*1 FREDERICK, Appellant, Earl A. Oklahoma, Appellee.
STATE of
No. F-92-1111. Appeals
Court of Criminal of Oklahoma.
Aug. Richard,
Bert City, appellant Oklahoma for at trial. Palmer,
Sandra Stensaas and Susan Okla- City, homa for the State at trial. Sutton, Wendell B. Assistant Public De- fender, City, appellant Oklahoma for ap- peal. Loving, Attorney
Susan Brimer General of Humes, Oklahoma and William L. Assistant General, Attorney City, appel- appeal. lee on *2 outside, getting was dark When it entered. OPINION and went Hollingshad left Smith’s house STRUBHAR, Judge: his father’s house. Later across the street to Frederick, charged Appellant, Earl evening, Hollingshad someone walk that saw Murder, of 21 in violation Degree First with truck and start it. He did not out to Beck’s 701.7, of O.S.1991, § in District Court the Beck person was Beck because believe County, Case No. CF-90-734. limp person with a noticeable and this walked alleging Bill Particulars filed a of The State the person not. The then went back into did that the circumstances: aggravating two pickup away. house. Later the was driven purpose the committed for murder was very Hollingshad testified that Beck was prosecution, and that avoiding arrest or rarely anyone proud of his truck and he let continuing threat to so- pellant constituted it. use guilty ciety. jury Appellant found aggravating charged and found one crime Beck’s, Weese, a friend of first no- Jack exist, continuing that of circumstance on house with Beck ticed “Jeff’ Smith’s society. Appellant was sentenced threat 7,1989. days A few after Novem- November judgment and sentence From this to death. 11, 1989, back to Smith’s ber Weese went appeal to this Court. perfected his he has that no one was there and house. He noticed pickup not around. He went into Beck’s 1989, Bradford Beck During November of and that one bedroom the house observed Smith, cousin, in home of his Terri lived the disarray. in Human blood was found Oklahoma, was out Spencer, in while Smith the floor furnace. early visiting mother. As state her 7, 1989, that a witnesses testified November po- subsequently discovered staying began with man known as “Jeff’ into a motel had checked lice house.1 On November Beck Smith’s 11, 1989, Texas, Dumas, on November to see her food called Beck Smith Larry Davis. He had the name of under During telephone stamps had arrived. driving pickup at this time. Beck’s told, by Beck heard music and was call she 16,1989, pickup later iden- November On having a they partying and nice found in belonging to Beck was tified as that “Jeffery” one told her that time. Beck Texline, pick- There was blood Texas. again people called Beck there. Smith seat, ignition. up driver’s door on the 11,1989. morning Beck of November on the belonging to Beck and Smith items Several during this conversation Smith told cane, pickup. Beck’s in the were found “Jeffery” going to and was take was mad dis- glove were found short glasses and to call Smith tried him back to Shawnee. Thompson’s away, tance Grove. after but no several times November Beck telephone. became She one answered p.m. November approximately 11:40 At unlike Beck to because it was concerned Amarillo, Oakley Patrolman significant periods of time without leave car Department observed a Police Texas going. anyone know where he was letting from a matching description one stolen Texline, Texas.2 person found murdered good friends with Bobby Hollingshad was stopped the vehi- Oakley another officer stayed that Beck had During the time Beck. by a woman and house, occupied cle which Hollingshad had seen “Jeff’ in Smith’s police The woman told young child. times. On with Beck several at the house car from a had borrowed the officers that she Hollingshad saw Beck November in a bar she had met marijuana man R.J. whom smoking drinking named and “Jeff’ gave The woman couple nights earlier. argu- heard them house. He had at Smith’s man and told description of the they police a approached the house but ing when he Unique found at the that he could be them on the door stopped when he knocked regarding the murder of trial, 2. The information identified several witnesses 1. At in camera but was disclosed stolen car's owner person to them as "Jeff." as the known stage jury the first to the not revealed proceedings. Dalhart, proceeded Unique Club. The officers to the Texas. had checked into they Appellant, club where arrested who this motel under