*1 1225 “duty appellant has the The privileged. all materials into the record incorporate TAYLOR, Appellant, F. Charles The relief.”21 necessary secure corrective v. plaintiff that the of evidence record is void record incorporate into the attempted to Oklahoma, Appellee. STATE or a generated post-petition files Deere’s No. F-96-1102. uphold will This Court summary thereof. court absent of the trial the decision Appeals of Oklahoma. Court of Criminal record.22 Feb. 2000. CONCLUSION VII.
¶ conclusion, proper- trial court summary judgment to the defen-
ly granted
dant, Company, as Deere Insurance John dispute of material genuine no
there was discre- court did not abuse its
fact. The trial motion for denying plaintiffs
tion in err in trial court did not The sanctions. - file an plaintiff to
refusing to allow the motion for response to Deere’s
amended judgment of the
summary judgment. The of Civil affirmed. The Court
trial court is
Appeals’ opinion is vacated. has filed a motion plaintiff 27 The
. on section 978
appeal-related costs based Section
title 12 of the Statutes. Oklahoma recovery costs appeal-related
978 allows judgment appeal. Be- is reversed
when judgment of the trial affirm the
cause we
court, appeal-related plaintiffs motion is denied.
costs APPEALS’ OPINION
COURT OF CIVIL
VACATED; TRIAL COURT’S JUDG-
MENT AFFIRMED. C.J., HARGRAVE, SUMMERS, WATT, BOUDREAU,
V.C.J., OPALA,
WINCHESTER, JJ., concur. KAUGER, J., in result. concurs J., LAVENDER, dissents. Oil, Grothaus, 981 P.2d 22. See Halliburton Producing Oil ¶ Co.
21. Halliburton 1249; P.2d 1244. see OK City Plumbing Supply Co. Oklahoma Norman Gilíes, OK
1227 *3 imposed in jury’s accordance with the ver- perfected dicts. appeal has this Court.
FACTS mid-October, 1995, 2 In pri- three weeks crime, or to the commission of the Pelz, Appellant’s girlfriend, and Shelia brought pouch methamphetamine paste Verner, high to the house of Steven school Verner, Appellant. Appellant friend of McAlester, who lived near had not seen each *4 years. other for Appellant several had drug learned Verner awas dealer and sold methamphetamine paste to Verner for $1,700.00. gave Appellant Verner $400.00 agreed pay Appellant to the remainder money of the methamphet- after he sold the Appellant amine. Verner also allowed stay in Pelz to his home until he sold the Elliott, Indigent later, John Thomas methamphetamine. Defense About a week Ver- Norman, System, Miller, McAlester, B. payment Jim ner Appel- made another $400.00 for Defendant at trial. gave Ruger lant and him pistol a 9mm hold Appellant as collateral. made several Wynn, Attorney, Donnita District Christo- attempts to collect his debt without success. Wilson, pher Attorney, Assistant District ¶ McAlester, for the State at trial. 3 Frankie Oss testified he had not seen Appellant years in six Appellant when Drummond, A. James Sandra Mulhair Cin- up living. Appellant showed where Oss was namon, Luker, H. Appellate William Defense Stillwater, living told heOss was in but was Counsel, Norman, Appellant appeal. for on down to collect a debt from Verner and was Edmondson, Attorney W.A. Drew General staying night at Verner’s home. The before Oklahoma, Whittaker, of Robert Asst. Attor- shootings, Appellant returned to Oss’ General, ney City, Appellee Oklahoma on house with Appel- Pelz and two other men. appeal. going lant told Oss the men were to assist getting money him in from Verner and OPINION Ruger. showed Oss day the 9mm The next JOHNSON, Judge: noon, Appellant around found Oss Mayfair night Motel where he had moved the ¶ Taylor, F. Appellant, Charles was Appellant before. going told Oss he was charged Court, Pittsburg County in District money Verner, collect his from otherwise he (malice CRF-95-570, Case No. with Murder might gun shoot Verner with his if he own (Count aforethought) Degree I), in the First pay. did not Oss testified he did not take Shooting and three counts of with Intent to Appellant seriously, but cautioned him about (Counts IV). II, III, Kill The found spending the rest of penitentia- his life Appellant guilty on all counts and recom- ry. imprisonment II, mended life on Counts III penalty and IV and the death I Armstrong Count 4 Steve testified that on No- finding aggravating after two circumstances: Appellant vember and Pelz came to Appellant knowingly great created a risk of his house. Armstrong Verner also owed person; money death to more than one methamphetamine. and the Armstrong murder purpose was committed for the Appellant 12-pack stated consumed a of beer avoiding preventing or a lawful or arrest between noon and nine o’clock. He testified prosecution. Judgments Appellant go Sentences were and Pelz left to to Verner’s to began exited Appellant Adrianne the vehicle and money. had their if Verner see saw away from the she “cap the to run house. When Armstrong going he son told (Pelz) attempt- Lindsay, (Verner) Appellant shoot Adrianne would that bitch a so of bitch friend, Appellant to aid her but ed to return up and leave him alone.” shut lay