Fitzgerald v. State

1998 OK CR 68 FITZGERALD, Appellant, Joseph

James Oklahoma, Appellee.

STATE

No. F-96-1200. Appeals

Court of Criminal Oklahoma. 10, 1998.

Dec.

H59

carrying bag. cash in a Git-N-Go He $55 was asked to leave. arrived at the Git-N-Go Tulsa, Conway, for Defendant at trial.

Sid store at 6938 East Pine about 2:45 a.m. The Collier, Harris, Assistant Dis- Mark Tim n clerk, Russell, William took the rifle SKS Tulsa, Attorneys, for the State at trial. trict away Fitzgerald. pointed from Russell Alfred, Defender, Public J. Assistant Paula apparently rifle at but could not Tulsa, Appellant appeal. on safety release the weapon. Fitzgerald counter, came over the and the two scuffled. Edmondson, Attorney General Drew W.A (who Russell escorted Fitzgerald had the Humes, Oklahoma, L. Assistant William rifle) out of the store and locked the doors. General, Attorney Appellee appeal. As Russell retreated behind the store coun- ter, fired, shattering turned and OPINION glass doors. His bandanna mask had fallen, and his face was visible. CHAPEL, Presiding Judge: gun pointed the in Russell’s direction and Joseph 1 James was tried shots, fired several then ran. Police recov- I, Robbery jury and convicted of Count eight spent casings ered and six bullets from O.S.1991, 801; § a Firearm in violation of store, various locations in the and one bullet II, Attempted Robbery with a Fire- Count body. was found in Russell’s bullet had That O.S.1991, 801; § of 21 Count arm in violation passed through cigarette packages, six two (Malice III, Degree First Murder Afore- partitions, counter and a roll of calculator O.S.1991, 701.7; § thought) in violation of 21 tape entering before near his left Russell TV, Robbery and Count with Firearm in armpit. pierced lung bullet his and The O.S.1991, 801, § in the of 21 District violation spine and broke two Russell had mas- ribs. County, of Tulsa Case No. CF-94- Court bleeding gunshot internal sive and died of a (1) Fitzgerald found that was wound chest. felony involving convicted of a previously ¶ store, leaving 4 After the Pine Street violence; (2) use or threat of committed the Fitzgerald robbed the Git-N-Go store at 903 prevent in order to murder avoid lawful approximately Yale at North 3:00 a.m. He (3) prosecution; probably arrest or and wore a bandanna mask and threatened the commit criminal acts of violence that would clerk with the SKS After this assault rifle. a continuing would constitute threat to soci- robbery Fitzgerald briefly returned to his jury’s ety. In accordance with the recom- home, parents’ then left the state. In Illinois mendation, the Honorable E.R. Turnbull sen- he traded SKS rifle for and .357 $100 Fitzgerald plus to life imprisonment tenced magnum handgun. He was in Mis- arrested $10,000 I, II, IV, fine on Counts and and Fitzgerald robbing the souri. confessed to Fitzgerald perfected death on Count III. has attempting two stores and to rob the store on appeal his of this conviction and raises six- Street, Pine but insisted he did not intend to thorough of error. After propositions teen injure or kill Russell. us, of the record before consideration we find stage in the pervasive error second of trial Fitzgerald represented by ap- compels us to remand Count III for resen- trial, pointed counsel until a month before tencing. right proceed pro he exercised his when evening July Fitzgerald spent of se. Trial counsel remained in the courtroom Regina standby Fitzgerald with Stockfleth and other as counsel and assisted early morning July framing objections arguments In the hours making friends. of Fitzgerald, armed with an SKS assault the court. no evidence rifle, mitigation stage pro- robbed the Git-N-Go store at 7494 in second (punishment charge) ceedings East Admiral Street in Tulsa. After the on the house, robbery (punishment he returned to Stockfleth’s or the third rob- bery wearing charges). a bandanna around his neck and ISSUES RELATING TO GUILT his decision. said he and his

OR INNOCENCE attorney agree did not on his defense but he qualifications stated was satisfied her 6 In I experience. self-representation He said claims the accepting trial court erred right was his as an American citizen and purported right waiver of the constitutional he preferred indicated to take control of his to counsel where there no determination was. case since he would have to live with the competency purported waiver was outcome. The trial court found Fitzgerald knowingly intelligently made thus faculties, violating your was “in provisions. you constitutional A crimi control nal right defendant has absolute to coun on, going understand what’s you under- sel, right clearly but he waive that if he conversations, stand the meaning and the unequivocally pro declares his wish consequences of conversations that we’re pro ceed se and the trial court determines: having.”6 The trial court advised (1) competent the defendant is to make that charges, nature of the the offenses (2) voluntary, decision and the waiver is charged, range punishment and the possi- knowing intelligent.1 The competency ble for each offense. Trial counsel confirmed standard for the waiver of to counsel is she explained Fitzgerald’s had Sixth Amend- trial, higher than that for to stand rights. ment repeatedly The trial court ad- and a trial court need make a separate deter Fitzgerald against vised self-representation, competency only mination of where the court pointing out did not know what he has reason to doubt a compet defendant’s doing, decision, that this awas bad competent ence.2 A defendant is if he has that Fitzgerald get could penalty the death present ability to consult with his attor go pro because he decided to se. In subse- ney and a rational and understanding actual quent proceedings motions the trial court proceedings against him.3 The trial explained procedures gave court competent Fitzger- court must advise a and defendant of charges, the nature of the comprehensive ald a offenses written outline of the him, against range punishment, and structure, trial which included the court’s dangers self-representation.4 This questions voir dire penalty death and consistently Court has impose "refused to a Fitzgerald indicated when would have the courts, list of factors on trial holding instead opportunity evidence, argue, present and that a valid waiver is determined from the make motions to the court. The trial court total circumstances of each case.5 arranged Fitzgerald to have reasonable opportunity to move about the courtroom and ¶ Fitzgerald represented by was present documents to the court or witnesses appointed throughout prelimi counsel and defined the proceed- court’s role in the nary 18, 1996, proceedings. April On a hear ings. Throughout, the trial court stated if Fitzgerald’s was held at which motion to Fitzgerald changed standby his mind counsel (trial proceed pro granted began May se was re-appointed him, would be 20). represent even questioned The trial court Fitzgerald begun, if trial urged had and extensively Fitzgerald to to determine whether he was dis attorney’s satisfied with his representation Fitzgerald reconsider. insisted he wanted to and whether he understood the consequences represent himself. 806, 835-36, California, Braun,

