise nature of the contacts that certain State witnesses may have had with the DEA, this Court carefully focuses on the extent and meaning of “Kastigar immunity” and how that immunity shouid be understood in the current context 32 405 US. 461, 92 SCL 1053, 32 Led 2 212 (1972) (a, a 453, 92 S\Cx. at 1861 406 US. at 453, 92 S.Ct. at 1661 a. ‘The Supreme Court noted: Transactional immunity, which accords fl immunity from prosecution fdr the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. ‘The privilege has ‘ever been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concemnis to afford protection against being “forced fo give testimony leading to the infliction of ‘penalties affixed to ... criminal act 6: (aad teeta 82 id, at 460, 92 S.Ct. at 1965 (emphasis added); id. at 461-62, 88 S.Ct. at 1685 (government's burden to prove, in such cases, “that all of the evidence it proposes to use was derived from legitimate independent sources”) 38 For example, the Kastigar Court noted that the “comprehensive safeguard!" provided by the prohibition on any “use of compelled testimony against the witness includes "barring the use of any evidence obtained by focusing investigation on a Sinan wou Rs compolodsedosura” tab, 88 Slat e516 erp sed) Cones, bs Tan nous nt eho tel evden clad gain spony mss wires wh wae decid Sung oat now iesipton veh was te becise te wires conritda rower. Smtr, he Rasiger ated hte sty toss hom bo gg a compsledesreny raat to rere a hs eels testimony can in.no Way lead to the infiction of criminal penalties” against the testifying witness. /d, at 464, 88 S.Ct. at 1665 (emphasis added). Thus such immunity does not mean that the immunized witness is protected from the infliction of Sain ernst Rove he cous nelly ow oo, uhh hoped aly hon tesigson ond even 2 tne ste, tle Fith Ameren rar ter aon or aesy. Boh Sate anh Fit Amendment stow be green oposeoue iy ence fom epuate iopondesoran Hi 42 although Kasigarjtsetf did not specifically limit the kind of criminal cases to which the immunity would apply, later decisions recognized thatthe immunity was nied to prosecutonslrimes that were in some way related to the orginal immunty given. Seo|o.g., Unitod States v. Hubba, 530 US. 27, 40, 120 S.Ct. 2037, 2045, 147 L.Ed.2d 24 (2000) (summarizing Kastigar as deciding that for “a person wo is prosecuted for matters related to testimony he gave under a grant of immunity,” ggvernment has affirmative duty to show that a of its evidence is derved from legitimate sources “wholly independent ofthe compelled testimony") (emphasis added) (quoing Kastgar). Simian, the Supreme Court has held that even thoughlthe Fifth Amendment protection against self-incrimination refers to “any criminal case,” it does not protect a witness from being compeled to testy where the witness's testimony coud ony be used agains hiner in a triminal prosecution by a foreign government. See United States v. Balsys, 524 US, 668, 673-74, 118 § Ct. 2218, 2228, 181 L.€d2¢ 575 (1998). The Imitation on Kastigar immunity to prosecutions that are in some way related tothe orginal testimony is discussed further infra + The Oklahoma Court of Criminal Appeals has recognized and applied Kastigar and its principles. See, e.g., Clem v. State, 1985 OK CR 66, #9 19-21, 701 P.2d 770, 773-74 Ror is 6/17/2009 4:27 AMOSCN Found Document:SKINNER v. STATE hitp://www oscn nevapplications/oscw/ DeliverDocument.asp?CitelD=455109 2 390 US. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). $3 ig. at 83, 88 S.Ct. at 705, “4 id, at 60, 88 S.Ct. at 709. The Marchetti Court emphasized that it ws not questioning the government's right to tax ilegal actives, id. at 44, 88 S.Ct. at 700, but that the federal wagering tax laws and the implementation of these laws allowed for and even encouraged the use of information obtained via compliance with these laws to then prosecute ‘complying individuals for violating other federal and state laws against wageringigambling. Id. at 47-48, 88 S.Ct. at 702 $5 id, at 83-54, 88 S.Ct. at 705-06. 