ground, her. While she on the shot night question, 5 On again. Appellant her then Appellant shot testified he Verner went to Verner’s home. they sped away. car and got into Pelz’s kitchen, him offered Appellant into the took report the telephoned Michael Sauer and said: food gave Appel- shootings description money.. I Charles, you I know I some owe lant, the vehi- description his name and you money. pay Whatever plan to do Busby apprehended cle. Weeks and Officers left, pay plan I you think the debt is police Pelz chase. Appellant and after a now, I but am any right I don’t have you. a check and working. getting stepped I will out the driver’s side be 10 Pelz - you’ll I take care of. on her be the one and laid down stomach. side and passenger’s stumbled out before long how it would be Appellant asked walking wrong direction. started off responded pay him back and Verner he could arrest, Appellant complained he Upon his be weeks. that it would about two finger, taken had hurt his but declined to be *5 good enough. He replied that was not hospital. to the cry going to at as if he was looked Verner ¶ said, “I’m it’s down Appellant and worried about 11 at that before testified stated being being.” home, or Verner point of he had consumed he to Verner’s went attempt methamphetamine. out in to console he reached an He admitted alcohol and crying. He keep and to him from Appellant having gun inside his shirt Verner’s loaded door, to tell me Appellant, “You mean he then asked but said when he knocked Ap- kill they’re going payment me over going upon $800.00?” to return it was pistol away, pulled a pellant shoved Verner money. He also testified when Verner scared, in him, from inside his shirt and shot Verner out towards he became reached back, pulled gun mouth. from pushed him out the shirt, and him in the face. within his shot ¶ then shots 6 Verner heard two more in Appellant suicide thought grabbed had committed that 12 He stated when Verner However, were these shots flipped the next room. out ground, fell to the he his face and eventually his friend that killed running the ones the door. towards- and started living room, Ap- who room through Michael Sauer was running living While his watching television. then heard Verner corner of pellant movement of the saw out scream, Daddy, Lindsay “Daddy, daughter direction of eyes and fired twice in the his help Outside, and ran the front room me” into more he saw two the movement. Lindsay floor. lying shot on the screaming found running him people towards door of the house shooting looked out the front He just Verner direction. started their Appellant N. Smith saw shoot Adrianne Pelz Pelz’s drove off. got then into car and Appellant twice. happened, him what had but asked could not remember. said he ¶ Lindsay Pelz’s 7 testified she believed explain why it Appellant the shots. 13 could not had backfired when she heard car around put him Verner his arm Lindsay she was scared when exited Pelz’s vehicle where Further, telling not remember and started him. he could sitting with her friend Adrianne Lindsay hoped Appellant Appellant he she died. house saw toward the when she shot, but the attempted to not aim as he emerge waving pistol. testified he did She was Lindsay just flailing and he gun was around passed, into the house. she run As him. die, anyone running shooting towards say, hope you “I bitch” and it heard him was telling he did not Oss Appellant Lindsay shot in the side He remember then (cid:127) gun. kill Verner with his own going to her head. 1230 facts will they Other be revealed as responds 18 The State the trial propositions giving
become relevant to the of error. court erred in voluntary intoxi-
cation instruction
Ap-
because evidence that
pellant
amphet-
had consumed alcohol and
JURY SELECTION ISSUES
day
amines on the
of the offense was not
proposition
15 In his ninth
of er
upon
sufficient
give
evidence
which to
ror, Appellant
challenge
raises a
se
Apart
instruction.
Armstrong’s
from Steve
prosecution
lection. He contends the
violated
testimony
Appellant
that he and
shared a 12-
Kentucky,
Batson v.
U.S.
S.Ct. pack
day
shooting frenzy,
of beer the
(1986) by using
all but
only
evidence
had taken
peremptory challenges
one of its
to strike
drugs or consumed
Appel-
alcohol came from
women and the
black
sole
male.
lant.
give
Because
was able to
reply
states in his
brief there is no record
detailed account of the events and of his
evidence of venireman Emanuel Sexton’s
conduct, he
sufficiently
failed to show he was
subject
race. This
was the
intoxicated to raise a reasonable doubt of his
proposition
Application
of error
ability
specific
to form
intent.
Evidentiary Hearing
For
On Sixth Amend
¶ Voluntary
intoxication is not a
ment
remanding
Claims.
our Order
O.S.1991,
defense to
culpability.
criminal
evidentiary hearing,
an
we found the evi
However,
§
voluntary
intoxication has
supporting
dence
this claim
appel
long
recognized
been
as a defense to the
late record and
Taylor
available for review.
crime
Degree
of First
Malice Murder.