1. Faretta v. 422 U.S. 4. 909 P.2d at 787. 2525, 2541, (1975); S.Ct. 45 L.Ed.2d 562 Braun State, 42, v. 1995 OK CR 909 P.2d cert. 71, 5. Id. at Edwards v. 1991 OK CR denied, 1144, 1438, 517 U.S. 116 S.Ct. 673. (1996). L.Ed.2d 559 Moran, 509 U.S. 401 n. Godinez April Hearing Transcript 1996 Motions at (1993). S.Ct. 2688 n. 125 L.Ed.2d 321 Cargle 136 L.Ed.2d 54 competency require separate trial court determined that Fitz- sufficient to a 8 The competent competency counsel gerald proceeding. was waive of his finding was in control gave also knowing, a proceedings. faculties and understood the intelligent, voluntary waiver. He denied Fitzgerald claims the trial should have during April his decision was coerced separate hearing a to determine conducted 1996, hearing and not suggest does coercion presented because he infor- competency had appeal. Fitzgerald prior had several con raising competency mation a doubt about his victions and was familiar with the criminal support requests counsel. of his waive justice system. He was informed of the na assistance, for state-funded offenses, charges, ture of the range (a) that he suffered from submits: evidence punishment repeatedly advised that this (b) diabetes; juvenile-onset he had evidence was a bad decision. Over the course of gunshot requir- received wound head hearings, several explained trial court (c) discussing ing surgery; reports medical procedure courtroom and the of each role symptoms ju- physical some associated with party, standby including Fitzgerald and dis- venile-onset diabetes and effects the counsel. opportunities Offered several to re physical psychosocial ease have on decision, Fitzgerald clearly consider his development, describing as well as evidence unequivocally proceed stated his intention to person the effect of alcohol on a with this pro se7 The record shows waiver (d) disease; assertions that he suffered some right knowing of his to counsel was (e) physical symptoms; of these voluntary.8 proposition is denied. drinking night that he had been murder. This information was not 10 In III suggestion support claims the trial court showed obvious bias in right incompetent depriving right stand trial or waive this case him of the his. to an Fitzgerald’s competence impartial judge to counsel. violation of constitutional any questioned point proceedings, provisions. at in the The Oklahoma Constitution fair, support guarantees and the record does not an inference to a impartial personal that his decision to waive counsel resulted trial not tainted control, poor impulse exaggerated prejudice from an or bias of the trial court.9 A defen reaction, alcohol, prejudice emotional a reaction to dant show the must trial court’s cognitive Nothing against materially rights other defect. him affected trial, suggests Fitzgerald appeared prejudiced record incom- and the defendant must be petent during or in an unusual manner the trial actions.10“The decision to court’s acted se, hearing proceed pro on his motion to recuse is of the trial within discretion court, no ruling evidence introduced then or at and this Court will disturb that proceeding Fitzgerald’s other cast doubt on for an abuse of discretion.”11 Abuse of intelligent knowing, judges to make an discretion has trial occurred where personal waiver. This Court cannot find that become intertwined in cases due to Fitzgerald’s relationships showing information about diabetes and or take actions actual injury prejudice against head alone raised a doubt about his a defendant.12 State, Faretta, 7. 422 U.S. at 95 S.Ct. at 2541. 12.Wilkett v. 1984 OK CR 674 P.2d 573 defendant, (trial expressed court resentment of Braun, 909 P.2d at 787. dishonest, accused trial false and dila- counsel action, tory annoying pre-trial con- and revealed II, 6; Bryan State, § 9. Okla. Const. art v. 1997 members); family tacts with defendant’s Merritt 338, 354-55, OK CR nied, 935 P.2d cert. de Hunter, (trial 623 court v. 1978 OK 575 P.2d -, - U.S. 139 L.Ed.2d subpoena expense without at own traveled testify against opponent pending in defendant's 354; case); Wilson, Bryan, Sadberry 935 P.2d at v. 1987 Kansas v. 1968 OK Stouffer 1349, 1353, (trial OK CR award 441 P.2d 381 court must brother S.Ct L.Ed.2d Carter fees); Sullivan, U.S. attorney Larecy State ex rel. 996-97. (wife’s (1952) oppo- 248 P.2d 239 207 Okl. politi- for trial nent in divorce case worked Bryan, P.2d at 354-55. continuing threat Fitzgerald support aggravating claims trial During denial of his repeated Judge court’s Ake claims circumstance. discussion him deprived shows actual bias which of a Turnbull remarked that he believed the exchange fair and reliable trial. He cites an have this information it should since was the during hearing August in held Fitzgerald same crime had committed in this Judge which trial asked Turnbull to counsel case. This comment does not reflect bias or previous at a recuse. Counsel recalled prejudice requiring recusal. We have never hearing, Judge Turnbull said he did not be personal held a trial court must have no defense,13 possibly be lieve in this sort innocence, opinions regarding guilt or or quite gotten prosecutor cause he hadn’t prejudice against particular crime. The Judge replied that out of himself. Turnbull question is the trial personal whether court’s misunderstood, thought he counsel had that opinion, any, jury, if is communicated to the out he have said he was fresh skewing fact-finding and deliberation prosecutor’s trying for that reason office and process.15 exchange this As was out of the that he impartial, to be fair and believed jury’s hearing, any possible negative infer- every says appropriate. in the law defense prejudiced Fitzgerald. ence could not have suggests exchange in record Finally, Fitzgerald ¶ 13 claims bias misunderstanding. Nothing fact based on a in the trial court’s refusal to in miti instruct subsequent proceedings Judge indicates gation was under the influ Fitzgerald’s Turnbull did not believe de fense, ence of alcohol at the time of the disagreed he crimes. frequently but he said Judge objec Fitzgerald’s Turnbull sustained the State’s regarding with counsel burden tion showing he was to this instruction without comment but make a before entitled to Felony experts present Capital that defense to observed in his Report order to jury; disagreed he also evidence was was under necessary claim that the influence of alcohol at the time of the exchange simply this evidence. This does puzzling crimes. we find this decision While (see IX), prejudice against Fitzger or nothing show bias in the record ald. supports an inference that the decision was against Fitzgerald. made because of bias complains also of a made, Judge comment Turnbull out of the perform The trial court must its hearing jury, during a discussion of duty to see both sides have a fair trial.16 evidence to be offered in second of None of the comments discussed above trial. The State had filed notice that it against Fitzgerald infringed showed bias robbery would introduce an Indiana armed on his to a fair trial. proposition support conviction to circum aggravating is denied. prior stance that had committed violent felonies. offered When SECOND STAGE PROPOSITIONS offense, stipulation enter a to Brewer14 REQUIRING CUMULATIVELY objected claiming the State details of the REVERSAL prove crime would be admissible to continu ing Judge threat. Turnbull found in favor of 15 Fitzgerald claims in II given by since the State had not no that the trial denying Fitzger- court erred prior tice that this offense would be expert proper showing, used to ald funds after a Ake (1983) (defendant campaigns; opponent attorney cal was advisor to L.Ed.2d 999 must be allowed court). stipulate trial prior felony to that convictions involved person). the use or threat of violence to the Judge referring Fitzgerald's 13. to Turnbull was explain juve- the effects of for to State, 78, 15. Arnold v. OK 1990 CR 803 P.2d diabetes, alcohol, possible nile-onset and neuro- 1148-49; 1145, State, 59, T.R.M. v. 1979 OK CR logical impairment head wound. from the 902, 596 P.2d 905. 128, 54, State, Brewer v. 63, 794, denied, Bryan, S.Ct. cert. 935 P.2d at 355. non-expert provided experts, and assis- a be right present of the depriving him thus tance, creating the expense. State the first-stage defense and way by System, Legislature of miti- penalty Indigent the death Defense defense subpropositions in two gation. consistently He claims that the Executive provided has . funds to hire denial of the trial court’s that System approve Director of that shall diabetes and juvenile-onset on assistance, an witnesses, non-expert when deprived him of neuropsychiatrist necessary particular those services are charges. We against to defend provided Legislature has also case.22 The its discre- the trial court abused determine population is over that in counties where experts. denying Fitzgerald funds tion in 200,000 for indi- compensation witness was error in both of the funds While denial paid by the court gent defendants shall be harmless. first error was stages, the here, not with the fund.23 are concerned We stage. in second error was not harmless proce- what pays of who technicalities followed, with the payment are but dures tirelessly and are enti- intention that all defendants clear provide State constantly requested that the that necessary expert assistance when tled for a neu- Ake v. Oklahoma17 funds under By extend- constitutes a basic defense tool. juvenile- an ropsychologist and Ake, Legisla- that the we have ensured apply had to diabetes. onset indigent preserved, intent de- ture’s defended court because he was the trial in all counties of Oklahoma have fendants Office County Public Defender’s the Tulsa necessary for an access to the basic tools Indigent Defense rather than the Oklahoma adequate defense. funding requests System, which handles such indigent an internally.18 Ake held that when three-part test Applying showing that a preliminary defendant makes balance; (1) Ake, Fitzgerald’s forth in we set likely the offense is sanity at the time of accuracy pro private interest trial, he is enti significant factor at to be a (2) ceedings; the State’s interest affected expense, who experts, at the State’s tled to assistance; (3) proba providing the evaluation, pre preparation and will assist in safeguards sought procedural ble value This Court has of the defense.19 sentation inaccuracy proceedings the risk in the any expert principles of Ake to extended con requested assistance.24 We without doing adequate defense.20In necessary for an the inter interest and clude so, necessity pro emphasized the we have outweigh accuracy proceedings est of tools” viding with the “basic each defendant expending in not funds. the State’s interest comports for his defense.21 came to this apparently trial court also indigent defendants The Legislature’s intent State, OK CR 84 L.Ed.2d 53 Toles v. U.S. 105 S.Ct. 17. 