Green v. State
881 P.2d 751
Okla. Crim. App.
1994
Check Treatment

*1 Wayne GREEN, Appellant, Michael Oklahoma, Appellee. STATE

No. PC-90-113. Appeals of Criminal of Oklahoma.

Aug.

752 appellant

both issues were available to under existing law at the time of his direct State, 1376, Wing appeal. See v. 490 P.2d (Okl.Cr.1971); O.S.1981, § 1382 12 2703. which have or could have been Matters not, appeal, on direct but were will not raised post-conviction proceedings. in be considered (OH.Cr.1984). State, 693 P.2d 5 Coleman v. Appellant further contends that he Chatfield, Tulsa, David Karin Johnson provided pay for should have been funds to Gottlied, appellant, at Post>-Conviction for expert assistance. this Hearing. appeal, was not raised on direct we note that Oklahoma, Ake v. Roberts, Atty., Whittington, Dist. Neil Don (1985), constitutes a State, McAlester, Atty., for at Asst. Dist. subsequent intervening change in the law. Hearings. Post-Conviction Thus, we will address this issue. This Court Devinney, Gutteridge, C. Don J. William holding has found that the in Ake v. Okla Jr., City, Appeal. appellant, for on OHahoma any expert homa does extend to “include Gen., Loving, Atty. A. Diane Susan Brimer ‘necessary adequate which is for de ” Gen., Blalock, City, Atty. However, Asst. Oklahoma a defendant must be able fense.’ appellee, Appeal. on expert to demonstrate a need for that to the prejudice from

trial court or substantial State, OPINION expert. lack of such Ake v. 778 P.2d (Okl.Cr.1989). 460, 464 n. 1 See also Tibbs v. JOHNSON, Judge: Presiding Vice (Okl.Cr.1991). State, P.2d 1376 Green, Wayne appellant, con- Michael was Appellant has failed to make such a demon Pittsburg County in victed District Court stration. Degree No. CRF-81-120 of First Mur- Case any attempt Appellant never made to ob- arouse der and sentenced to death. The ease expert expense, tain assistance State ei- stabbing out of of irnnate the brutal death Furthermore, prior during to or trial. ther Lynn Arthur Mosier at the McAlester State say appellant we cannot has demonstrated 5,1980. Penitentiary September His con- on prejudice expert from substantial the lack viction in was affirmed this Court Green argues Appellant expert assistance. testimo- (OH.Cr.1985). State, v. 713 P.2d 1032 ny demonstrating only weapon, one Supreme of the denied Court United States two, totally rather than would have discred- petition in for writ of certiorari Green eyewitness testimony. Combining ited this defense, testimony appellant with an alibi Appellant’s application good winning asserts he stood a chance of post-conviction relief was denied the.guilt/innocenee stage. the case We County Pittsburg District Court of on Janu- testimony disagree as such would have mere- 3,1990. denial, ary From that has ly cast doubt on the State’s witnesses. See appealed to this Court. Tibbs, 819 P.2d at 1376. this error, assignment ap In his first assignment of error must fail. pellant alleges process he was denied due proposition notify law when the failed to the de In his second State change Bellamy’s trial fense of the in Dr. testimo he is entitled to a new submits ny. Appellant additionally upon newly that the based discovered evidence. The submits change Bellamy’s testimony thoroughly opinion in Dr. addressed this issue on Green, itself, improper, appeal. 713 P.2d at Ac and of as it was not direct upon reasonably cordingly, judicata is will based facts or data relied this issue res Coleman, upon by again. P.2d experts in his field. These issues not be considered appeal. were not raised on direct at 5. remaining assignments initially they of never instructed that of the must con- seven