State,
1998 OK CR
1231 only no appropriate “where there is on first struction not entitled to an instruction was manslaughter. design any particular to kill premeditated Shrum v. 1999 degree 10, Shrum, 41, 10, 41, proposi- This person.”); 991 1999 OK 991 OK P.2d CR CR 1036(holding only therefore denied. tion is P.2d at court should related instruct on lesser included and/or proposition 21 In second giving offenses the evidence warrants where error, fifth of the of he contends the element instruction). Accordingly, any an error such [Instruc degree instruction second murder language of Number 17 Instruction and warrants 17] tion Number was defective doubt, beyond a was harmless reasonable degree for first of his conviction reversal was because not entitled as The fifth read follows: murder. element Simpson instruction at all. v. “Fifth, conduct is not done with the ¶40, 690, 35-36, 702; Chapman P.2d CR harming any taking par of life or intention 824, 18, California, 386 U.S. 87 S.Ct. parties recognize individual.” Both ticular 705(1967); O.S.1991, § L.Ed.2d 3001.1. harming” language in the removal “or proposition This is denied. Criminal Edition of the Uniform Second Jury 2d was [OUJI-CR 4-91] Instructions TRIAL ISSUES SECOND STAGE by Willingham ordered Court ¶ 23, P.2d error, proposition 23 In his fourth denied, 1080-81, cert. 624 U.S. 118 S.Ct. Appellant contends the evidence was insuffi (1998). However, 2329, 141 L.Ed.2d creating “knowingly a cient sustain giving State contends the instruction contain circum great aggravating of death” risk language was harmless ing harming” the “or aggravator stance. has held this This Court error, Willingham this Court because said proven is acts of defendant “which degree depraved mind that second murder great create a risk of death to another in offense was not lesser included location, time, proximity, in terms close degree should not murder the instruction v.State, killing.” and intent to the Le given submits he have been all. ¶ 33, OK CR because the entitled the instruction supported it. (1998). may appropriate “It be killed, only person is more where one where ¶22 disagree. The We elements killed, or more than person than is where one depraved degree mind murder are as person but murders are not one is killed follows: *7 Here, contemporaneous.” Id. the evidence human; a 1. death of person and Appellant killed one shot showed by conduct which was immi- 2. caused This was sufficient three others. nently dangerous person; another Appellant jury’s finding support the that defendant; that of the 3. the conduct was great a of death to knowingly created risk depraved 4. the conduct a mind evinced person. more than one life; disregard of human in extreme argues aggravating 24 Appellant also this with the conduct is not done the inten- vague We circumstance is and overbroad. any particular taking tion of the life of rejected previously claims and have similar individual. Douglas the v. decline to revisit issue. See through ran the Appellant testified that as he State, 79, ¶98, 651, 951 P.2d 1997 CR OK room, he out the living saw movement of 195, 677,cert, denied, 884, 119 S.Ct. 525 U.S. eyes in that of his and fired direction corner State, (1998); 142 1995 L.Ed.2d 159 Valdez twice, killing suggest facts a Sauer. These ¶ 68, 363, 382, 18, cert. 900 P.2d OK CR design to effect the death of Sauer and there 425, denied, 967, 133 516 U.S. 116 S.Ct. degree support do not second murder fore a (1995). assignment of er This L.Ed.2d 341 State, Paxton v. 1993 OK instruction. Cf. ror is denied. ¶ 7, 1316, denied, 59, 1309, cert. CR 886, 227, assignment his of 25 In fifth 115 513 U.S. S.Ct. (1994) error, claims was insufficient (holding degree in- there murder
1232
finding
jury’s
aggra
question
the
of the
regarding
meaning
evidence to
the
of life
vating.
“avoiding
prevent
of
or
imprisonment
possibility
circumstance
the
pa
without
of
role,
ing
prosecution.” “The
of
coupled
giving
Supplemental
arrest
focus
the
with
of
its
.or
aggravator
3,
that the murder was committed
jury
Instruction No.
coerced the
to return
prosecution
or
avoid lawful- arrest
the
guilty.1
persuaded by
a verdict
are not
of
We
.is
murderer;
state of mind of the
it is he who Appellant’s argument. This Court has ruled
of
purpose
avoiding
pre
must have the
or
propriety
on the
of and the circumstances
venting
prosecution.”
lawful
or
arrest
Gil
given.
when the Allen instruction should be
71, 104,
bert v.
1997
CR
951
OK
P.2d
Mayes,
We find no
discretion.
abuse of
See
98, 122,
denied,
890,
¶¶
cert.
525 U.S.
126-137,
44,
1994 OK CR
¶27
proposition
In
seventh
provide
a meaningful eligibili
of
scheme fails to
error, Appellant
decision,
argues
ty
the combined effect
of
aggravating
because
some
of the trial
O.S.1991,
court’s refusal
to answer the
circumstances
set
forth in 21
154,
492,
Supplemental
(1896).