470 187-88, held there was no Ake violation we approve where the Executive Director failed to attorney’s request pharmacologist 1355.4(D). an for a O.S.Supp.l997, § 18. 22 investigate develop voluntary intoxication there, distinguishable because defense. Toles is Ake, S.Ct. at 1096. 470 U.S. at Director of we determined that the Executive team, and OIDS was a member of the defense Rogers v. 1995 OK CR 890 P.2d funding deny the decision to was thus trial strate- U.S. course, Here, gy. court is not a trial therein). (and cited L.Ed.2d 215 cases team, decision to member the defense its deny strategic funds cannot be considered a Washington CR 21. 1990 OK 800 P.2d by move We the trial court's the defense. review 252, 253; OK CR see also Ake v. 1989 action for discretion. abuse of (this 1 Court follows other P.2d 464 n. concluding applies any expert states in Ake Payment O.S.Supp.1997, pursu- § defense). 23. 19 138.8. is necessary adequate by governing procedures ant to established board of the court fund. 1355.4(D) (expert O.S.Supp.1997, § 22. 22 wit- approved of authorized nesses contractors; from a list 78-80, Ake, non-experts authorized the Exec- 24. at 105 S.Ct. at 1093- 470 U.S. 1094; request approval). upon Rogers, and at 966. utive Director conclusion, repeated which, Fitzger- symptoms occurring as its denials of after a head wound, injury, ald’s turn instead on Fitz- signal whether brain and a de- gerald required preliminary scription neuropsychological had made tests nec- showing. essary to determine the existence and extent (7) injury; of such an an affidavit from the claimed that the combina Deputy then Capital Chief of the Trial Divi- diabetes, juvenile-onset tion of probable his sion, Indigent System Oklahoma Defense damage injury, brain from his head and (OIDS), who believed that would drinking (including drinking habits before qualify being funds he de- crimes) committing the affected his mental (8) OIDS; fended information about Fitz- processes deprived and him of the gerald’s family childhood resulting and life necessary form the intent to kill for malice (9) diabetes; from Taylor’s and Dr. cur- assistance, qualify murder. To for expert psychological noting rent Fitzger- evaluation parte defendant must make “an ex threshold diabetes, injury ald’s diagnosing head and showing sanity to the trial court that his is alcoholic, depressed, poorly him as with reg- likely significant to be a factor in his de ulated probable neurological diabetes and ....” fense have We held the threshold impairment, strongly recommending showing is met where a defendant shows neurological testing plus consultation with a need and that he prejudiced by will be juvenile-onset expert. diabetes This is far lack of Fitzgerald pre assistance.26 than, argues, more as the State an “underde- sented evidence to support his claims at four claim”; veloped Taylor’s Dr. report, com- parte ex pretrial hearings; parte motions ex evidence, bined with the certainly other con- hearings were also held after the stage first enough tained information to meet before second instructions were - requirement threshold for a preliminary time, given. Each the trial court determined showing.27 Fitzgerald had prelimi failed to make the nary showing necessary under Ake. 1Í20 argued to the ¶ 19 Over the course of hearings, these trial court and appeal claims on (1) Fitzgerald presented: evidence admitted information is sufficient to meet the Ake preliminary hearing that he had been agree. threshold. In applying We for funds drinking and was under the influence of alco- experts, Fitzgerald to hire merely required is (2) crime; hol at the time of the medical physical psychological to show his condi juvenile-onset evidence that he suffered from tion at the time signifi of the crime will be a diabetes gunshot and had received wound cant in his defense. Ake stated a factor (3) 1985; to the head requiring surgery in defendant has a assistance “to physical, medical articles on psychologi- help insanity determine whether the defense cal, psychosocial juvenile-onset viable,” effects of as well as to an appropri conduct (4) diabetes; information that the combina- ate examination and assist tion juvenile-onset of alcohol and evaluating, diabetes preparing, and presenting his def could poor judgment, result in poor impulse consistently ense.28 trial court held control, exaggerated respons- emotional proper showing, to make a Fitzgerald would es; (5) an detailing Fitzgerald’s affidavit actually have to demonstrate that he suffered physical psychological symptoms corre- from these conditions and problems sponding symptoms discussed in the time of the require offense. To such specific (6) literature; medical an affidavit including ity preliminary in a showing renders the Ake a neuropsychologist’s general explanation of categories of pointless.29 assistance aIf de- Ake, Ake, 82-83, 25. 470 U.S. at 105 S.Ct. at 1096. 470 U.S. at 105 S.Ct. at 1096. Rogers, Lockhart, P.2d at Tibbs v. 29. Cf. Starr v. 23 F.3d 1290-91 OK CR (8th Cir.), Starr, cert. denied sub nom. Norris v. 513 U.S. 115 S.Ct. 130 L.Ed.2d 409 (1994) Mississippi, Caldwell v. (ability subpoena n. question State 2637 n. L.Ed.2d 231 requirements examiners does not fulfill Ake re (1985). assistance, garding presentation). evaluation and in- the crime.31 Sufficient evidence must be initially that he fendant must be able to show to show a defendant was so intoxi- time troduced actually at the suffered from a condition offense, powers mental were overcome and expert cated his of the there is no need for criminal Fitz- de- he was unable to form intent.32 determining assistance in whether viable, prejudiced by the trial gerald nor he was showed fense based on that condition have ruling experts court’s since the would to evaluate expert an be needed will evidence that he was intoxicated tied the and the defense. to that he the time of the crimes evidence showing a of need made (and, possibly, organic suffered from diabetes evidence, includ- when he detailed experts have ex- damage). brain would (1) report,30 that he suf- psychologist’s of plained to the how combination chronic, con- long-term physical fered from physical/mental those factors created two components psychological dition with unable to was condition which alcohol, his may have affected combined with necessary malice murder. form the intent night of judgment and behavior testimony strengthened would have crimes, juvenile-onset of a and assistance not intend to Fitzgerald’s claim that he did necessary expert to confirm diabetes was him to rebut kill Russell and enabled (2) had suffered explain that connection and very argument effective for malice State’s damage probable organic brain a wound with murder, large part was based in which judgment have affected his which could state of mind State’s version crimes, and night which behavior both need at the time. showed specific only through could be determined the trial court’s denial of prejudice, neuropsychological testing available his’request expert funds was error. prej- community. showing discuss his We the trial regard stage to each udice with Having error in the found below. stage proceedings, we must determine first analysis applies. Fitzger whether harmless error address 22 We first Frederick v. State33 for Fitzgerald relies on deprived that he was ald’s claim analysis cannot that harmless error first-stage Since his his claim present a defense. arrest, apply. In Frederick the defendant’s stated he did not in Fitzgerald has insanity; the denial of Fitzgerald claimed he defense was erroneous tend to kill Russell. completely any denied expert an Ake him experts during the first needed the charges. This against the effectively ability that to defend present his defense trial to intoxication, permeated the error special cir Court determined voluntary under his trial, look at cumstances, since we could not incapable him of form entire rendered behalf but presented on Frederick’s necessary for malice murder. ing the intent might speculate on what it be forced to Voluntary complete is not a de would intoxication circum Under those narrow may be consid have been. to malice murder but fense stances, an Ake held the denial of had we determining whether a defendant ered in analysis. error subject to harmless during kill the commission of was the intent get expert. diag- trying an Ake to use an examined and fact 30.The appro- emphasized a defendant is entitled Taylor change decision Dr. does not our nosed 82-83, Ake, priate expert 470 U.S. at assistance. requested experts his he was entitled to Taylor appro- not the S.Ct. at Dr. diagnosed Taylor, psychologist, Dr. under Ake. priate expert in this case. qualified could but was not as best she diagnose explain Fitzgerald’s adequately State, P.2d 1982 OK CR 31. Edwards v. to form which went conditions Jones v. Taylor explicitly recommended fur- intent. Dr. P.2d testing by appropriate ar- those ther 74 L.Ed.2d S.Ct. a defendant is is not a case where eas. This to have ac- provided with but wishes an OK CR Rather, 32. Jackson v. Fitzger- experts. or better cess to more 875, 892. Taylor in an effort to ald was examined Dr. appropriate assis- show that he needed was, fact, 33. 1995 OK CR prepare his defense—he tance to 1168