name of R.J. Collier. description given by matched the the woman p.m. At about day, 6:00 on that same No- in the car. identified himself to jail vember Bell returned to the *3 police as Earl Alexander Frederick. The having after Appellant advised that ear that driving woman had been was speak again. wanted to with him At this police secured and searched. Inside it the time, Appellant told Bell that his name was pair found a belonging coveralls to Brad- Larry speak Davis and quickly he needed to ford Beck. very because “Jeff” didn’t let him long. out custody immediately was, While after his ar- Bell asked “Larry” who “Jeff” and re- rest, Appellant jail sponded, was booked into Earl, and ad- “Jeff is the one that controls rights. vised of his Miranda3 Larry He was then R.J. and things and makes them do by questioned Oakley they Officer about the car “Larry” don’t want to do.” ad- Oakley which had led to his arrest. discover- vised Bell that Earl had lied to him earlier Appellant ed that was checked into a motel and that “Jeff” had killed Beck and had Appellant gave room in police Amarillo. dumped body open field near Spencer, consent to search this motel room interview, which he During Oklahoma. this was Larry checked into under the “Larry” name crying. point, had been At one police Davis. this motel room quit crying, found sat a minute and kind of shook. belonging numerous items to Beck and He looked down at the floor and then looked Smith. said, at Bell and the and Sheriff “who are you?”5 responded by Bell asking who he 20, 1989, At about 3:00 a.m. on November was, replied and he that his name was “R.J. Appellant was rights advised of his under Forrester.”6 Then “R.J.” asked where he Miranda questioned by Criminal Inves- was and Bell told him. Bell walked him back tigator interview, Tim During Bell. Ap- they to his cell and as walking, were “R.J.” pellant told Bell he and Beck had stopped, said, “you’re looked at Bell and planned go to New Mexico where Beck was, Tim.” responded Bell that he going to visit his in Albuquerque sister said, Jeff, “R.J.” then “I’m I’ve heard about Appellant going to make contact you.”7 This was the end of the conversation. left, with an they ex-wife. before changed Beck 15, 1990, his mind and told January On partially Beck’s de- pickup take the composed body leave without him. in a found field some pellant said that Beck him told that he buddings deserted far Smith’s .from going to drop hitchhike to Old Mexico and off house. The medical examiner testified that the face of the earth. he listed the cause of death as undeter- mined —head trauma. He classified the following day, November manner of death as homicide because he did approximately p.m., 4:30 Bell interviewed injuries not believe that the skull Appellant again. again apprised Appel- Bell caused a fall or other accidental event. lant of his Miranda rights questioning before occasion, Appellant him. On this charged identified with Beck’s murder Frederick, himself as Earl Alexander Sr. and the ease was first set for trial on June He told Bell he had driven pursuant Beck’s truck request but to the of both City from Oklahoma to Dumas where parties, he had was continued until November spent night in a motel. Scheduling had 1991. A Order entered on No- cheeked into this motel under the name of vember reflects that the trial date Larry Davis. also again told Bell that was agreement continued of both night stayed another he had parties January motel in until January 1992. In Arizona, III, 3. Miranda v. Transcript 6. Trial 37. III, Transcript 7. Trial 37. III, Transcript
4. Trial 33. III, Transcript
5. Trial experts not aware of such application he was counsel filed an upon and defense area. Based stating therein proceedings stay for a expressed for additional time counsel’s need sought from had earlier that the defendant expert in competent to secure a the area expert in forensic finding that an the court MPD, until continued the trial necessary. psychiatry/psychology 5, 1992.10 October that the court application in this was noted expert to be neces- such an had determined The record reflects no further mention because the Indi- sary to the defendant but compe- to secure a defense counsel’s adequate System was- without gent Defense 25,1992, September witness until tent time, expert could not be at that funds camera, argued, in when defense counsel immediately Accordingly, defense procured. supplemental motion