48 ig, at 53, 88 S.Ct. at 705. In Marchetti, the Court concluded that the “hazards of incrimination” for persons comelying withthe federal wagering tax statutes were not “ting or imaginary,” because complying with those statutes woud, in fact, “significantly enhance the ketbood of their prosecution for future acs,” for violating separate laws against wagering and gambling, and would “readily provide evidence” that could be used in those future prosecutions. Id, at 54, 88 S.Ct. at 706. & ig, at 54, 88 S.Ct. at 705, #8 401 US. 601, 91 S.Ct. 1112, 28 LEd.2d 356 (1971) #2 a, a1 602-05, 91 S.Ct. at 1115-16. id, at 605-08, 91 S.Ct, at 1116. 51 The Court described this risk as being not a “substantial and real" risk, but merely a “ting or imaginary hazard of incrimination id. at 606, 91 S.Ct. at 1116-17 (citing Marchett. 2 ig, at 606-07, 91 S.Ct. at 1117 (emphasis added). Justice Brennan, concurring in the judgment in Freed, specifically noted that although the Fifth Amendment would protect a transferee from any use of information obtained through compliance with the amended Firearms Act in a state prosecution for possession ofthe registered firearm, the Act woul not prevent the State from using that same information ina Ister prosecution ifthe transferee committed new crimes with that firearm, id at 611, 81 S.CL. at 1119 (Brennan, J., concurring inthe judgment), 3 Lower courts have likewise emphasized thatthe privilege against sel-incriminaton typically apples only to past crimes ‘or present “continuing” crimes. See, €.g., United States v. Harvey, 869 F.2d 1439, 1446 (11" Gir. 1989) (noting that privlege generally encompasses only crimes that a witness “had already committed, or was in the process of committing, atthe time of the testimony"), These courts have emphasized that because future crimes typicaly involve “only speculative and insubstantial risks of incrimination” (quoting Marchetti), the exception created by Marchetti for certain future crimes “is a very narrow one.” 1d. at 1447. = 54 445 US. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980) 58 ia. at 116-17, 100 S.Ct. at 949-50. $8 ig, at 125, 100 SiCt. at 954. 5T jg. at 127, 100 S.Ct. at 955 (emphasis added), 58 4, at 124-30, 100 S.Ct. at 954-57; see also United States v. Hubbell, $30 U.S. 27, 40-46, 120 S.Ct. 2037, 2045-48, 147 (.Ed.20 24 (2000) (finding that Fifth Amendment privilege and immunity given to overcome privilege include Bor ls 6117/2000 4:27 AMOCW Fan DosumentSKINNER STATE pv atenaappicaonstoseDlverDocmenasp7CilD=#85109 | estonia pect of wires's action in assembing and pricing documents fnrespane o subpoena, which led to cranes of wins; hence the pregesrrunty pron rest prossetion of wines) 59 613 F.2d 38 (3" Cir. 1980). | 1, a 39-40, | | 8 i arsa, a} = | 86 id, at 42. \ aS Id, at 42-43. Tt 4s Court notes that although we agree with the cited legal analysis of Quatermain, the prosecutions at issue in that cate were arqualy more related than nthe cfrent case, partly because Favors aoststance inthe Cae agaist Gustemain was found tobe motvated by Custermans por (inmaniaed) testimony agers avert. t's arguable, n Quaterpam. ina way that isnot the curent case hal Fort’ later Cooperation wth te government in Order to get back at Quntrain, was indeed a “hazard of Inctirinaton’ om Quatornans earl enavzod testy. Therefore, even halgh we agree with Quetermain’ legal analy, as cod Inte ton, ths Cour woud not necessary deci ts case the sameway is cout ots ta the atl ers of Skier’ rant greements wth the federal goverment co be broader thane requed by the Constitution and costiuonly-baced decsons such as