error1, appellant separately numerous issues re- raises sider and treat each defendant lating sentencing phase determining appropriate of the trial. when sentence. only of these problem This Court need address two This was further intensified when a *3 phase in joint as we find error the second of aggra- issues verdict form forth which set the requires that the death sentence trial which vating jury factors was utilized. The could be vacated and that the matter be remanded aggravating not find the existence of an fac- resentencing. to the district court for finding tor for one of the defendants without Moreover, appellant it for the other. and appellant’s that We first find sentence represented jointly by Parker were Mr. eighth of death violates the and fourteenth George Zellmer and Mr. Richard Lerblanee. amendments to the United States Constitu very joint representation The nature of this “heinous, atrocious, tion because the or cru precluded being defense counsel from able to aggravating applied in el” circumstance was effectively separate distinguish appellant unconstitutionally vague an and over broad during from co-defendant Parker the sen- previ this issue was not manner. tencing stage of trial. by ously appellant, May raised we note that 356, circumstances, Cartwright, remaining nard v. 486 U.S. 108 S.Ct. Under these 1853, (1988), aggravating 100 L.Ed.2d 372 constitutes a circumstances cannot be consid- subsequent intervening change in the law. Maryland, ered reliable. See Mills v. 486 review, Upon jury 367, 1860, it is clear that the instruc U.S. 108 S.Ct. 100 L.Ed.2d 384 given (1988). present Therefore, tion in the case is identical to this has no alterna- Court given Cartwright in the instruction There appellant’s tive but to vacate the sentence of fore, jury’s finding aggravating of this death and remand this case to the district circumstance must be invalidated. very court for doWe this reluctantly. aggravator in When an is declared ninth his firm, clearly power this has the hearing contends that him afforded on reweigh remaining aggravating circum post-conviction application in district mitigating stances and factors. Clemons v. fundamentally court was unfair and did not 738, 110 1441, 108 Mississippi 494 U.S. S.Ct. comply Appellant spe- with Oklahoma law. (1990). L.Ed.2d 725 See also Sochor v. Flor cifically improp- submits that the trial court ida, -, 2114, 504 112 U.S. S.Ct. 119 erly evidentiary hearing limited the (1992); Black, Stringer L.Ed.2d 326 v. properly prepare complete findings failed to -, 1130, S.Ct. 117 L.Ed.2d 367 of fact and conclusions of law. These issues (1992); 308, Dugger, Parker v. 498 U.S. were also raised his motion to remand (1991). 731, 112 S.Ct. In addi filed with this Court on March 1992. On “heinous, atrocious, ag tion to the or cruel” 20, 1992, appellant’s November motion was circumstance, gravating jury in this case partially granted and this matter was re- aggravating found that three other circum Pittsburg court manded to the district sufficiently proven. stances had been Under County findings for further of fact and con- circumstances, typi these this Court would compliance clusions law with O.S. cally option reweigh. exercise its seq. Judge § 1080 et District Anne typical this is not a case as Moroney complied with this Court’s order on stage second instructions and verdict January proper 1993. As a order has provide separate forms failed to for the Court, now been entered the District this individualized treatment of and his any issue need not be addressed further. co-defendant, Danny George Parker. See Ohio, 586, 602, Regarding appellant’s Lockett v. 438 U.S. contention 2954, 2963-64, (1978); improperly 57 L.Ed.2d the district court restricted evi Eddings post-conviction hearing, v. 102 dence at the we find jury evidentiary hearing no error. An is not man- III, IV, V, VI, VII, VIII and X. Propositions majority were either 22 the of these issues proceedings. post-conviction in all dated 1083(b). case, could have been raised on direct an raised or O.S.1981, § In the instant appeal. These issues will not be reviewed granted for the lim evidentiary hearing was judicata they barred res or only alle anew as are addressing certain purpose ited review, Stafford, 731 P.2d at that those have been waived. it is clear Upon gations. only sub-prop- three evidentiary hear 1374. We need address at the presented not issues pleadings ositions. fully on the ing be addressed could evidentiary hear and record. First, appellant contends the State’s fail- required. specific issues was ing on these produce improperly evidence inter- ure to (Okl.Cr. State, 823 P.2d 370