Instruction No. 3 was the Allen
17 S.Ct.
1233 case, in this and we find was done facially vague also Id. Such only but § not 701.12 are broadly they no error. interpreted so have been murder anyone convicted of applied
can be
person
ASSISTANCE
making that
INEFFECTIVE
degree, thus
CLAIM
Appellant ac
OF COUNSEL
eligible for a death sentence.
holding in Romano v.
knowledges our
III, Appellant
Proposition
In
raises
¶¶ 113-116,
P.2d
1993 OK CR
perfor-
following instances
deficient
1, 114
392-393,
S.Ct.
affirmed, 512 U.S.
support his ineffective assistance
mance to
(1994) (holding Oklahoma’s
129 L.Ed.2d
counsel claim:
law,
considered to
case
when
Statutes
any open-
to make
A. Trial
failed
counsel
prop
guidelines to
sufficient
gether, provide
statements,
significant
ing
failed to file
whether
prosecutorial discretion
erly direct
motions,
effectively
failed to
cross-ex-
it is
argues
but
penalty),
to seek the death
witnesses,
key
to make
failed
amine
entirely
prosecutor to
something
for the
else
objections,
to make
significant
failed
eligibili
death
discretion as to
have unlimited
closing arguments
sup-
significant
ty.
theories, and thus
port of defense
from trial
prejudice
presumptive
is
Romano,
¶29
where
misreads
subject
prose-
failure to
counsel’s
Court,
relying on Bordenkircher
this
meaningful adversarial
cution’s case to
663, 668,
Hayes, 434 U.S.
testing, violating Appellant’s Sixth
(1978), specifically acknowl-
Rights
effective coun-
Amendment
discretion was
edged
prosecutorial
sel.
There,
limitations
addressed
unlimited.
we
utterly
present
B. Trial counsel failed
of a
in the context
prosecutorial discretion
guilt
support its
violation,
available evidence to
holding “[l]imits
constitutional
state
defense, to make obvious cross-
phase
by virtue of the statu-
on this discretion exist
defense,
support
examination
law as well
tory
governing criminal
schemes
arguments to
and to make effective
law.” Ro-
practice of
governing the
as those
¶¶
jury in
of this defense.
mano,
P.2d
CR
Romano,
continue
light
we
at 393.
1)
eyewitness evidence of
Failure to use
sentencing
capital
scheme
find Oklahoma’s
preliminary hear-
from
intoxication
is
assignment of error
This
constitutional.
ing.
denied.
2)
exploit the
of and failure to
Misuse
witness,
expert
who
sole
defense’s
proposition of er
For his tenth
only
mo-
last
employed
ror,
that admission
contends
ment.
aof
impact
recommendation
victim
witness’
and ar-
to utilize
Trial counsel failed
C.
an unconstitutional
of death was
sentence
depraved
defense of
gue the available
Sixth,
Fifth,
Eighth, and
infringement of his
negate the
in order to
mind murder
rights.
opinion
An
Fourteenth Amendment
intent,
specific
evidence
State’s
punishment
permis
is
appropriate
as
strong
had
available
which
984(1).
O.S.1991, §
In Led
under
sible
it,
appropri-
was the
and which
sustain
¶5, 31,
better
for murder
ate defense
880, 890-891,
will be
held this evidence
we
degree.
heightened
de
with
viewed
this Court
trial counsel
Closing arguments of
D.
scrutiny
weigh
pro
we will
gree of
fundamentally
prejudicially
were
*9
against
its
of such evidence
bative value
deficient.
“Any
opinion as to
prejudicial effect.
impeach-
to use
Trial counsel failed
E.
given as a
should be
recommended sentence
Lindsay
against
Ver-
ment
ques
response to a
straightforward, concise
ner.
is; or
asking
the recommendation
tion
what
by
to be effective
counsel failed
F. Trial
of recommendation
a short statement
sup-
objecting
trial court’s
statement,
amplification.”
without
written
record,
plemental instructions on the issues of
but we shall determine the ultimate
parole
and
life without
deadlock.
issue whether trial counsel was ineffective.
3.11(B)(3)(iv),
Rule
Rules
Court
though cognizant
G. Trial counsel
of
of
18,
Appeals, O.S.Supp.1995,
Criminal
Ch.
opportunity,
discovery
failed to seek
of
(1998);
State,
App
19,
v.Wood
1998 OK CR
gun,
Steve Verner’s Mac-11
which
¶ 63,
1,
959 P.2d
16. After
and
review
con-
Verner claimed had been
taken
his
record,
sideration of the
we find the trial
days
sister’s house three
before the
findings
court’s
sup-
conclusions are
crime, in
having
order to test it for
ported by the record and we shall address
night
been fired on the
of the shoot-
Appellant’s ineffective assistance of counsel
ings.
claim in accordance therewith.
H. Trial counsel was
hav-
ineffective for
J. Trial counsel
I.
wherein
venue
least have been done after voir
when more were available.