However, that, agree facts, we Tenth in a and believed case with similar that, Eighth generally, right Circuits “a to payment OIDS would authorize re- However, quested experts. a which defendant is not entitled absent some the affiant was fairly showing threshold be in position defined not himself a to [cannot] authorize such as basic to expenses, opinion the structure of constitutional and his an is at best edu- that, guess. trial.”34 We hold absent the narrow Absent cated some indication that Frederick, circumstances presented differently harm- was in fact treated analysis applies less error to error. similarly Ake from other defendants situ- ated, will not we reach the merits ¶ 24 Having concluded harmless claim. analysis applies, error must determine we ¶ 26 We next Fitzgerald’s address claim beyond whether this error is harmless a rea deprived he miti- present to Although testimony doubt.35 sonable gating Fitzgerald argues evidence. explain helped Fitzgerald would have his experts, without he opportu- was denied the intent, ability form state mind and to it nity present mitigating evidence. He ar- necessary was not to raise the issue of volun gues gunshot the mere facts of the wound tary may intoxication. A defendant claim and his diabetic condition particularly are not voluntary intoxication as defense malice mitigating, present and he experts needed overwhelming where murder evidence of in physi- effects these.conditions had on his presented. experts toxication is No are cal, mental and social development, as well as Although needed to raise the defense. family the effect his diabetes on his conflicting, evidence of intoxication was Fitz Indeed, effectively childhood. the State ar- gerald voluntary could have made his intoxi gued at trial that neither of these conditions cation claim on based that evidence without mitigating suggested gunshot Thus, relying testimony. Fitzger might wound work in aggravation. ald was not denied his defend charge. against the malice The murder trial ¶ 27 It is settled that defen experts court’s erroneous denial of Ake dant in mitigation any aspect of beyond first of trial was harmless character, or any record circum reasonable doubt. stances of crime.36The recog trial court 25 also claims in this nized this when it stated the about section that the trial denial of Fitzgerald’s court’s funds injury diabetes and brain would equal protection However, under Ake resulted in an appropriate mitigation. be since violation. He claims that had his erroneously crimes believed county except committed in been Okla an showing, suggested, had not made Ake it relatives, homa Tulsa counties he would have been have his “You can friends or doctor represented by funding testify conditions, OIDS and entitled to that he had these or has 37 asking without the trial court. reject had these conditions.” sug We support in the claim gestion lay record for his that he provide witnesses an effec funding experts would have received from tive substitute for testimony these is an OIDS affidavit the then Chief of the circumstances.38 friends Division, Capital OIDS Trial who family claimed he could have regarding symp- testified (10th 869, 875-77, Reynolds, (1982); 34. Brewer v. 51 F.3d 1529 71 L.Ed.2d 1 Lockett v. Cir.1995), Ohio, 586, 604, 2954, 2964-65, 116 516 U.S. S.Ct. U.S. 438 Starr, (1996), (1978). quoted 133 L.Ed.2d 862 23 973 57 L.Ed.2d Oklahoma, F.3d at v. see also Castro Cir.1995) (Ake (10th F.3d Hearing violations 37. November 1995 Motions Tran- subject analysis). script harmless error 9-10. 18, 22, Chapman California, Ake, v. 386 U.S. (lay U.S. at 105 S.Ct. at 1095 824, 827, S.Ct. merely 17 L.Ed.2d 705 can symptoms they witnesses describe state, believe to a relevant defendant's mental 1, 4, Carolina, Skipper U.S. identify . South symptoms while can of insan- (1986); 1670-71, Castro, (defendant S.Ct. ity); 90 L.Ed.2d Ed 71 F.3d at 1514 entitled Oklahoma, dings testified). although lay S.Ct. witnesses by the Su- observed, any limitation explicit his absence of they and behavior toms and extension of Ake preme given our have testified Court and surgeon could pediatrician necessary for any and treatments. an diagnoses their assistance regarding However, defense, could not effective- logic witnesses and fairness dictate adequate these phe- particular problems ly explain the should receive ex- qualified that a defendant juvenile-onset diabe- associated with any nomena State evidence of pert to rebut assistance tes, they physiological describe nor could comity continuing Principles threat. also resulting alco- effects when psychological any com- support our conclusion absent combined. These wit- hol diabetes are contrary, will follow pelling reason to the we neu- certainly neither conduct could nesses opinions persuasive the Tenth Circuit’s on present the result ropsychological tests nor issue.43 this federal constitutional jury. As other wit- tests to the of those by in- prejudiced 29 mitigating evi- present could not nesses continuing threat respond dence, preju- has shown he was testimony. present- charges He by the trial court’s decision. diced mitigation. jury could ed no evidence in entitled to Fitzgerald was also 28 mitigating only possible consider the circum- charge to rebut the State’s expert assistance instructions, any stances listed in the without continuing to soci be a threat that he would actually why factors indication of those ety. that a Ake held argued mitigating. The State that neither expert assistance where the State entitled to were in his diabetes nor the 1985head wound his future evidence of presents psychiatric any that the way mitigating suggested Circuit has ex dangerousness.39 The Tenth robbery Fitzgerald engaged fact in armed principle, concluding a defendant tended this that factor being after shot in the head made presents the State to an “if is entitled anything. Only requested aggravating, if otherwise, evidence, of the de psychiatric testimony fully explained could have continuing dangerousness or future fendant’s mitigating of these conditions. nature sentencing society during the threat recognized this. implicitly The trial court indigent defendant establishes phase, and stage, After both sides had rested second signif his mental condition is the likelihood mo- judge again denied Ake Like Tenth mitigating factor.”40 icant tion and remarked: Circuit, rejected have a narrow construc we could have intro- I think that focused, on whether of Ake.41Ake not tion evidence, mitigating evidence that duced and all on presented expert but the State to, he wished of a probable “the value that the assistance much of infor- mation, all of the information have in this area and psychiatrist will if would, jury of to inform this In the he wished risk attendant on its absence.”42 83, Reyn Ake, very issue in Brewer v. overturned on this U.S. at S.Ct. at 1096. 