for continuance. The stayed requested be until counsel the ease motion advised the trial court that defense *4 available to hire the funds became sufficient retained the services of Dr. Ben- counsel had January necessary expert. On Braun, expert in nett G. a renowned the field applica- granted defense counsel’s However, trial court Personality Multiple Disorder. April the trial until tion and continued pre-existing professional commit- due to a test, examine, ment, Dr. Braun was unable to part of and evaluate until the latter 2,1992, court conducted an ex April On The motion also noted that November 1992. hearing counsel concern- parte with defense necessary granted the additional time for competency Appellant.8 ing the mental Appellant, Dr. Braun Dr. Braun to examine hearing at this that defense was established complete process prepared could and be money advised that counsel had been opinion days. within three The to render accordingly, and had available for judge stat- denied the motion for continuance Philip psychologist, a clinical Dr. Mur- hired ing off several times had Murphy tes- phy, Appellant. to examine Dr. delay and he did not feel that he could spent three hearing at the that he had tified longer. order issued the trial court The interviewing testing Appellant.9 hours denying gave motion no further basis for analyzing the interview and test re- After this decision. sults, possibil- was a Murphy concluded there ity Multiple Person- Appellant suffered Appellant argues proposi in his first (MPD). not- ality Murphy Dr. also Disorder his motion tion that the trial court’s denial of test indicators did not show ed the September con continuance on for responses. to fake his bed or tried discretion as it forced stituted an abuse of Murphy that while the facts Dr. testified the benefit of his due him to trial without MPD, it was a rare disorder pointed toward competent process right to evaluation twenty-two only once in that he had seen provided by Ake v. Okla psychiatrist as is experience, accordingly, years homa, of clinical psy- require extended evaluation Accordingly,
would
he contends
accurately diagnose.
Murphy
Dr.
attorney
chiatrist to
from effec
ruling prevented his
said
him,
deny
such evaluation would
tively representing
advised the court that
thus
expert in the
counters
for
who was an
his
to counsel. The State
call
someone
did not
multiple experiences
by asserting
with this
the trial court
area and had
denying
motion for
specifically stated
particular disorder. He
abuse its discretion
position that
It is the State’s
expert.
He further
continuance.
that he was not such
disorder,
a eontinu-
counsel was not entitled to
rarity of the
that due to the
noted
Murphy
pursu-
hearing April
9. Dr.
administered
was held
8.The
Personality Inventory
Oklahoma,
Multi-Phase
Minnesota
ant to Ake v.
—2
(MMPI-2)
Test.
Test
and Rorschach
Further,
keeping
majority
Ake v.
with
intention
by agreement of the
order set forth that
10. This
Court,
evidentiary
any speedy
parties,
would toll
the continuance
McGregor
parte.
appropriately
ex
See
held
period
Appellant's
the stated
trial claims
State,
(Okl.Cr.1987).
ing
qualified psychiatric expert,
he should
al
in
setting
particular
errors which
the
have advised the trial court
attempts
of his
unimportant
case are so
insignificant
do
inso
manner
of his difficul-
they may,
consistent with the Federal
achieving
goal.
in
ties
This would have Constitution,
harmless,
be deemed
not re
reflected on the record defense counsel’s dili- quiring the automatic reversal of the convic
gence in this endeavor.
However,
tion.”
there are some constitution
al errors to which a
analysis
harmless error
hand,
On the other
if as
argues,
the State
instance,
applied.
cannot be
For
the Su
diligently
defense counsel did not act
in his
preme
inappropriate
Court found it
to em
attempt
expert,
prosecutor
to secure his
ploy
analysis
a harmless error
could and
where a crimi
should have made an
nal defendant
diligence
completely deprived
this want of
on the record at
of the
trial,11
on the motion for
Sixth Amendment
continuance.
to counsel at
Alleging that defense counsel was not enti-
and also where a criminal defendant was
Wainwright,
11. Gideon v.
372 U.S.
83 S.Ct.
which
be
tactics,
attorney’s options,
and decisions in
*6
exemplify
analysis are those which
“structur
virtually impos-
plea negotiations would be
in
of the trial
al defects
the constitution
Thus,
inquiry
into a claim of
sible.