Trial counsel-failed to seek a
community feeling. This should at
tion witnesses
lor to
stage of trial.
failed to
of his
ing Appellant testify in the context of
other
despite high
testify
testimony
representational
many
adequately prepare
failed to call
or to match the
were excused for cause.
other
with the
word of mouth and
than Dr. Sharp
failures,
appropriate
change
Mr.
purpose
mitiga-
dire,
Tay-
of deficient;
leging prejudice must show “that counsel’s
Spears
2052, 2064,
the deficient
ing:
reasonable
Washington, 466 U.S.
S.Ct.
sel’s conduct falls within the wide
tive
overcome
431, 445,
assistance
[1]
678,
that trial
34 To
professional
1235
ney’s
not to interview witnesses
the fact
decision
Trial counsel believed
influence.
of
rely
and to
on other sources
informa-
know Michael Sauer “fit
Appellant
not
did
tion,
professional
really
if
in the exercise of
Appellant
had
made
right
fact” that
into the
long
judgment, is not ineffective counsel.
range
His
strate-
no
kill him.
motive to
to be
gy was
and
consistent.
to be credible
mind, we
With the aforesaid in
address
strategy
“trying
Trial
stated his
was
counsel
Appellant’s claims.
factually
escape specific
to
intent
and testi-
¶38 First,
argues
Appellant
trial
monially”
fall on
to rise and
credi-
“[o]ur
and
waiving opening
counsel was ineffective for
bility
ability
the
to
and
of
see that
the
trial,
stages
thereby
statement at both
of
drugs
man
been on them —a
that’s on
—had
failing to tell
what
defense theo
the
history
make a
long-running
with them-could
ry
jury why
was or to tell
case
up
given
mistake
be screwed
on a
and could
they
life.
spare Appellant’s
should
At the
day
mistake.”
and make a bad
evidentiary hearing, trial counsel testified he
he
36
counsel testified
did not use
Trial
why
say
opening
could not
he waived
state
expert
stage
as
his
witness as a
witness
in
stage
ment
of trial. Whether to
either
strategy
it
part of
trial
because he felt
his
opening
make an
statement
case is a
testimony
put
to
it on at
would diminish
Here,
strategic
must make.
decision counsel
Additionally,
stages.
both
trial counsel testi-
Appellant
show that
trial counsel’s
cannot
fied the
raised
the trial was not
defense
opening
“failure” to
an
was
make
statement
“literal,
voluntary
in the
absolute
intoxication
not
prejudicial
the decision
to make
or that
defense
to elimi-
sense.” Trial counsel’s
was
opening
had an
an
statement
outcome on
aforethought by arguing
nate
the de-
malice
verdict.
knowledge
fendant
no
of
had
the deceased
him as a reflex.
shot
Trial counsel
¶ Next, Appellant relies on
39
Cron
Sharp
Dr.
put
during
testified he
4ic,
claim trial
his
counsel was
stage mitigate Appellant’s
through
acts
his
failing
ineffective
to cross-examine nine of
dependency.
drug
argues
Appellant
thirteen witnesses.
none of
1, 32,
37 In
Boltz v.
CR
surviving
witnesses were cross-examined
1117, 1126,
denied,
cert.
502 U.S.
availability
impeachment
despite the
of
846,
143,
(1991),
112
“[A]n investigation through the head and the choice his into few- had shot to channel performance. upon other was not deficient plausible er than all lines defense victims Additionally, strategy are find trial counsel’s decision which his reasonable we he bases Armstrong5 impeach con on the basis of those as- Steve be his choices strategy. sumptions with trial are reasonable-” An attor- sistent Cronic, Armstrong's complains tes- S.Ct. trial United States timony preliminary with his inconsistent (1984) was (holding if hearing testimony and that counsel failed to subject entirely prosecution’s counsel fails to impeach preliminary with same. At the him meaningful testing, case to adversarial there then hearing, Armstrong he and testified rights has been a denial of Sixth Amendment shooting methamphetamine engaged had both adversary process presumptively makes itself testified, Armstrong by injection times. several unreliable.) specific showing prejudice No was " that, .prior ... Charlie-he not mad Alaska, required in Davis v. U.S. said, nothing, I we’d had a about good because like (1974), S.Ct. because day. laughing joking We had been petitioner right "denied the had been of effective beer, drinking everything.” included about shooting This "would cross-examination” which be constitu- speed, Armstrong’s firing pistol .38 magnitude tional of the first and no error yard. Armstrong Appel- indicated that out prejudice showing pros- amount of want of would about the lant’s was humorous demeanor S.Ct., Id., 1111). collecting left pects as he with Pelz. cure it.” at his debt *11 rulings Propositions methamphetamine 40 Because of our in acute intoxication. Dr. II, VII, supra, we trial Sharp VI and find counsel symptom described one such as disas- failing sociation, was not ineffective for to use evidence wherein individual would re- “[t]he degree depraved to second mind member details of the events. But because of object failing Supple- murder to they’re experiencing, impul- the delusions mental Instructions and 3. sivity, just reacting the sense of and not they planning, why they wouldn’t understand ¶41 Appellant’s We next address doing they doing. They were what were regarding claim trial counsel’s misuse of and it, they just would remember wouldn’t under- fully failure to utilize the defense’s solé ex why” stand pert Sharp, Dr. Bill psy witness a clinical chologist and Executive Director of the Nor ¶ 43 Trial counsel