470 105 1519, (10th Cir.1995), olds, cert. 51 F.3d 1529 1513; Brewer, Castro, F.3d at F.3d at 936, 1123, denied, 116 S.Ct. 516 U.S. 333, (10th Saffle, Liles v. 945 F.2d 340-41 (1996). was decided imme L.Ed.2d 862 Brewer Cir.1991), Ake, adopted diately had when this Court after L.Ed.2d 123 possible construction of that deci the narrowest significantly jurisprudence has Our Ake sion. Rogers, 890 P.2d at 966. compel changed offers no since then. The State 1096; Liles, Ake, 105 S.Ct. at 470 U.S. at fairness, sense, ling ignore .or common reason 945 F.2d at 341. fact, urged the State us to the Tenth Circuit. view, adopt set in these the Tenth Circuit’s forth Trimble, 1990 OK 795 P.2d 43. McLin v. cases, subject violation is that an Ake same (Justice dissenting); Opala, Dean 1047 n. 17 analysis. We decline the State's harmless error Crisp, P.2d over- portion adopt of the Tenth invitation to grounds by Edwards ruled on other reasoning rejecting Ake while other Circuit’s State cites 316. The OK CR reasoning cases. The found within the same suggestion that we need these cases for their adopt only possible Brewer here would However, reason to reasoning. adopt the Tenth Circuit's reach the merits of this be in order to refuse to rely suggests on Brewer v. simply we the State which was issue. P.2d CR 1986 OK jury, would have been understood stage, requires the second this error reversal they would have capital sentencing. found out whether and remand for they thought appropriate that was or not. ¶ 31 In Proposition Fitzger IV He chose in all instances not to argues ald the trial court erred death any mitigating evidence whatsoever.44 qualifying fulfilling legal without its the. much, jury If the could have understood duty qualify jury, resulting to life the in a if all, Fitzgerald’s of evidence without ex- guilt/death jury prone violation of constitu experts necessary perts, pres- then were provisions. tional designed Voir dire is evidence. mitigating ent all the implied discover actual and bias and deter jurors’ mine whether views would substan must 30 We determine whether tially impair performance juror the duties Although Fitzgerald this error is harmless. in accordance with the trial court’s instruc should have had to rebut the continu juror tions and the oath.48 who Jurors would ing charge, threat this evidence would have automatically against vote either for or the probative ag been of much more than that penalty necessarily death will fail to consider Thus, gravating this circumstance. Court presented all the evidence aggravation simply cannot invalidate circumstance mitigation should be removed for cause.49 reweigh remaining the evidence. As Upon request, a defendant’s a trial court Fitzgerald presented no evidence at all in juror must whether determine each can con mitigation, speculate we cannot about what punishments life sider and life without experts might these have said nor weigh the (“life- parole penalty -as well as the death actually, presented against the evi jury).50 qualify” the It is not error for a trial aggravation.45 Although lay dence offered in deny court to defendant’s that the available, witnesses were we have deter life-qualify jury court where trial counsel they effectively mined that could opportunity has the questions,51 to ask those evidence, mitigating so fail defendant, attorney, but a or the trial severity ure to call them does not lessen the life-qualifying must be allowed to ask say of this error.46 As we cannot this evi questions after request.52 the defendant’s mitigation swayed dence in would not have juror, 23, 1995, least one we cannot find this error 32 On Fitzgerald March beyond harmless a reasonable Qualify doubt. filed a Motion Life Of [sic] the contexts, other vigilantly pre Jury. this Court has Fitzgerald requested jurors after rights served defendants to death-qualified, the trial court ask sev (or psychological introduce mitigat evidence in questions substantially en enumerated ion.47 In combination with other questions).53 errors in similar The trial court denied added). State, Transcript 28, 7,¶ (emphasis 44. Trial at 1154 51. Cannon v. 1998 OK CR 961 838, 844, P.2d 69 OBJ 1804-05. State, 45. v. Frederick 1995 OK CR 902 P.2d 1092, 1098. Hammon, 52. 898 P.2d at 1300. Castro, 46. 71 F.3d at 1514. Summarized, (1) questions 53. were: Whether State, 934; 47. OK Allen v. 1997 CR 944 P.2d juror penalty believed the death was ordinari- State, OK Wisdom v. 1996 CR 918 P.2d 384. ly appropriate punishment for first de- murder; (2) gree any If there was case in which Witt, 412, 424, Wainwright v. 469 U.S. juror penalty would not favor the death as 844, 852, (1985); S.Ct. 83 L.Ed.2d 841 Mitchell murder; (3) punishment premeditated malice 1186, 1195, v. juror Whether the could consider a sentence less 516 U.S. 116 S.Ct. convicting Fitzgerald than death after of first (1995). L.Ed.2d 50 murder; Whether, (4) degree convicting after murder, juror of malice would Illinois, 719, 728-729, Morgan U.S. v. presume parole prop- that life or life without (1992); S.Ct. L.Ed.2d 492 With presumption er proof until that was overcome Illinois, 521-22, erspoon v. beyond penalty a reasonable doubt that death 1770, 1776-77, 20 L.Ed.2d 776 (5) only appropriate penalty; was the After hear- Morgan, finding Fitzgerald U.S. at S.Ct. at guilty all the evidence and murder, degree CR juror Hammon 1995 OK of first would the have (6) preconceived penalty; notions about Would 18, meaning parole. Only the April of life without this motion 'without comment at Having second of these has merit. hearing.54 motions refused claims itself, jury court was life-qualify the the trial complains first Of required to allow counsel to do so. Subproposition A that the trial court exclud course, tri- Fitzgerald represented himself at Strode, ed evidence from Mr. Steve from the inartfully al. Three times at- Corrections, Department of who have would questions by tempted life-qualifying to ask testified about the conditions under which they asking jurors under what circumstances life would serve a sentence of sentence, impose would a death and each imprisonment possibility pa without the objection time the State’s was sustained. role. claims this information objec- The record is unclear these whether should have been under purely tions were sustained due to form Simmons South Carolina.55 This Court question life-qualifying of or due to the the apply has held does not Simmons to Okla substance. The result unfortunate capital sentencing homa’s structure since despite Fitzgerald’s request, the was not capital juries Oklahoma are aware that a life-qualified. Under the circumstances of life, may be sentenced to life with say this case we cannot this does not result possibility parole, out the of or death.56 We amount to an of discretion. abuse specifically have it held was not error to ¶ a proper 33 must the rem- refuse defendant’s to call Mr. We determine testify Department to edy for this In Hammon we reversed Strode about of Cor error. policy practice.57 subpro- rections resentencing for where the trial court re- life-qualify position fused to allow the defendant to is denied. jury.

