Fowler v. StateFowler v. State
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OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF
CHAPEL, Judge.Mаrk Andrew Fowler appeals from an order of the District Court of Oklahoma County denying his application for post-conviction relief in Case No. CRF-85-3343. Fowler was convicted by jury on May 16, 1986, of three counts of Murder in the First Degrеe while in the commission of Robbery With a Dangerous Weapon, felony-murder, 21 O.S. 1981
Fowler and co-defendant Billy Ray Fox were convicted of the July 3,1985, murder of three Wynn’s IGA grocery store employees during a robbery in which approximately $2700 was taken. Fowler and Fox made separate statements to police confessing to participation in the robbery, but denying committing or participating in the murders. Fox admitted to his roommate Chris Glazner that he had killed three people and that Fowler had stabbed one. Neither defendant testified at trial. Glazner’s testimony was edited to remove all references to any party other than Fox; a policе officer’s testimony on Fowler’s statement was redacted to discuss only Fowler’s admissions regarding presence in the store and participation in the robbery.
This Court affirmed Fowler’s Judgment and Sentences on August 30, 1989, in Fowler v. State, 779 P.2d 580 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990). Fowler’s motion for rehearing was denied on October 2, 1989. Between May 25,1990, and July 12,1993, Fowler filed his Application for Post-Conviction Relief, along with several amended and supplemental applications. On April 7, 1992, this Court denied Fowler’s Motiоn to Recall Mandate based on the issue of severance for mutually antagonistic defenses. Proceedings were held in abeyance from November 2,
In Fowler’s appeal now before us, he raises twelve propositions of error. After thorough review of each claim of error, we find that his second proposition is the only proposition not barred by res judicata or waived. In that proposition, Fowler does not directly аttack his conviction or sentence, but claims he was denied due process because he did not receive a full and fair appellate review of his judgment and sentence by a competent tribunal. We rеject the collateral attack on Fowler,1 find the proposition to be without merit and affirm the district court’s denial of post-conviction relief.2
Initially, we note the Post-Conviction Procedure Act,
The oрinion in this case as filed with the Clerk, with the individual judges’ votes shown thereon, is the official pronouncement of this Court. Our rules permit and we encourage litigants to seek rehearing when an opinion overlooks a decisivе question or authority. Rule 3.14, 22 O.S.1981, Ch. 18, App. Fowler presents absolutely no authority3 which would require or permit this Court
Fowler also requests an evidentiary hearing on Proposition II. Neither the U.S. nor the Oklahoma Constitution affords Fowler a right to an evidentiary hearing, 22 O.S. 1981
Propositions I, III, IV, VTB, VII (in part), and XI7 were raised on direct appeal and are therefore barred by res judicata. Walker v. State, 826 P.2d 1002 (Okl.Cr.1992), cert. denied, — U.S. —, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992); Banks v. State, 810 P.2d 1286 (Okl.Cr.1991), cert. denied, — U.S. —, 112 S.Ct. 883, 116 L.Ed.2d 787 (1992).
Propositions V, VIA, VII (in part), VIII, IX, X, and XII could have been raised
We have carefully examined Fowler’s entire record before us on appeal, including the application and the District Court’s findings of fact and conclusions of law, and find that he is not entitled to relief. The order of the District Court denying post-conviction relief should be, and is hereby AFFIRMED, and Fowler’s second proposition of error is DENIED.
LUMPKIN, P.J., JOHNSON, V.P.J., and LANE and STRUBHAR, JJ., concur.
Notes
. Fowler also attacks Fox v. State, 779 P.2d 562 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990), which discusses legal issues raised by both defendants.
. Notwithstanding our decision to deny Fowler‘s second proposition, we have conducted a thorough, complеte review of the Fowler and Fox issues on severance and peremptory challenges. Under Oklahoma law, mutually antagonistic defenses exist and require severance where each defendant attempts to exculрate himself and inculpate his co-defendant. Perry v. State, 853 P.2d 198 (Okl.Cr.1993); Neill v. State, 827 P.2d 884 (Okl.Cr.1992); Woodruff v. State, 825 P.2d 273 (Okl.Cr.1992); Romano v. State, 827 P.2d 1335 (Okl.Cr.1992) (companion case to Woodruff); Lafevers v. State, 819 P.2d 1362 (Okl.Cr.1991); Cannon v. State, 827 P.2d 1339 (Okl.Cr.1992) (companion case to Lafevers); Vowell v. State, 728 P.2d 854 (Okl.Cr.1986); VanWoundenberg v. State, 720 P.2d 328 (Okl.Cr.1986), cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986); Master v. State, 702 P.2d 375 (Okl.Cr.1985); Murray v. State, 528 P.2d 739 (Okl.Cr.1974). The issue is neither whether defendants disagree about facts nor whether one defendant claims the other should bear greater responsibility. Conflicting defenses or cases in which both defendants admit to presence and some participation in the crimes do not require severance; Lafevers, supra, 819 P.2d at 1366, specifically distinguishes its holding from felony-murder cases which have no element of intent or mаlice. But cf. Zafiro v. U.S., - U.S. -, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (under federal rules, mutually antagonistic defenses do not require severance absent a serious risk that defendant’s specific trial right is compromised or that the jury would be prevented from making a reliable judgment as to guilt or innocence).