See Johnson performance. counsel’s For fered with trial 1991). sub-proposition, appellant incorporates this *4 legal presented in his the same authorities assign in his next Appellant contends Discovery “Request and Protec- for Interim errors, fundamental error that other ment of filed with this Court on March tive Order” misconduct, require including prosecutorial Appellant maintains the has im- 1992. State sentencing hear trial or a new either a new exculpatory evidence. properly withheld of address the issue mis ing. need not We However, nothing appellant’s contention is sentencing to the hear as it relates conduct Consequently, a bald assertion. more than already that this ing have determined as we allegation, appel- to this and we find no merit for should be remanded matter discovery request lant’s for is denied.2 allegation prosecutorial miscon to the As trial, guilt phase of this issue during the Second, duct appellant points to the lack of rejected. appeal direct and was dealt with on expert provided to aid him in his assistance Green, merely Appellant is 713 P.2d at 1041. Appellant defense. maintains re-allege to or enhance his attempting now provide pay to State’s failure to funds prosecutorial miscon arguments of former expert assistance interfered with his coun thoroughly reviewed As this issue was duct. ability effectively represent Ap him. sel’s to reviewed appeal, it will not be on direct perfor pellant further asserts trial counsel’s State, 731 P.2d anew. to mance was deficient because counsel failed Stafford (Okl.Cr.1987). request make a for such assistance. ke v. A assignments ap- final two (1985), constitutes effective as- pellant contends he was denied law, subsequent intervening change a in the sixth, in violation of his sistance of counsel find this issue does not affect our deter we rights. amendment eighth and fourteenth appeal mination on direct as did basically this claim into two Appellant divides prejudice not suffer substantial from the lack (1) State, categories: that the actions of the Tibbs, expert. of such an See 819 P.2d by through representatives, improp- its 1376. ability erly counsel’s to effec- interfered with (2) tively appellant; and that trial represent Third, part as of his contention that Each performance was deficient. counsel’s deficient, ap performance trial was counsel’s categories multiple sub-prop- of these contain pellant slips that he an ositions of error. appellate coun denied effective assistance appellate specifically relating to the sel. He contends counsel was inef Those issues ad- fective counsel failed to raise two sentencing phase of trial need be because (1) Furthermore, specific improperly that trial court the issue of ineffec- issues: dressed. to on the included of of trial counsel was dealt with failed instruct lesser tive assistance (2) Green, evidence; 713 fenses as shown appeal on direct and denied. review, stage improp- Upon it is clear that that the verdict forms P.2d at 1037. second course, by filing appropriate discovery may be entitled to some of trict court Of purposes requested for request pursuant the information herein resentencing. to Allen v. District Court of ripe (Okl.Cr. this issue is not for Washington County, 803 P.2d 1164 Rather, appel- review this Court at this time. 1990). through may pursue lant such information dis- erly right Maryland, him to be considered The Court cites Mills v. denied of his separate apart from co-defendant Par- U.S. 108 S.Ct. 100 L.Ed.2d 384 (1988). point out I continue the Oklahoma ker. sentencing process distinctively is different already directly addressed the have We Therefore, Maryland. from that utilized stage of the second verdict forms arid issue the utilization of a citation to Mills is limited requiring remand for resentenc- found error application in its to the Oklahoma law and ing. any error from the failure to procedure sentencing in capital a case. appeal on direct has been raise this issue appellant’s contention that the cured. As improperly

trial court failed to instruct on offenses, appel- included we find

the lesser

lant has failed to a reasonable demonstrate that, alleged

probability but for counsel’s er-

ror, appeal the result of the direct would Washing-

have been different. Strickland v.

ton, 668, 694, 2052, 2068, Terry Wayne TAYLOR, Appellant, *5 Finally, appellant has not contended that

appellate counsel was ineffective its fail- any ure to raise of the issues herein that we Oklahoma, Appellee. STATE have now were waived for determined failure F-91-502, Nos. M-91-278. appeal. to raise on direct in order any to avoid doubt we have considered these Appeals Court of Criminal of Oklahoma. issues, individually aggregate, and in the reasonably conclude received effec- Sept. appellate tive assistance of counsel. See Strickland, 689,104 S.Ct. at 2065. foregoing, appellant’s

On the basis

sentence of death is and this VACATED

matter is to the district court REMANDED STRUBHAR, JJ.,

LANE and concur.

LUMPKIN, P.J., CHAPEL, J., concur

in result.

LUMPKIN, Presiding Judge, concurring

in result: agree

I statement of with Court’s

law and record this case. properly supported.

result reached is How-

ever, this Court should not abdicate its au-

thority responsibility adjudicate issues proper part appellate process.

as a of the presents complete

This is a ease which a

record, allowing reweigh thus the Court remaining aggravating circumstances

against mitigating evidence. We should responsibility. I shirk this would re- validity

weigh in this case and determine the

of the sentence of death.