the In Cannon we held it was not Fitzgerald correctly argues in the trial life- error for court to refuse to ask Subproposition B that evidence of the nature qualifying questions trial counsel suc- where escape of his conviction to admissible cessfully did so. This situation falls between aggravation. rebut evidence introduced in A the two. We need not determine whether right opportunity defendant has a to fair to per this error is reversible se but find it accusations, against defend the State’s contributes to an of which accumulation error the rules of evidence should not be mechanis stage necessitates reversal of the second tically applied capital to defeat that in a proceedings the and a remand resentenc- case.58 introduced evidence of a The State charge. murder sup escape conviction in Nebraska prior port continuing 34 In claims the threat and violent VI felony Fitzger by excluding aggravating trial court erred circumstances. the threat, ruling the continuing by failing objected pretrial ald because in a protect rebut Fitzgerald’s right sentencing, escape charge court had held the would not reliable stage; by denying capital sentencing requested instructions on the be admissible ineligible wrongly juror punishments parole all a defendant is thus the consider three deter- (7) only sentencing options mining appropriate punishment; are life with believes the death). parole juror required he is Does the understand never may always impose penalty, the death pa- choose to sentence to life without 26, 1130, State, 56. Hain v. 1996 OK CR — O.R. at 118—119. -, 588, role. 1145, U.S. 117 S.Ct. cert. 517; Hamilton v. 1997 OK CR 136 L.Ed.2d 14, 1011-12, 1001, denied, -U.S. P.2d argued questions improper State 54. The -, 139 L.Ed.2d Trice v. 118 S.Ct. jurors because should be asked whether P.2d 351-52. they punish- consider the three could alternative This was an inaccurate ments. statement law. Hamilton, record does not reflect whether the trial The at 1011-12. adopted reasoning reaching this its deci- sion. Mississippi, 410 U.S. 58. Chambers (1973); 35 L.Ed.2d Green S.Ct. Georgia, 99 S.Ct. 2151— U.S. 55. 512 129 L.Ed.2d (1994) (error capital jury where a is not told 60 L.Ed.2d 738 modified, escape but the have been admitted into evidence for ruling this was later use specifically mentioned. charge argument. genuine was not The record reflects misunderstanding the State be- Through misunderstanding Fitzger which resulted in conviction would be admis- escape lieved the surprise having against ald’s to defend this sible, stand-by counsel but charge in this of the case. To reflex escape the State the thought she had told ively apply the rules of evidence on document and believed it would not be was non-violent party questioned no authentication when argued that the convic- admitted. authenticity actual of the document and to support aggravating cir- tion could refuse to admit the evidence because it was non-violent, it was but cumstances because not introduced a few moments earlier before Fitzgerald rested without he was overruled. jury completely deprived Fitzgerald presenting evidence. respond accusa State’s exactly tions. This is the sort of action the discussing proposed 37 After in- structions, Supreme Court condemns.59 Several other standby presented Defen- counsel copy support pri- convictions were admitted to dant’s Exhibit non-eertified Information, circumstance, felony aggravating showed that Nebraska which or violent not, alone, escape conviction was a non-violent walk- standing error would away program. However, from a work release require reversal. combined with State nature did contest non-violent stage, other error in the second it does ne prosecutor escape. admitted that cessitate reversal and remand for resentenc- the Information was the same document at- capital charge. murder copy Judgment tached to the certified Finally, Fitzgerald argues in Sub- by the to and Sentence introduced State proposition C that the trial court in erred support aggravating circumstances but denying requested his instructions on the would not claimed that State be allowed meaning parole. Fitzgerald of life without to admit a non-certified document and what acknowledges previously we have held it is goose was “sauce for the was sauce for the not error to refuse a defendant’s to is, course, gander.” This an inaccurate parole.60 instruct on life without We will not perception regarding capital the law subproposition reconsider this decision. This right present defendant’s to evidence rebut- is denied. ting aggravating circumstances. The trial appeared Fitzger- more concerned that Fitzger 40 In VII attempted to ald had not introduce the Infor- ald claims the trial court’s failure to conduct Standby mation before he rested. counsel hearing, light a Wallace in of his failure to mistake, her replied that was but the trial any mitigation introduce penalty phase court noted this matter was not included in trial, requires sentencing hearing. a new they things the list of counsel had said need- Fitzgerald presented mitigating no evid bringing jury ed to do before in and back ence.61 This Court held in Wallace untimely ruled the document was and inad- that right State62 a defendant waive his missible. present mitigating only to evidence after a rested, parties mandatory hearing by Although both had the trial court in (a) had not been argu instructed nor which the court finds the has defendant heard, easily ment and the document could capacity to understand the choice be- recognizes mitigating 59. One can assume the State based on Instruction which listed this, respond Supreme itas does not Court gleaned factors from evidence merely regarding cases at all cites cases stage. listing first The existence of an instruction authentication of documents which is not the mitigating separate question factors is from the issue here. mitigating of whether introduced evi- dence in the second of trial. He did not. Bryan, P.2d at 364. 504, 508, 512-13, mistakenly argues 61. The State that 62. present mitigating did evidence. Three times the present trial court noted chose not to L.Ed.2d 160. mitigating argument evidence. The State’s is witness, gating and he was aware he could knowingly and death and to tween life present closing: miti- have her. said in right his called intelligently waive (b) defen- questions gating evidence opportunity I’ve had the more than once knowledge and about his record dant on the my get up open up the stand and whole its mitigating evidence and understanding of you. why know but I didn’t past to I don’t No sentencing process. role in the happen. not I do that. I allowed that held, and the entire hearing was Wallace quite strongly feel that it should come indicate the trial court does not trial record me, my past from should come from me Fitzgerald re- or advised questioned ever first, you from Mr. Harris. I before heard understanding of knowledge or garding his might be was advised that not too (in- mitigating evidence importance smart, unfortunately I listened hearing in which cluding the advice, wrong I think that that was of me. counsel). Wallace did right waived change I can’t it.64 hearing failure to hold this whether indicate admission, his failure to call plus This this reversal. We believe requires automatic family person could member or other who error, than analogous to trial rather is error him, speak suggests Fitzgerald did about nature, and is thus sub- being structural personal information understand the effect set ject error review.63 Wallace to harmless jury’s about him could have on the delibera- ensure that a mandatory procedure to forth a Supreme tions. Court has often not- As intelligently understood ed, requires the Constitution individualized but, ques- as with other right, this waived sentencing,65 mitigating evidence is an waiver, the nature of our focus is on tions of ensuring right. important factor in than understanding rather the defendant’s why requires stringent pro- such Wallace presented. it is reiter- the form in which We may waive his cedures before a defendant mandatory. hearing is ate that a Wallace mitigation. We However, record, if, apparent a from the it is murky record (a) need decide whether this be- understands the difference would, alone, (b) standing require reversal since death, understands tween life errors, in combination with other it necessi- importance mitigating appreciates the vital (c) resentencing tates reversal and remand proceedings, and vol- capital in charge. capital murder intelligently waives untarily and all evidence, then failure to mitigating argues Proposition Fitzgerald IX In hearing may harmless. be hold a Wallace the trial court instruction relieved proof precluded State of the burden of ¶41 support does not The record mitigating evidence in viola- consideration of apparent in this case. It is a conclusion such Fitzgerald provisions. tion of constitutional the choice between life Fitzgerald understood complains of instructions in first' and two However, while the record shows and death. stage, concerning wheth- respectively, second aware he could call witnesses Fitzgerald was alcohol at er he was under the influence of it not clear that mitigation, in is stage In first the time of the crimes. importance of mit purpose understood voluntary intoxi- trial court instructed that rested, standby he igating evidence. After person’s actions less cation did not render confirming that Fitz made a record counsel stage the trial court criminal. In second present mitigating evi gerald chose not mitigation Fitzger- that refused to instruct in him the trial court denied dence because At ald was under the influence of alcohol. might have effec to retain who funds trial, robbery victims testi- surviving the two physical of his tively presented evidence drunk; (see to be appear did not jury fied to the psychological disabilities II). Fitzgerald might have been intoxi- one said Fitzgerald’s mother was know what he was testify appeared a miti- cated but available to as the courtroom- See, Lockett, Fulminante, 279, 309-10, e.g., S.Ct. at 438 U.S. at Arizona 113 L.Ed.2d 302 Transcript 64. Trial at 1183. he the influence of alco- Family and friends tion that was under

