Philliр Dewitt SMITH, Petitioner, v. The STATE of Oklahoma, Respondent.
No. PC-88-846.
Court of Criminal Appeals of Oklahoma.
Jan. 29, 1992.
826 P.2d 615
Robert H. Henry, Atty. Gen., Sandra D. Howard, Elizabeth J. Bradford, Wellon B. Poe, A. Diane Hammons, Diane L. Slayton, Steven S. Kerr, Asst. Attys. Gen., Oklahoma City, for respondent.
OPINION DENYING POST-CONVICTION RELIEF
LUMPKIN, Vice-Presiding Judge:
Petitioner Phillip DeWitt Smith has appealed to this Court from an order of the District Court of Muskogee County denying his aрplication for post-conviction relief in Case No. CRF-83-659. Petitioner‘s first degree murder conviction and death sentence were affirmed by this Court in Smith v. State, 737 P.2d 1206 (Okl.Cr.1987). The United States Supreme Court subsequently denied a Petition for Certiorari. See Smith v. Oklahoma, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987).
In January 1988, Petitioner filed an Application for Post-Conviction relief in the district court. An evidentiary hearing was held in February of that year. The district cоurt denied relief on September 13, 1988. It is this denial which the Petitioner appeals.
Petitioner raises nine (9) propositions of error. Several of these propositions contain numerous separate allegations of error. We have reviewed each and every claim of error and find that all of the claims except one are barred. Many of thеse allegations were raised on direct appeal and are therefore barred by res judicata. Castro v. State, 814 P.2d 158 (Okl.Cr.1991); Hale v. State, 807 P.2d 264 (Okl.Cr.1991); Coleman v. State, 693 P.2d 4 (Okl.Cr.1984);
Petitioner‘s first allegation, that he was denied effective assistance of counsel during the sentencing stage of his trial, was raised on direct appeal and is again raised on post-conviction. Petitioner goes to great lengths to present evidence which hе asserts is mitigating and which should have been presented during the second stage of trial. However, what Petitioner fails to do is support his argument with any legal authority.
An application for рost-conviction relief may not be founded on any ground which was not raised or which was knowingly, voluntarily, and intelligently waived in the proceeding which resulted in the conviction or sentencе unless the defendant shows sufficient reason why the ground was not asserted or why it was inadequately raised in any other proceeding. Tate v. State, 489 P.2d 501 (Okl.Cr.1971). Title
Further, Petitioner may not obtain review of an issue raised previously by presenting it in a slightly different manner on post-conviction. Here, Petitioner has pointed out specific instances of alleged ineffectiveness different from those instances raised on direct appeal. However, by failing to assert that the issue was inadequately raised on direct appeal, he may not now have a second appeal of the issues under the “mask of post-conviction.”
Other allegаtions of error raised now on post-conviction were not raised on direct appeal but could have been. These include a challenge to Billy Joe Dixon‘s second stаge testimony concerning a “shank” found underneath Petitioner‘s mattress (raised in his third allegation of error); and the failure of the prosecution to disclose that Victor Hickman had made prior inconsistent statements that were material to Petitioner‘s defense (raised in his fifth allegation of error). As these issues could have been raised on direct appeal and Petitioner has failed to explain why they were not, he has waived further review.
In his second allegation of error, Petitioner contends that insufficient evidence was presented to support a finding of guilt. Specifically, Petitioner argues that newly discovered evidence shows that Billy Joe Dixon‘s testimony has been so thoroughly discredited as to render it unbelievable аnd without Dixon‘s testimony, the evidence was insufficient to prove first degree murder.
Petitioner brings this issue to the Court pursuant to
Petitioner asserts that Dixon‘s testimony has been discredited by evidence that (1) Dixon was encouraged to believe he would receive leniency in exchange for his testimony; (2) Dixon expected to receive leniency and agreed to testify in order to avoid going to the penitentiary; (3) Dixon did in fact receive a lenient sentence after his testimony; and (4) Dixon admitted to several people that his testimony that the Petitioner killed the deceased was false.
The only part of these allegations which constitute material facts not previously heard is that Dixon‘s testimony at Petitioner‘s trial was false. It was established at the evidentiary hearing that subsequent to Petitioner‘s trial, allegations arose that Dixon‘s testimony was false. Robert Watkins, a cell mate of Dixon‘s at the time of Petitioner‘s trial, testified at the evidentiary hearing that Dixon hаd confessed that he had lied on the witness stand and that Petitioner did not say that he had killed the deceased.
In a very thorough evidentiary hearing on this issue, Dixon testified that any allegations thаt he lied on the witness stand were not true. He was adamant that his testimony at Petitioner‘s trial was the truth and that it was not given based upon any promises of lenient treatment made by the prosеcution. Even in the face of extensive cross-examination, Dixon did not retreat from his position. In addition, the evidence presented by the Petitioner did not support the allegations against Dixon.
It appears from the record that these allegations concerning the veracity of Dixon‘s testimony arose after the direct appeal and therefore fall under the category of newly discovered evidence. We have thoroughly reviewed this evidence and find that it is not sufficient to warrant relief.
The Petitioner bears the burden of prоving the existence of a probability that the newly discovered evidence, if presented at trial, would have changed the jury‘s verdict. Green v. State, 713 P.2d 1032, 1037 (Okl.Cr.1985).
Although the evidence of guilt at Petitioner‘s trial was circumstantial, adding the testimony of Watkins that Dixon lied about Petitioner‘s confession to the murder and Dixon‘s testimony that he told the truth about Petitioner‘s confession, we find that the outcome of the trial would not change. Billy Joe Dixon was thoroughly cross-examined at trial concerning his role as a police informer and any promises of leniency madе in exchange for his testimony.1 Accordingly, we find that the discovery of the new evidence warrants no relief.
In his fourth allegation of error Petitioner contends that he was denied a fair triаl through the use of evidence provided by police informants. On direct appeal, Petitioner only complained that the trial court failed to give the jury a cautionary instruction concerning the credibility of police informants. As this issue was fully addressed by this Court and as Petitioner failed to raise the specific issue now presented, he has waived further consideration of the issue.
Having carefully examined Petitioner‘s application and the District Court‘s findings of fact and conclusions of law, we find that Petitioner is not entitled to relief and the order оf the District Court should be, and is hereby AFFIRMED.
LANE, P.J., and BRETT and JOHNSON, JJ., concur.
PARKS, J., specially concurs.
PARKS, Judge, specially concurring:
On direct appeal, this writer dissented on the basis of the introduction of extremely inflammatory autopsy photographs at appellant‘s trial. Although I сontinue to adhere to the separate opinion I expressed therein, said issue is barred from relitigation on the basis of res judicata. Accordingly, I must concur in the instant opinion.