Kastigar. Hance tis ents possi thal the federal government, which made the munty agreements with Skimmer, cou be sbjct to more extancive prohiions on “anyuse of information obtained under those agreements in connection with “any” criminal ease, a6 2 talterofeonrect ty. Because the State of Oklahorna wes nota party to these agreemens, However, the State of Otlahoma rot bod by those sual agreement, though ts bound to respect Skin’ Fh Amentivent ple ard = _tymnty bse pn is neg The cen opmon base pon hese coral pri, rol ene! . principles. \ ~ 8S But see Apfelbaym, 445 U.S. 115, 100 S.Ct, 948, 63 L.Ed.20 250 (1980) (discussed sur). = © Nor does it matter that Green and Cole approached the DEA about Skinner's drug actives inthe’ month prior to ‘Skinner kidnapping and torturing Green, particuarly since none of this information (or any information derived therefrom) played ary role in the current prosecution ST On August 18, 2008, Skinner tendered a "Motion to Supplement the Record" with evidence relating to this claim. For the reasons discussed herein, this motion is DENIED. £8 soe Rules 3.5 anit 9.11(8), Rules of the Oklahoma Court of Criminal Appeals, Tie 22, Ch. 18, App. (2008); see ‘also Brady v. Maryland, 373 US. 83, 83 S.Ct. 1994, 10 L.Ed.2d 215 (1963). | £2 The “non-disclosed" information that Skinner cites comes from the presentence investigation report in Krystle Cole's, ‘case. Cole pled “no contest" in her case almost five months after Skinner's trial was completed, and the cited report was filed more than four months after that plea. In addition, the supposedly “exculpatory” information contained therein relates to the extent of Cole's involvement in Green's ordeal. In relation to Skinner, the cited material is insignificant, irelevant, ‘and unclear. It certainly would not have made any difference in Skinner's trial, 20 See 22 0.8 20011 1} § 1347 (‘Interstate Agreement on Detainers’). 1 ‘See Rule 3.5, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008). = © see 22.0.8.20011 § 1347 (Asticle 1V(c) (noting that "for good cause shown in open cour,” til court may grant “any ‘necessary or reasonable continuance,” without volating IADA's 120-day rule). Skimer has totally failed to allege or establish thatthe contnuances granted in is case were for something other than “good cause.” | aor t6 66/17/2009 4:27 AM(OSCN Found Document:SKINNER v. STATE Inup:/ivw osen.nevapplications/oser/DetiverDocument asp?CitelD=435109 73 This Court notes that Skinner's primary change isto the prosecutor’ reference to Skinner, during opering statements, 2s someone ‘who manufactures [hallucinogenic] drugs.” which was objected to by defense counsel. At a sidebar following this objection, the tial court asked defense counsel if he wanted the jury specifically admonished that the - “manufacturing of drugs” was not an issue in the case and shouid not be considered, Defense counsel chose to have this ‘edmonishment given, which was then done. The issue was not raised again, This single, isolated comment certainly did . ‘ot render Skinner’ trial unfair. Regarding Skinner's claim about arguing “facts that were not in evidence,” its not even clear what particular factual assertion Skinner is challenging. And there is nothing unfairly projudicial in the material auoted. 