doing. State, variously testifying for the night, Although that at hol the time of the crimes. intoxicated, was not said he had one beer and Capital Felony Report trial court found in its drunk, drunk, obviously slightly was that there was evidence was un- Fitzgerald’s statements pretty In drunk.66 der the at the time of the influence trial, he said he had police, admitted offense, it refused to include this as a miti- night, drinking tequila and beer all was been gating circumstance. claims this , intoxicated, not remember a lot of very did omission, coupled with the instruction above crimes, and had not intend- details about the (which incorporated was into the second ed to hurt Russell. jury stage proceedings), prevented the from considering any evidence of intoxication as Fitzgerald requested an in mitigating argument per- evidence. voluntary intoxication in the struction on first State,71 suasive. Ledbetter we were stage request after the trial but withdrew “puzzled” where a trial court listed a similar experts.67 funds for court denied him Volun capital felony report factor in its tary complete but refused intoxication is not a defense to it in mitigating be include the list of circum- malice murder but considered determining jury. whether a defendant had the stances submitted We held during errors, kill intent to commission in combination with other this re- crime.68 Sufficient evidence must be intro quired reversal. The State does not discuss was duced to a defendant so intoxicated show simply argues Ledbetter and incorpo- overcome and powers his mental he was ration of the first instructions could not criminal intent.69 unable to form Where discouraged any juror have considering from insufficient evidence trial court finds has mitigating all relevant circumstances. The voluntary support a been introduced to intox argues State both that evidence of intoxi- defense, ication it is within the court’s discre jury cation was irrelevant and that the reject tion to either an instruction on volun precluded considering mitiga- from it in tary jury intoxication or instruct logic argu- tion. We fail to see the in this voluntary is not a defense.70 intoxication whether, ment. The issue is under these Here, Fitzgerald withdrew his instructions, jury could think evidence of voluntary intoxication The instruction. mitigating. intoxication would be prose- requested State an instruction that intoxi argued cutor stage, the first and the crime, cation was not a defense to instructed, that intoxication was not a agreed stating the trial court it felt this defense to the crime. ap- This instruction proper given the was evidence of instruction plied stage, to the second and no instruction presented. light In intoxication of the con suggested might intoxication be used in miti- regarding flicting Fitz gation. The trial agreed that evidence gerald’s level of intoxication and the amount presented. of intoxication was ap- There of detail he in each recalled statement to pears deny Fitzgerald’s to be no reason to police, clearly this decision was not an abuse request sparse that it be included in his list of discretion. mitigating of circumstances. As in Led bet- ter, stage Fitzgerald 44 In the second we need not decide whether this error requested jury the mitiga- be instructed in require alone would since reversal in combi- 68.Edwards, 1051; Jones, supported Fitzgerald's 66. None of these accounts 655 P.2d 648 P.2d at claim that he went to several bars with a female 1255. committing friend before the crimes. Jackson, 964 P.2d at 892. Fitzgerald argued tirelessly at trial and on appeal expert testimony necessary that was to explain why drinking night, his that combined Crawford 627, 638. possible with his diabetes and residual brain head, damage gunshot from the wound to his impair judgment prevent would so his as to him OK CR 5, 71. 1997 898-99. forming necessary from the intent to kill for malice murder. errors, regarding procedure re- the ex- request it necessitates for of other nation with resentencing pert I do for witnesses.1 the mere and remand believe versal noting provisions of the charge. O.S.Supp.1992, of 19 capital murder 138.8, § to problems sufficient address the Fitzger In XVII analysis. I see with the the error in this case argues cumulative ald appreciate ap- 2 To and the understand was, itself, arbitrary an that of factor in and reference, plication statutory of this a review separate reversal. There are five requires statute, history the together of with They sentencing stage. serious errors repeal O.S.Supp. revisions and ultimate of 22 as in as well include errors selection 1985, 464, § must be made. From statehood evidentiary of a factor errors the refusal 22 had until Title contained a Section these, Any standing mitigation. one of in 1985, that Up particular until section alone, need might require reversal. We prior related to the to counsel whether errors are individu not decide these arraignment provided compensation for they because in ally reversible combination However, in of counsel. Section 464 Fitzgerald a fair reliable sentenc denied problem. to address was amended the Ake2 was well conduct ing proceeding. trial amendment, In created Legislature ed, fairly prosecutor behaved procedure charged for an with a individual However, in second propriety. with penalty crime where the death could be im- proa se defendant unable to life- posed apply for an witness. That jury, qualify was denied to assist required the to rule amendment trial court evidence, mitigating of chose presentation by of on the reasonableness guid such not to evidence without defendant for other witnesses and court, inquiry from the trial ance provided payment services. It also of opportunity rebut evidence of denied compensation out of the witnesses circumstance, was denied aggravating an judicial state fund in a not to exceed sum to list a of the crime the chance circumstance defendant, per specific $750.00 mitigation. We unable find by judge, amount to be determined the trial beyond individually these errors harmless subject approval Chief Justice. re reasonable doubt. Their combination addition, provided amendment quires As reversal.72 we must reverse expenses per in excess $750.00 issues, these we do not address the remain compensated upon application and could be propositions error.73 Justice, according approval of the Chief by promulgated Supreme Court. STRUBHAR, V.P.J., LANE, J., rules Additionally, it JOHNSON, J., application stated that no Concur. compensation and other witnesses LUMPKIN, J., Concurs Results. heard trial court services would be prior disposition. to the final trial This stat- LUMPKIN, Judge, concurs in results: § repealed c. ute was Laws ¶ disagree in 1 I do not with the result 1,1991. July eff. opinion which the conviction but affirms ¶ However, the resentencing. repealer for I do was at the end of remands That Act the disagree analysis applied Indigent. with the that is Defense created which. merely argues response expressed The State in to this I remain committed to in 1. the view State, 959, (Okl.Cr.1995) proposition that there can be no cumulative er- Rogers P.2d argument error results) ror where no occurred. This (Lumpkin, in Hawkins v. J. Concur ignores repeated suggestion the State’s own that 586, (Okl.Cr.1995) 599-600 many propositions error in of these was harm- regarding (Lumpkin, specially concurring) P.J. less. scope in applicability of Ake the current procedure. criminal Oklahoma Fitzgerald’s Application Evidentiary Hear- for Request Supplement to the Record And/Or Oklahoma, 2. Ake v. U.S. Appeal, September filed is Direct 84 L.Ed.2d DENIED. System. Indigent appear, Defense Prior