309, 111
Id. 499 U.S. at
S.Ct.
mechanism.”
require,
here would
unlike
harmless error
1265,
at
The Court
at
331.
cases, unguided speculation.
most
of
reasoned that errors such as absence
1182,
490-91,
Id. 435 U.S. at
at
55
98 S.Ct.
im
for a criminal defendant and an
counsel
at 438.
L.Ed.2d
partial judge affect the entire conduct of a
beginning
the end. “Each
trial from the
presented in
to the situation
contrast
deprivations
constitutional
is a simi
of these
Holloway, one can look to that at issue
in
affecting
structural defect
the framework
lar
Texas,
249,
Satterwhite v.
486
108 S.Ct.
U.S.
proceeds,
within
the trial
rather than
which
(1988),
capital
where a
L.Ed.2d 284
process
in
itself.”
simply an error
counsel be
defendant’s
to consult with
1265,
310,
113
Id. 499 U.S.
at
111 S.Ct. at
submitting
psychiatric
examination
fore
at 331.
L.Ed.2d
testimony
psychiatric
ob
was violated and
was intro
pursuant
tained
to this evaluation
in
reasoning can be found
the earli
Similar
sentencing stage of trial.14
Arkansas,
duced
Holloway v.
435 U.S.
er case of
analy
determining
a harmless error
1173,
(1978),
475,
Clearly, the constitutional error which oc- directed verdict and the to chal- simply curred in this case did not involve an lenge appeal, overruling of the demur evidence, portion individual the effect of guidance [sic]. There is no from the Court may quantitatively which be assessed *7 Appeals concerning par- Criminal that Rather, involving Appel- Court. this error legal stage proceed- ticular issue in a two defense, only potential lant’s affected the en- ing. We’ve researched that and now beginning tire conduct of the trial from the to I existing put believe under if I case law on the end. The nature of this error involved discovered, any objection witnesses I have that evidence which waived the was not your opposed to concerning overrule on our demur and I [sic] situations evidence wrongfully I partic- believe that cannot do that in this simply introduced. This Court So, can not look to the record ular case. I and make an want to advise the Court intelligent judgment my putting about whether that in the record that the evi- on may through dence which have been evidence discovered would witnesses the second stage have affected the outcome of the trial. litigation strategy. To do is not a trial I compound potential injury, opined 15. To the for the of this witness who that did not concerning Appellant's MPD, rather, State offered evidence malingering. suffer from but mental state at the time of the commission of the prosecution the was allowed to the use through psychiatrist crime an unendorsed testimony of this unendorsed to rebut a Appellant. Although Texas who had examined by Appellant defense not raised because the given a short continuance pellant provided psychiatric had not been ex- prepare testimony which to ness, for the of this wit- pert. knowledge The State did this with full without the benefit of his own evaluation the defense could not counter with testi- competent psychiatric expert, Appellant mony of its own. virtually unequipped testimony left to rebut the
1099
ruling
stage
compelled
I am bound and
under
court’s adverse
the first
de-
believe
if I wish to
murrer. Defense counsel could have also
law to do that
reasonably
gone
the demur
believed that if he had
for-
[sic]
serve the eiTor on
coupled with
reasons ward with his case at
that’s the reason
the close
the State’s
unavailability
previously
stage,
case
second
he would have waived
we’ve
stated
challenge
Brawn
and so forth and so his
the trial court’s adverse
[sic]
of Doctor
strategy
ruling
stage
is not a trial
maneuver
to the second
demurrer. How-
on. This
ever,
compelled
I fell
under the law
whether defense counsel could have
but rather
reasonably
protect my
gone
that this what we must do to
believed that if he had
for-
rights.16
ward with his case at the close of the
client
State’s
stage,
case
second
he would have waived
Appellant’s
appeal
It is
contention on
challenge
the trial court’s adverse
for his
defense counsel’s'rationale
decision
ruling
stage
to the first
demurrer is not as
put
any
stand on his demurrer and
because,
parties point
clear. This is
as both
stage
second
of trial reveals
evidence
out,
directly upon
this Court has not ruled
operating
under a mistaken as-
he
hold, however,
this issue. We now
that the
sumption of the law which caused his conduct
stage
waiver of a
in the
demurrer
second
to fall outside the bounds of ‘reasonable as-
stage
does not waive demurrer to the first
required
sistance’ as is
v.