testified at the evidentia- Dependency man Alcohol and Chemical that, ry hearing despite the lateness of Dr. This Center. was one of the issues remand Sharp’s hiring, he never felt he was unable to evidentiary hearing. ed for At the eviden- get Sharp what he wanted from Dr. and he tiary hearing, testimony established that using Sharp never considered Dr. as a first emergency request” trial counsel made “an stage part witness. It was of his trial strate- Sharp provide expert of Dr. Bill assis so, gy not to do because it would diminish his in tance this case. Trial counsel did not testimony put stages. it on at both When specify Sharp. how he wanted to utilize Dr. if it Sharp’s asked occurred to him that Dr. Sharp provided prior Dr. was not with rec expertise might establishing be of in use ords which would have corroborated infor voluntary defense, intoxication trial counsel provided by Appellant. mation him Dr. regard stated he did not recall. With Sharp administering Appel was still tests to utilizing Sharp Dr. to establish the lack of day lant the first on of trial. He wrote his premeditation, trial counsel stated it must report day on the second of trial and faxed not have occurred to him or he would have Sharp it to trial counsel. Dr. met trial with Sharp. However, called Dr. trial counsel tes- day counsel on the third of trial after testimony tified he did not think the of an testified, stage. Sharp Dr. first “[i]t was not expert Sharp such regarding as Dr. the ef- participated until I came down and in the drags fects of on the brain and behavior I understood [that the terms first and any impact mens rea would have stage]. fact, And then I after the guili/innoeence phase of trial. view of trial myself why wondered to I hadn’t been used using Sharp counsel’s belief that Dr. Sharp Dr. earlier.” testified had he stage testimony would diminish his utilized, provided been he could have infor stage, the second we find trial counsel’s stra- tending prove Appellant mation “did not tegic Sharp choice not to use Dr. in the first capacity have the to form the intent stage of trial to be reasonable. committing terms of the murder.” evidentiary Next, 42 At the hearing, Sharp Dr. review the record reveals provided testimony during trial, substantial on the stage effects the second alcohol, methamphetamine, prosecutor adoption and canna- moved of the first bis, singly and in Additionally, stage objection combination. evidence without and Dr. Sauer, he related the Appel- father, witnesses’ accounts of Karl the murder victim’s was lant’s behavior6 at give the time of the offenses impact allowed to a victim statement. medically with the symptoms described mitigation sole evidence came serious, Armstrong going told that he was he would not have let them leave his any money, Verner’s house to "see if there house, or would have warned Verner. Arm- laughed which we kind of because we knew that strong stated that he knew there was no harm you money know—there was no or noth- there— intended; he knew and could not have ing Armstrong joking like that.” recalled Pelz seriously anyone. believed he would harm ought with him that "we bitch, to shoot the son of a get money but we can’t no out of him that preliminary hearing 6. The testimonies of Steve way.” Armstrong stated this was said in a manner; Armstrong laughing and Steve Verner were .also joking consid- that he was a Verner, thought they Sharp. friend of and if he had were ered Dr. *12 testimony Sharp’s would not have affected Sharp. Bill He testimony of Dr. from the report stage. stage from the the outcome of the first during second testified findings included that findings. Those of his ¶48 Next, Appellant offers the fol at first drink of alcohol Appellant took his lowing examples of trial counsel’s deficient as years and that he age old the of five or six stages: closing argument in both by the time he drinking every weekend was argue Appellant had no 1. Failure to that twenty- age of teenager. From the was a kill; intent to one, drinking daily a basis. Appellant was years, degree period argue twelve to fourteen second de- 2. Failure Over murder; six times. praved arrested for D.U.I. Appellant was mind ingest methamphet- Appellant began to Undermining Appellant’s defenses in- twenty-one and was soon age at amines Appellant’s not what stating he did know daily. jecting himself time of the mental condition was the crime, generally his brain was but that Appellant suffered Sharp testified 45 Dr. “shot;” argue by stating he didn’t “have to blackouts, clearly chemically was de- from you factor in his alcohol, about the intoxication amphetamines, and mari- pendent on generally was mind” because juana, so for the rest of his and would remain by stating Appellant product drugs; injec- that the three life. He also testified money; didn’t know what to “needed the methamphetamine Appellant took on tions of do:” day shootings resulted acute the near based on a amphetamine intoxication clarify or otherwise contra- 4. Failure to Sharp that