74 in fac, Skinner offers the folowing as a proper responsefinstruction: “You, the jay, are to determine what range of punishment is appropriate for each cornction. |, the judge, determine whether the sentences should be served Concurrently or consecutively. You must not let that fact inluence your decision in any way.” 18 ‘Instead, Skinner argued at Wrial thatthe jury shouldbe instructed about whether Skinners sentences woul, in fact, be served concurrently oF consecutively. Not surprisingly, the trial court insisted that this question could not then be answered, since the court would make that decision based upon information that was not yet avaliable, such as the sentences given by the jury. 78 soe, 0.g, Trice v. State, 1993 OK CR 19, 1152, 853 P.20 203, 218 ("When a deliberating jury seeks information concerning is power to run sentences consecutively, te tral judge should respond by stating that al tho information needed to make the decision is contained in the instructions," 7 wtnin his Proposition V claim, Skinner notes that his jury sent a further note stating: “Define alfe sentence in a umber of years, (Please!) For Example: 100 years?” Defense counsel did nat object tothe trial courts response to this question: “You have all the law needed to decide this case.” Skinner now argues that this further question illustrates, = ‘proof of the eror regarding the first question.” It certainly does nat. 5 78 ‘See 21 0.S.Supp.2003, § 51.1 (general enhancement statute); 21 O. Supp 2003, § 51.2 (‘Except as provided in [21 = ©.8. Supp.2002, § 51.1], no person shall be sentenced , .. under Section 57.1 of ths title .. . when a period of ten (10) years has elapsed since the completion of the sentence imposed on the former conviction; provided, said person has not, inthe meantime, been corvicted of a misdemeanor involving moral turpitude or a felory.”) 75 This Court need not reach the issue of whether Skinner's iitervening federal misdemeanor conviction inolves “moral turpitude,” although the record suggests that it does. £9 ‘The New Jersey conviction of Gordon Todd Skinner sts the folowing two names as aliases: Terrance Finnegan and Dwayne Mile. & See Cooper v. State, 1991 OK OR 54, {] 8, 810 P.2d 1303, 1206 ("T]he identity of name of the defendant and the person previously comicted is prima facie evidence of identity of person, and in the absence of rebuting testimony, supports a finding of such identity.” (quoting Wiliams v. State, 1961 OK GR 70, | 7, 364 P.26 702, 704)). ® in adaiton, we note that during sentencing-stage closing arguments, an June 20, 2006, Skinner's own counsel Goscribed him tothe jury as “a 42-year-old man,” Skinner turned 42 years od less than a month ater this comment was made. 83 2006 OK CR 6, 130 P.3d 273, £4 Seo i. at $f] 10-25, 130 P.3d at 277-83; see also 21 O.S., §§ 12.1 and 13.1 (establishing the “85% Rule") = 85 seo 21 0.S.Supp.2002, § 13. (sting 85% crimes at ime of Skinner's offense); see also 21 O.S,Supp.2008, § 13.1 a (listing current 85% crimes). a sor is 611772009 4:27 AM_OSCN Found Document SKINNER v. STATE | : 88 Seo Lacy v State, 2007 OK GR 20, 7, 171 P.3d 911, 914 (defendant not entitled to 85% Rule instruction in case = hot involving 85% Rise crime}, Innp:tivww osen.nevapplications/osen/DeliverDocument.aspCiteID=455109 ~ & as noted supra, Skinner's Motion to Supplement the Record, tendered for fiing on August 18, 2008. is hereby DENIED. | Gitationizer® Summary of Documents Citing This Document cto Name Level Nona Fun Citationizer: Table of Authority Ce ane | level (Oklahoma Court of Crimp pes Cates Cte Name Leva : IMLOKCREL atoflastom, COOPER STATE rca 90305 R19 a7 28203, °CEs STATE - OBOKCRS 0P427S ——BRDERGONy STATE = moroncem ie, vos stat ici {ei GKGR7, se4Aad7e2 = WLR » STATE Ocuses ssesoKcRes 701Plad7m, CAEN STATE Clos co none eve! mos 14 Maman Sentences Etethe Dota tos nosm, | sour Sea toed comes Discussed nose | unten x Sacandand Subsea OtesessirConcton a Oferse Cit unt bymprscren Sit Sener n0s.s12, unten Secon a SibsaavenOteses ae Conlon ol Ofense Chet Fiabe nanan Se Sener = eke nos site ‘Secand Olen Fra Denee Rape, Sosy, Le Moanin Send Cle ieecoaciad nosm | ‘Gnesi Dafnes cues nos. | Conese - Deaton Pushent ina roses \ Ass. at, Assault Boy wih Carper Weapon Ces “Th 22 ein Procedure coe 4 Nome Lest nos 1s lott orem on Daina Ciented 16 of 16 | 6117/2009 4:27 AM