Strickland
is,
stage
capital
because the second
case
Washington, 466
104
80
definition,
See,
separate proceeding.
(1984). Accordingly, Appellant
701.10(A).
O.S.1991, §
argues
denied effective assistance
counsel.
light
Proposi-
of the error discussed in
I,
judgment
tion
and sentence of the trial
Appellant’s argument
upon
is based
court
REMANDED
is REVERSED and
premise
incorrectly
that defense counsel
be-
TRIAL.
NEW
lieved that to
evidence in second
stage would waive both his first and second
LANE, J., concurs.
stage
long
demurrers. This Court has
held
goes
that when a defendant
with his
forward
JOHNSON, P.J.,
CHAPEL, V.P.J.,
case after a demurrer has been entered and
LUMPKIN, J.,
concur in result.
overruled, he waives examination of
suffi-
ciency of the evidence at the end of the
LUMPKIN, Judge, concurring in result:
State,
v.
State’s case. Snow
876 P.2d
got
straight: Appellant
Let me see if I
(Okl.Cr.1994);
State,
Jones v.
P.2d
psychologist,
access to a
but his
(Okl.Cr.1989);
State,
Doyle
925-26
one,
attorney did not want that
because he
(Okl.Cr.1988).
759 P.2d
Under such
claimed
a handful of mental health ex-
circumstances, this Court will instead review
country
perts
qualified
in the
to ad-
light
record as a whole in the
most
entire
subject Appellant’s possible
dress the
de-
favorable to the State to determine whether
judge gave him additional time to
fense. The
support
the evidence was sufficient to
health;
fact,
Holy
find this
Grail of mental
Snow,
charged.
crime
From this defense coun health reasonably get continuance based on deducted that if he he tried to another sel could have testify expert’s inability at the time gone his ease at the close had forward with (In fact, appears stage, trial was set it from of the State’s case first he would challenge the trial record defense counsel knew the witness have waived his VII, acquainted Transcript with the disorder. See Medlock v. 16. Trial 7-8. State, (OH.Cr.1994). 887 P.2d Although I note another Oklahoma trial attor- ney difficulty finding expert an had no such expert, petency he of a mental health I must would not be available for the when case). expert portion opinion with the for the contracted dissent to that which judge request denied the for continu- expert interpret seeks to to an this, ance. Based on this Court would not in that witness untenable manner. This trial, only a it reverse and remand for new opinion attempts to a denial elevate judge’s hold the actions constitute er- would expert defendant’s mental health of his analysis. ror not category choice into the same of a biased judge attorney altogether. and absence of an only following I from this can conclude the position supported by That is not the law. holding: series of events and this Court’s although an attor- a is entitled to defendant typically This saws the wood which necessarily ney, he is not entitled to one of Here, is in front of it. that wood is the (whether attorney his choice. If the of his principle governing well-established law not) deficient, appellant choice or is must attorney competency. To reverse on a basis only attorney not show how the was defi- repeated certainly which will not be not — cient, but he must also show how this defi- questionable to turn here —is what should be HOWEVER, ciency prejudiced him. if a only questionable dicta into law not saw- get defendant does not the mental health us, needlessly the wood front of but choice, expert preju- of his he need not show cutting down whole forests. he show his mental dice: need health expert expert was not the he wanted. I repeat that in a Let me different fashion: really not think do the Court wants to set Appellant the issue here is not whether principle foundation for a of law on such expert denied a mental health to assist him sandy, moving soil. The record is devoid of in preparing his defense