poisonous Dr. stated when dose. aggravator vert the avoid-arrest paranoia past happens, go individuals per- great risk of death to more than one very aggression and into a intense state of aggravator; and son suspicion. “their behavior is vio- He stated argu- 5. Failure to make substantive ’ walking they’re a time lent and in short against penalty beyond a ment the death bomb.” mercy. plea for consuming that whis- Sharp 46 Dr. added instances, previous- we have Regarding these injecting amphetamines can cause key and re- ly counsel’s decision to show found trial changes minute to the mood from one volatile Appellant’s part in credibility on morse and people causes explanation without next mercy plea stage and to for the first suffering effects to have an extra from these and valid trial stage to be a sound second He response or reflex. sensitive startle guess. will not second strategy which we having clinical characterized as argument Appellant’s 49 As to being guilty full of depression, borderline failing to seek counsel was ineffective remorse, having competent been and as gun discovery Mac-11 of Steve Verner’s expressed crime. He he committed the when night of the if it fired on the test it to see great hope Appellant’s rehabilitation. has offered no evidence shootings, Appellant stage Sharp’s find Dr. We him. exculpated On that would have substantially as his testimony the same to be shot the vic- contrary, Appellant admitted he hearing. testimony evidentiary Had at the prejudice, we will there is no tims. Where Sharp’s persuaded by Dr. testi- been Grady, performance. not find deficient intoxication mony Appellant’s acute ¶67, 8, P.2d at 1072. OK CR ability negated his to form would have he was not Appellant’s claim intox- to kill or that such acute specific intent testify reflex, or that trial adequately prepared to we his startle ication so sensitized of his purpose failed to match imposed the counsel would not have believe appropriate stage of trial testimony at a with penalty would have arrived death but evidentiary hearing. At was remanded for Compare Dennis v. “compromise” verdict. ¶83, 21, evidentiary hearing, trial counsel testified discussing preparing or not recall jury’s imposition of the sen- he did Considering the prepar- testimony or death, Appellant’s beforehand additionally find Dr. we tence n “I
ing him for cross-examination. He stated these witnesses would have testified to evi- spend games with with him— didn’t time dence of character much differ- ... trying to —so he could bob and weave person ent from the who was under the my prob- was the least of cross-examination alcohol-drags influence of an combination light stated trial strat- lems.” In of counsel’s suffering methamphet- from acute and/or testify egy to show to allow amine intoxication. remorsefulness, credibility no we find *13 ¶ 54 Trial counsel stated his decision preparation person can amount of make á mitigation not to use influ witnesses was preparation show remorse and too much 1) by beyond enced two factors his control: likely could cause the to find his testi- testify in Appellant’s refusal to the second mony not credible. Under these circum- 2) stage mother’s attitude in, stances, argument. no merit we find accept responsi which was“one of failure to n ¶ argues next bility for this.” Trial counsel testified at the ineffective, counsel was because he did not evidentiary hearing calling that he felt “a change despite high a venue seek word relatives, ancillary employees, bunch of co- publicity community feeling. Ap mouth employees, employer going or that were that, pellant thirty- *14 LILE, concurs. J.: aggra- previously, each of these As discussed supported by suffi- vating circumstances was LUMPKIN, specially concurs. V.P.J.: The trial court summarized cient evidence. eight mitigating evidence into factors CHAPEL, STRUBHAR, P.J., J.: jury as follows: submitted them to the part. in part/dissent in concur any signif- have 1. The Defendant did not STRUBHAR, in Presiding Judge: concurs history prior violent criminal icant part. in part/dissents activity; ¶ Judgment affirming 1 I in but concur capacity appreciate 2. The Defendant’s affirming in the of the Sentence. dissent criminality of his conduct impaired by requirements of law was ¶ Propositions 2 I find merit in three and alcohol; drugs and/or and remand to the six and would reverse hearing. influ- sentencing The Defendant was under the 3. trial court for new disturbance; of emotional ence Proposition three the al- 3 In circum- 4. The Defendant acted under leges that his trial counsel was ineffective to reduce the stances which tended severely prejudiced this ineffectiveness crime; agree. I Appellant’s defense. likely is to be rehabili- 5. The Defendant judge, alleged Proposi- 4 The trial as tated; six, jury’s ques- tion refused to answer age; The Defendant’s meaning imprison- concerning the of life tion character; and parole. 7. The Defendant’s I continue to believe ment without appropri- mandate an that this Court should emotional/family his- The Defendant’s jury question. to that ate answer tory. addition, may you decide that other LUMPKIN, Presiding Judge: Vice so, exist, if mitigating circumstances specially concurs: you those circumstances as should consider well. to affirm the agree 1 I with the decision separate- sentences but write judgments and ¶ Upon the record our review of claims of ineffective ly address further the weighing aggravating cir and careful Findings Fact In its of counsel. assistance evidence, we mitigating cumstances and the evidentiary of Law from the and Conclusions factually to be find the sentence of death grounds, the hearing Amendment on Sixth I, appropriate as to Count substantiated noted: District Court record degree murder. Based on the very difficult case to Court, jury Elliott had a say the Mr. this we cannot before represent a Elliott had to Mr. by passion, prejudice, any other handle. influenced or O.S.1991, gone to a residence who had contrary defendant arbitrary factor pistol, to col- 701.13(C), with a semi-automatic finding aggravating § armed that the - money. testimony drug/methamphetamine Sharp’s concerning any The Dr. lect .intoxi- supported voluntary the witnesses and heard their saw cation would not have testimony. The heard that Michael stage. intoxication defense in first Therefore back, in the was shot twice Sauer put Sharp Dr. counsel’s decision not to on the friend, defendant had shot Steve Ver- stage witness stand in first was a reasonable mouth, ner, young and had shot two upon professional decision based counsel’s whom, Lindsey Verner, girls. One of testi- judgment. you hope fied the defendant said “I die stage, 3 As for second counsel was left just prior shooting her in the bitch” with a defendant who had not shown head. As Mr. Elliott testified this was anot testify in remorse and would not “who done it” case. stage, and the defendant’s mother who re- reviewing 2 In a claim of as ineffective jected any responsibility. notion of Other counsel, sistance of counsel’s conduct is to be potential mitigating witnesses testified perspective from counsel’s at the evaluated evidentiary hearing inor sworn affidavits Washington, time of trial. Strickland Appellant did commit the crimes 2052, 2065, U.S. 104 S.Ct. charged Taylor they or that the Charles 674; Phillips v. L.Ed.2d knew would not have committed the. crimes ¶38, 124, 1017; 989 P.2d Le v. charged except for the fact that he was un- (Okl.Cr.1997), ’ drugs. der the influence of The decision not 2329, 141 U.S. evidence, put type the ab- (1998); McGregor v. *15 any testimony sence of from or his (Okl.Cr.1994), denied, cert. 516 U.S. mother, strategy. was reasoned trial As the (1995). S.Ct. present any state did not new evidence in the case, counsel’s defense was that stage, only put coúnsel’s decision to possess requisite did not malice afore Sharp Dr. on the witness stand and make the thought degree for murder because he jury only expert testimony that believe victim, any not did know the did not have appropriate in part that of the trial was a dealings with him and had no to kill reason plea mercy. reasonable Appellant’s him. This defense rested on credibility Any and lack of remorse. testi Considering all the circumstances of mony by Sharp Dr. toas level of case, 'this' counsel’s reasons at the time of intoxication was not relevant to this defense. trying trial for the case in the manner it was argument by The is made the defense that strategy done present was sound trial which differing intoxication, there are levels of ed as viable a defense as was available to suffered from a level of intoxi Appellant under the facts of the case and cation wherein he could remember the details making thus fulfilled the function of the ad only acting of the offense but he was out of testing process versarial other work. While responsible reflex should’not be held strategies might equal have been to or better support theory his conduct. While for this counsel, by than the one chosen that is may developing, be it is not the state not the issue. Counsel made reasoned voluntary law at this time. A defense choices at the time of trial. Those choices defendant, requires first, intoxication that a did not render the trial unfair and the verdict and, second, utterly be intoxicated be so in suspect rendered or unreliable. Lockhart v. toxicated, powers mental his are over Fretwell, 506 U.S. 113 S.Ct. come, rendering impossible it for a defendant 844, 122 (1993). specific special to form the criminal intent or mental element of the crime. Jackson CHAPEL, Judge, concurring part (Okl.Cr.1998), dissenting part: (1999). Here, affirming 1 I L.Ed.2d the evidence did concur in the conviction However, voluntary the defense of this case. I intoxi dissent decision light Appellant’s affirming cation. In detailed mem the sentence. There was never much, ory surrounding shooting, any, Taylor’s guilt. of the events if doubt about His jury persuade the only chance was something less than death. him to
sentence out, no chance because it turned he had
As lawyer him. His counsel failed to failed essentially opening an statement
make despite the present
failed to witness individuals on the
fact that several willing testify in present and
list were only
mitigation. In case where the reason- attempt to strategy was to convince
able life, jury Taylor’s heard spare
nothing evidence. This to offset State’s compounded the trial court’s
failure was jury’s question about
refusal answer parole.1 meaning life without The spare Taylor’s life
heard no reason he
understandably wanted to make sure I the street. would
would not be out on sentencing for a new hear-
remand the case
ing. APP 28
2000 OK CIV WILSON, Plaintiff/Appellee,
David R.
v. ex DEPART of Oklahoma rel.
STATE SAFETY,
MENT De OF PUBLIC
fendant/Appellant. 93,237.
No. Oklahoma, Appeals of
Court of Civil
Division No. 28,
Dec.
980,
consistently
stated that the
should
1. I have
431,
(1996)
J.,
meaning
pa
(Chapel,
special
life without
be informed of the
41,
See,
State,
e.g.,
CR
Ochoa v.
1998 OK
role.
concurring); McGregor,
n.
ly