repealer Oklahoma the at the end of the 1991 time, Act, repealed there had been an Oklahoma which that Section vacated the System only statutory provided authorization/procedure Public Defender which for basis, appointment the compensation limited services on a statewide expert of attorneys logical reading witnesses. A appointments sequence almost all of for indi- of by events in these Session Laws is that the gent defense at the trial level were made repealer, provide which did not for attorneys being the vehicle the District Courts with pay expert Oklahoma and Tulsa counties compensated through the court fund. This they witnesses since part body formulating Act of created a new law Indigent System, Defense was overlooked organization Indigent the of Oklahoma the subsequently op- corrected at the first (O.I.D.S.), System Defense its Board and portunity in the 1992session. part pro- Executive Director. A of that Act vided the Executive Director of O.I.D.S. previous 5 In the provisions of Section payment expert would of determine witness Legislature specifically delegated the hourly services “at a reasonable rate”. Ex- trial court responsibility the the to make ceptions were made for those counties above relating decisions witnesses and 200,000 according population, to the federal Likewise, compensation. their in the 1992 decennial succeeding census 1960 or provision, Legislature specifically said repealer federal decennial census. The by those witnesses shall paid be this Act included Title 22. Section Then pursuant procedures Court fund estab- expanded the Act was amended3 and by governing lished board of the Court the duties of the Executive Director and the Legislature fund. The did not include the Indigent Defense Board. This amendment process. District Court in that It seems the requirement payment included the for the logical interpretation, as we look by witnesses authorized as Execu- 1991-92 revamping Indigent session laws subject approval tive Director to be to the Toles, System, Defense is as we said in the Board. Legislature made a conscious decision that Indigent System Defense going to be opinion theAs notes in footnote responsible expenses. for its own 187-88, we held Toles v. 947 P.2d at applies at 187. That to Oklahoma and Tulsa there was no Ake violation where the Execu through counties provisions likewise approve attorney's tive Director failed to an Section 138.8 of Title 19.4 pharmacologist for a to investigate voluntary develop intoxication defense. 6 A reading statutory of these amend- law, provision part That was a of the new ments reveals that now the Court fund board which was added in the 1991Act. In the 1992 budget sets a for the Public Defender in Act, Legislature in Section added Oklahoma and Tulsa counties. The Chief states, Section 138.8 of Title which “in Public Defender is responsible then for man- subject provisions counties aging of Section budget remaining within the Statutes, 138.1 of Title 19 of the Oklahoma budgetary authorizations. The Chief Public compensation indigent witness de Defender in Tulsa and Oklahoma counties by paid fense shall be pursu just Court fund acts as the Executive Director of procedures ant to govern established O.I.D.S. acts. The Chief Public Defender ing board of the Court fund.” It requests, would receives makes a determination of 27,May § indigent Laws c. eff. represented defendants county indigent or the Oklahoma defender interpretation 4. This is consistent with the limita- Indigent System, requested; if Defense expenditure tions on the of set funds forth in 20 added). (emphasis ... 1304(B)(19). O.S.Supp.1997, § That section language means that when the defendant is provides pertinent part: in represented by OIDS or or Tulsa Oklahoma "expenses” B. The term shall include the fol- Defender, County experts Public claims for wit- lowing and none others: go through nesses must those entities and are not payable from the court fund. compensation expert, 19. Reasonable for in- vestigative by or other services authorized the to remand appropriate would be either 8 It of the appropriateness Coun to the District Court of Tulsa this case request the for denies authorizes or ty Evidentiary Hearing for a authorized, have an the is If an witnesses. proce made to the record to be determine then amount sets an Chief Defender Public County being in and if dure utilized Tulsa is this expended. It is clear which be County complied this statuto Tulsa has with gleaned legislative intent which can be the ry County has not com provision. If Tulsa history evolution a of this of the from review plied statutory then this provision, the Systems. with Public of and the Defender O.I.D.S. evidentiary upon have an base Court would case, initially Appellant this findings enter directives which to make and. indigent counsel from to be determined resentencing. as of our for part remand County Public Office the Defender’s Tulsa to this give serious consideration We should the represent him. appointed When application specific the regarding the of issue Appellant’s request granted trial court statutory in this case rather than revisions himself, County Public represent the Tulsa belief of general statements of our what the as directed to serve Defender’s Office was set out in should be under Ake. As we done Appellant then filed stand-by counsel. (Okl.Cr. 346-47 Banks witness a state funded 1998), issue is not if oür decision on an proceeding rather with trial court than the Constitution, the then violation of federal in under 138.8. Under the record Section wrong right, is or regardless of whether it ease, appear the District it does different, it it another Court would have done County the complied Court Tulsa of The same is applied. should be followed 138.8 Title 19. Un- provisions of Section of legislative applying role true as to our in framework, statutory judge der current the Regardless of whether we enactments. com- authorizing is to be involved different,'if Legisla done it might have con- pensating expert witnesses within provided has constitutional vehicle for ture That text of in this case. the facts addressing the issue of authorization and governing budget by established is to be witnesses, we funding then are Public De- board Court fund for the required apply procedure. Granted, fund that Court fender’s office. Judge, As- of a board consist District would Judge Court

sociate District and District O.S.1991, County

Clerk as set out in 20 repeal § its Section 464 1302. But APP 194 1998 OK CIV Legislature changed the Title has TRAILER MANUFACTURING SOONER change proce- of this procedure. Because CO., Plaintiff/Appellee, Legislature, dure the anal- established ysis Fitzgerald, relating set forth longer applicable judge, trial no within is GAY, Defendant/Appellant. Larry R. the Dis- State time of Oklahoma. 89,832. become trict should involved No. Court it the Public funding, issue as relates to Defender, if the Public Defender believes is Oklahoma, Appeals of Court of Civil to ful- provided funds have been

insufficient Division No. 3. statutory and constitutional fill his or her could be in the District role. An action filed Aug. providing of those Court to mandamus 15, 1998. Rehearing Dec. Denied However,’ sufficiency funds. other than the budget, the individual decisions overall 15, 1998. Certiorari Denied Dec. expenditure of those funds relating to in Okla- the Public Defender same for for the homa counties as it is and Tulsa of O.I.D.S.

Executive Director

Case Details

Case Name: Fitzgerald v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Dec 10, 1998

Citation: 972 P.2d 1157

Docket Number: F-96-1200

Court Abbreviation: Okla. Crim. App.