because the trial relating evidence to what action defense judiciously guarded court qualified expert counsel had taken to obtain a granted expert expense. witness at state presented witness. We are with statements fact, Appellant with an ex- qualified expert in the record that a was not pert; Philip Murphy but Dr. did not think he very available Oklahoma when those state- qualified diag- to assist at trial after he State, ments are refuted Medlock v. a case suffering nosed from MPD. judicial of which we can take notice. Ex- judge an overabundance of caution the trial available, perts apparently but were opportunity afforded the defense counsel’s choice. thought obtain another who he agree Appellant’s attorney Because I qualified granted an extra six months to woefully incompetent by failing to act (1) expert. secure that The issue is whether manner; timely and because this failure cer- incompetent failing his counsel was to act tainly prejudiced allowing making arrangements manner in defense, present quality him to I concur trial; qualified expert present for his to be reversal is warranted. If the trial (2) whether, as a result of that counsel’s erred in manner it was in the failure to prejudiced by being failure periodically hold a and make a rec- forced, present defense, not to but ord which would chronicle defense counsel’s presenting vented a defense of the in obtaining qualified expert; efforts deter- quality he would have liked. There is even required mine if court assistance was in iden- possibility: another the trial court abused its tifying qualified experts; counsel was refusing Appellant’s request discretion in being dilatory, then take action secure him continuance which would have allowed expert for the defense to ensure the case was present the defense with the previously tried at the time set. (However, very wanted hard to blame *9 However, judge granted when he an additional I cannot believe while the (undeni- expert an attorney six months to obtain and be performance of a defense trial). trial) ably key any subject pared for Because the Court can— element in is prejudice, of well- to review to determine this same and should —reverse either these grounds, review not the com- it not an is available determine established need address
HOI
Fulminante,
analysis.
germane to the resolution
See Arizona v.
issue which is not
499
279, 306-08,
1246, 1263-65, 113
111 S.Ct.
of the ease.
U.S.
event,
the Court would hold this
subject
violation is not
The error
this case is ineffective assis-
Sixth Amendment
counsel,
analysis
right
expert
of
harmless error
because
tance
to an
of
choice,
wrongfully deprived of mean-
not harmless.
was “in
is
potentiality
it
ingful inquiry as to the
of
Court would take the fact
is not harmless
reasoning
apply
every
it
only possible valid defense.” This
this case and
conceivable
might
is flawed.
situation which
come before it based
to create
new
to an
Initially,
beyond
it
is
debate
error does
expert
light
of choice.
of the facts of this
automatically
simply be
warrant reversal
case, I
appropriate.
do not think that is
The
cause it violates the Sixth Amendment. See
real error is not an error which “transcends
Texas,
249, 256,
Satterwhite v.
486 U.S.
108
Fulminante,
process.”
the criminal
499 U.S.
(1988) (ad
1792, 1797,
S.Ct.
Illinois, 434 U.S. 98 S.Ct. (1977) (admission of identifi-
cation evidence in violation of the Sixth Clause);
Amendment Counsel Brown v. States, 223, 231-232,
United
(1973)
1565, 1570-1571,
S.Ct.
(admission of the out-of-court statement of a
STRONG, Appellant,
Steven Edward
nontestifying codefendant in violation of the
Clause);
Amendment Counsel
Coleman
Sixth
v.
Alabama,
1, 10-11,
Oklahoma, Appellee.
STATE
(1970) (denial
of counsel
It should also be debate would be exceptional case which a constitutional
violation will not be to harmless-error