Peremptory challenges are not constitutionally guaranteed and are subject to limitation in their exercise, Stilson v. U.S., 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154 (1919); see also Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Title
.In support of his collateral attack, Fowler cites Oklahoma cases on juror incompetence which affirm the principle that a defendant has a right to an impartial and competent jury. Most of thеse cases involve juror intoxication or illness. The general dispositive question in these cases is whether a juror is incapacitated or unable to perform his or her duty and whether the alleged incompetence prejudiced the defendant, e.g. Laudermilk v. State, 494 P.2d 341 (Okl.Cr.1972). Fowler also asserts a right to an impartial and competent tribunal under Tanner v. U.S., 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). Although unpersuasive, Fowler contends that judges as well as jurors can be challenged for unsound mind. In fact, the jury сases could support an argument that such a challenge is beyond the permissible range of inquiry. Jury competence caselaw has allowed inquiry into ‘‘external” influences on the jury, but prohibits admission of juror testimony whеre the question is “internal”; juror mental incompetence is considered an internal influence and an impermissible subject for inquiry. Tanner, 483 U.S. at 117-120, 107 S.Ct. at 2745-48.
Additionally, Fowler maintains that judicial incompetence issues should receive the same analysis and treatment as questions of judicial bias or prejudice as discussed in Aetna Life Ins. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). In Aetna, an Alabama Supreme Court justice authored a 5-4 opinion allowing a $3.5 million punitive damage award for a bad-faith refusal-to-pay claim against an insurer. At the same time, the justice was plaintiff in a class action against an insurer and had a separate suit pending against an insurer, both grounded on bad-faith refusal-to-pay claims. After the Alabama cоurt issued the opinion, the class action suit settled and the justice received $30,000. The Supreme Court vacated the judgment, said the justice “acted as a judge in his own case” and should have been disqualified. Aetna, supra, 475 U.S. at 822, 106 S.Ct. at 1586. The Supreme Court held that the justice‘s opinion clearly and immediately advanced his own legal status, he knowingly held a pecuniary interest in the outcome, he possessed a leading role in the decision, his opinion did not merely аpply well-established law, and that earlier decisions did not compel its conclusion. Aetna considers only bias and prejudice and is clearly distinguishable from Fowler’s claims. While Fowler points to the discussion of the justice’s leading role and the dangers which arise when a biased judge has the opportunity to influence a court, he fails to explain why Aetna‘s holding on actual judicial interest should apply to allegations of judicial incompetency, where no bias, prejudice, or interest exists. Aetna does not address this issue explicitly, by implication, or by analogy. Fowler offers no other authority which suggests this Court should consider his second proposition or error.
. Assеrtions of judicial incompetence are distinguishable from instances of judicial bias or prejudice. In Oklahoma, a judicial officer may be removed from office for acts enumerated in the Constitution and statutes of the state of Oklahoma, Oklahoma Constitution Art. VII-A § 1(b),
. See Footnote 2 above.
. Fowler was handed down on August 30, 1989. On April 7, 1990, a differently constituted Court denied Fowler‘s Motion to Recall Mandates, which raised the issue of severance and mutually antagonistic defenses. This Court found by order that Fowler and Fox did not have mutually antagonistic defenses. In effect, Fowler had two full and fair appellate reviews of thesе issues prior to this appeal. Our review in connection with this matter (as set forth in footnote 2) constitutes a third examination of these issues. We do not intend to review these issues again.
. Fowler acknowledges that this proposition is barred by res judicata, but argues that recent Supreme Court cases require this court to review the issue. The cases cited concern jury instructions and aggravating circumstances and do not support Fowler’s argument. Stringer v. Black, — U.S. —, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Sochor v. Florida, — U.S. —, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992).