Cannon v. StateCannon v. State
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- Before:
- Chapel
Lead Opinion
ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF, REQUEST FOR EVIDENTIARY HEARING AND MOTION FOR DISCOVERY
CHAPEL, Presiding Judge:Randall Eugene Cannon was tried by jury before the Honorable Thomas C. Smith in the District Court of Oklahoma County, Case No. CRF-85-3254. He was convicted of First Degree Malice Aforethought Murder in violation of
On October 23, 1996, Cannon filed an Application for Post-Conviction Relief di
In Proposition I Cannon claims that trial counsel was ineffective for failing to conduct reasonable investigation and present relevant mitigating evidence in the second stage of his trial. Cannon admits that counsel presented mitigating evidence but argues that counsel was ineffective in failing to consult a psychologist or conduct investigation into the possibility of psychiatric impairment and childhood sexual abuse. To be properly before the Court on post-conviction, this claim of ineffective assistance of trial counsel must require fact-finding outside the direct appeal record.12
To support his contention that this ineffective assistance of trial counsel claim requires fact-finding outside the direct appeal record and thus should not be held waived, Cannon submits (1) an investigator’s affidavit stating that his trial attorney had no strategic reason for his failure to explore mental health issues in mitigation; (2) results
While the information set forth in these affidavits was not in the direct appeal record, Cannon has failed to establish that appellate counsel could not have obtained it for purposes of raising an ineffective assistance of triаl counsel claim on direct appeal. This Court may not review Cannon’s capital post-conviction claims of ineffective assistance of trial counsel “if the facts generating those claims were available to [his] direct appeal attorney аnd thus either were or could have been used in his direct appeal.”14 Cannon’s ineffective assistance of trial counsel claim is waived because it could have been raised on direct appeal but was not. Proposition I is denied.
In Proposition III Cannon claims his constitutional rights were violated when this Court held that reversing his rape and sodomy convictions did not require reversal or modification of his murder conviction or death sentence. On direct appeal, we reversed Cannon’s convictions for rape and sodomy because there was insufficient evidence in the record tо support those convictions.15 We noted that this decision did not require reversal of the murder and arson convictions since the evidence introduced in support of the sex offenses would have been admissible as part of the res gestae of the crime, and we concluded that the jury was not affected by these convictions when imposing death because sufficient other evidence supported the aggravating circumstances.16 Cannon offers an affidavit in which one juror states that the evidence of rape “wasn’t the main thing” but “wоuld have something to do with” his decision to impose the death penalty.
Cannon’s claim could not have been raised on direct appeal, and thus meets the first prerequisite to capital post-conviction review. However, this claim does not support a conclusion that the outcome of the trial would have been different had the jury not considered the reversed convictions, and thus does not meet the second prerequisite to capital post-conviction review. The juror in question emphasized that his decision in Cannon’s trial was based on “all the facts”. This emphasis supports this Court’s conclusion on direct appeal that the reversed rape and sodomy convictions could not have affected the jury’s determination of guilt on the murder charge, since the jury would have heard еvidence of sexual assault as part of the res gestae of the crime. This assertion also does not affect our conclusion, made after careful review of the evidence, that sufficient evidence supported the aggravating circumstances in the absence of the convictions for rape and sodomy. The juror here referred to “facts” which would have been before him in any case, and averred that the rape was not “an extra factor” which made Cannon deserving of death. Proposition three is denied.
In Proposition IV Cannon claims that he should be granted liberal leave to amend and supplement this application since his claims cannot be and have not been fully developed at the time this application for relief was filed. We must emphasize again
Finally, in Proposition V, Cannon requests an evidentiary hearing. He specifically wishes to explore mental health issues, potential (though entirely speculative) issues of exculpatory evidence, and issues of potential childhood sexual abuse for use аs mitigating evidence. Cannon speculates that, given more time, he might develop propositions of error based on potential issues of exculpatory evidence.
This Court may issue any orders necessary to facilitate post-conviction review if we determine that controverted, previously unresolved factual issues material to the legality of the applicant’s confinement may exist.19 We have reviewed the materials presented in support of this request. As Cannon’s claims present no controverted, previously unrеsolved material factual issues, no evidentiary hearing is necessary.20 Proposition V is denied.
We have carefully reviewed Cannon’s applications for post-conviction relief and an evidentiary hearing, and find that he is not entitled to relief. The Application for Post-Conviction Reliеf and Application for an Evi-dentiary Hearing are DENIED.
