Steven Edward STRONG, Appellant, v. The STATE of Oklahoma, Appellee.
No. F 94-517
Court of Criminal Appeals of Oklahoma.
Sept. 14, 1995.
887 P.2d 1288 | 1101
In any event, the Court would hold this Sixth Amendment violation is not subject to harmless error analysis because Appellant was “in effect, wrongfully deprived of meaningful inquiry as to the potentiality of his only possible valid defense.” This reasoning is flawed.
Initially, it is beyond debate an error does not automatically warrant reversal simply because it violates the Sixth Amendment. See Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988) (admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment Counsel Clause); Crane v. Kentucky, 476 U.S. 683, 691, 106 S.Ct. 2142, 2147, 90 L.Ed.2d 636 (1986) (erroneous exclusion of defendant‘s testimony regarding the circumstances of his confession); Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986) (restriction on a defendant‘s right to cross examine a witness for bias in violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 117-118, and n. 2, 104 S.Ct. 453, 454-455, and n. 2, 78 L.Ed.2d 267 (1983) (ex parte communication between judge and juror which implicated the denial of a defendant‘s right to be present at trial); Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct. 458, 466, 54 L.Ed.2d 424 (1977) (admission of identification evidence in violation of the Sixth Amendment Counsel Clause); Brown v. United States, 411 U.S. 223, 231-232, 93 S.Ct. 1565, 1570-1571, 36 L.Ed.2d 208 (1973) (admission of the out-of-court statement of a nontestifying codefendant in violation of the Sixth Amendment Counsel Clause); Coleman v. Alabama, 399 U.S. 1, 10-11, 90 S.Ct. 1999, 2004, 26 L.Ed.2d 387 (1970) (denial of counsel at a preliminary hearing in violation of the Sixth Amendment Counsel Clause). It is also beyond debate there is a “strong presumption” an error will fall into the category of errors which are subject to harmless error analysis. Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). It should also be beyond debate it would be an exceptional case in which a constitutional violation will not be subject to harmless-error analysis. See Arizona v. Fulminante, 499 U.S. 279, 306-08, 111 S.Ct. 1246, 1263-65, 113 L.Ed.2d 302 (1991).
The error in this case is ineffective assistance of counsel, not a right to an expert of choice, and is not harmless. However, the Court would take the fact it is not harmless in this case and apply it to every conceivable situation which might come before it based on this attempt to create a new right to an expert of choice. In light of the facts of this case, I do not think that is appropriate. The real error is not an error which “transcends the criminal process.” Fulminante, 499 U.S. at 311, 111 S.Ct. at 1265. In addition, the United States Supreme Court has already provided an analysis to utilize in determining if a defendant has been prejudiced or the error is harmless. That Appellant may have been prevented from presenting the quality of defense he wanted because his “good” expert could not attend does not detract from the fact he could have presented the same defense with the expert he claims was of lesser quality. The failure of counsel to act in a timely fashion to obtain the additional expert is clearly a trial error, subject to harmless error analysis.
Accordingly, I must dissent to that portion of the opinion.
Appellant has tendered for filing a motion to supplement the record in the above-styled appeal from his Judgment and Sentence in Case No. CF-93-4643 in the District Court of Tulsa County. In that case, Appellant was convicted by a jury of Possession of a Stolen Vehicle, After Former Conviction of Two or More Felonies, and was sentenced to twenty-five (25) years in prison.
Appellant claims supplementation of the record in this appeal is necessary to support an allegation that his trial counsel was ineffective for failing to argue that the two prior felony convictions, used to enhance punishment in the present case, arose out of the same transaction or occurrence or series of events closely related in time and location such that they could not be used as separate felony offenses for enhancement purposes.
Appellant has also requested an extension of time to file the appeal brief pending a
Appellant is seeking to supplement the record with evidentiary matter which was not, but could have been, introduced in the trial court in this case. Under no circumstances will the rule concerning motions to supplement be interpreted to allow supplementation of the record with such evidentiary materials.
Although evidentiary hearings are not conducted at the appellate level, there is nothing to preclude this Court from remanding matters to the trial courts for additional fact-finding on specific issues when necessary. Such procedures have been utilized to thoroughly address ineffective assistance of trial counsel claims on direct appeal, when a compelling allegation and a proper request for evidentiary hearing has been made. See e.g. Wilhoit v. State, 816 P.2d 545, 546-47 (Okl.Cr.App.1991); Mayes v. State, 887 P.2d 1288, 1314-16 (Okl.Cr.App.1994), cert. denied U.S. ___, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995).
Propositions of error alleging ineffective assistance of trial counsel should always be raised in the appellant‘s brief-in-chief on direct appeal. When the allegation is predicated upon evidence which could have and should have been presented at trial but was not, appellate counsel should timely file the brief-in-chief which sets out the proposition of error alleging ineffective assistance of trial counsel, and submit an application for an evidentiary hearing together with affidavits setting out those items of evidence which are not contained in the record on appeal alleged to constitute ineffective assistance of trial counsel. The application and affidavits must rebut the strong presumptions of regularity of trial proceedings and competency of trial counsel, and must contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. If such a showing is made, this Court will remand the matter to the trial court for a full and fair evidentiary hearing which shall become a part of the record on appeal for this Court to review.
Because Appellant is improperly seeking to supplement the record, and because there is an adequate alternative to present his claims, this Court finds that Appellant‘s motion to supplement the record should be, and is hereby, DENIED.
This Court further finds the stay of the date for filing Appellant‘s brief should be, and is hereby, DISSOLVED. Appellant‘s appeal brief shall be filed in this Court within thirty (30) days from the date of this order.
IT IS SO ORDERED.
/s/ Charles A. Johnson
CHARLES A. JOHNSON, Presiding Judge
/s/ Charles S. Chapel
CHARLES S. CHAPEL, Vice Presiding Judge
/s/ Gary L. Lumpkin
GARY L. LUMPKIN, Judge
LANE, J., concurs in results.
STRUBHAR, J., concurs in result as to stay and dissent as to request to supplement.