STRUBHAR, V P.J., LANE and JOHNSON, JJ., concur.LUMPKIN, J., concurs in result.
Notes
. Cannon v. State, 904 P.2d 89 (Okl.Cr.1995).
. Cannon v. Oklahoma, - U.S. -, 116 S.Ct. 1272, 134 L.Ed.2d 219 (1996).
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. Walker v. State, 933 P.2d 327, 331-32 (Okl.Cr.1997).
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. Walker, 933 P.2d at 331.
. Walker, 933 P.2d at 330; Fowler v. State, 896 P.2d 566, 569 (Okl.Cr.1995).
. Moore v. State, 889 P.2d 1253, 1255 (Okl.Cr.), cert. denied, - U.S. —, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995); Fowler v. State, 873 P.2d 1053, 1056 (Okl.Cr.), cert. denied, - U.S. -, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994); Mann v. State, 856 P.2d 992, 993 (Okl.Cr.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994).
. Moore, 889 P.2d at 1255-56; Fowler, 873 P.2d at 1056-57; Johnson v. State, 823 P.2d 370, 372-73 (Okl.Cr.1991), cert. denied, 504 U.S. 926, 112 S.Ct. 1984, 118 L.Ed.2d 582 (1992).
. Proposition of error barred by waiver:
II. The state and federal constitutional guarantees to the assistance of counsel, and evolving societal standards demanding heightened reliability in capital sentencing, warrant the mandatoty appointment of two trial lawyers to represent every person accused of a capital offense. Cannon‘s death sentence, imposed in violation of these constitutional standards, must be vacated. [Cannon also cоntends that failure to raise this issue constitutes ineffective assistance of appellate counsel. Cannon has presented no authority requiring this Court to mandate appointment of co-counsel in every capital case, and we will not so infringe on the province of the legislature. Cannon admits that co-counsel was appointed in his case. As we do not find that, if these allegations were true, appellate counsel’s performance would constitute the denial of reasonably competent assistance under prevailing professional norms, the allegation of ineffective assistance of appellate counsel is denied.22 O.S.Supp.1995, § 1089(D)(4)(b)(2) .]
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. Walker, 933 P.2d at 332 (footnote omitted) (emphasis in original).
. Cannon, 904 P.2d at 102.
. Id. at 102-03.
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. On November 6, 1996, Cannon filed a motion for discovery. This motion is not timely filed, and this Court is unable to consider it. Rule 9.1 (D)(2), Rules of the Court of Criminal Appeals, 22 O.S.Supp.1996, Ch. 18 App.
Concurrence Opinion
concurs in result:
I concur, based on stare decisis, in the discussion dealing with ineffective counsel. See Walker v. State, 933 P.2d 327, 341-43 (Lumpkin, J., concur in results). I also write separately to further discuss briefly the so-called first “prong” of the test this Court uses for ineffective counsel in post-conviction proceedings.
This case, together with the other cases applying the Walker methodology, graphically illustrates the point I made in Walker. Simply requiring a petitioner to show “appellate counsel actually committed the act which gave rise to the ineffective assistance allegation,” Walker, 933 P.2d at 333, is in reality— at least оn the surface — no requirement at all, and does nothing to differentiate one case from another. As I do not believe this Court actually committed time and resources toward the formulation of a test the first part of which is essentially worthless, I must conclude there is more to this first “prong” than meets the eye. There must be more of a requirement to satisfy the prong than merely allowing post-conviction counsel to raise it in the brief.1 For instance, the prong would have more meaning if a petitioner were required to show, in connection with the inеffective counsel allegation, that some objective factor external to the defense prevented counsel from raising the claim in the direct appeal or in a timely motion for new trial. See,, e.g., McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Mur
I need not get into an extensive discussion at this point. Suffice it to sаy here that, as more cases are presented to this Court, it may become necessary to elucidate with more precision exactly what requirements must be met to satisfy the first prong of this new test.
I also disagree with the discussion of Proposition III. The issue regarding the revеrsal of the rape and sodomy convictions is a matter which could have been raised in a Petition for Rehearing. Regardless, res judicata now bars the consideration of the issue as a part of the post-conviction process. In addition, the attempt to impeach a verdict through a juror statement is improper and should be denied.
. We require citation of authority and specific references to the record to successfully raise an issue on appeal in all other cases or it is waived. The same should be required here.