Wallace v. State

requiring timely Appellant’s brief-in- issues reversal ei- manner no other raised cumulatively. App. The im- chief. Ch. separately or See ther stage Appeals, Rule properly evidence second Rules Court Criminal admitted of of 3.4(F)(2). However, this remanded there is no Court was harmless. Where proposi- Appellant’s pursuant Cooper case v. Okla- is cumulative error.85 This there no — homa, -, is denied. tion

L.Ed.2d 498 to determine if a retro- held; competency hearing spective could be MANDATORY SENTENCE REVIEW and, so, hearing using if to hold such O.S.1991, with 21 accordance constitutionally proof. correct burden of 701.13(C), § we must determine whether held; Such a was and this Court’s imposed the sentence of death was under the scope of action consistent course is with passion, prejudice, any other influence of or 3.11(A). authority set out in Rule our factor, arbitrary whether the evi Third, agree I do not with the Court’s supports jury’s finding aggrava dence Proposition Supplemental discussion of V. ting Upon circumstances. review of the rec State, decision in v. The Court’s Jackson ord, say cannot of death was sentence (Okl.Cr.1991), applicable P.2d 614 is not jury imposed because the was influenced presented purpose the situation here. The passion, prejudice, arbitrary other discovery provide opposing party is to 701.13(C). O.S.1991, contrary factor to 21 may matters which be used at trial and to jury was instructed on and found the party put on ensure the notice its exis- aggravating existence of two circumstances: was tence. That done this case. The trial Bryan previously convicted of a felo- judge ruling. made the correct violence, ny involving the use or threat of (2) probably commit criminal acts would continuing of violence that would constitute a society. Upon

threat our review of the record, we find sentence of death be

factually appropriate. substantiated and modification,

Finding warranting no error judgment and sentence of the District George WALLACE, Petitioner, Kent County Court of Beckham AFFIRMED. v. LUMPKIN, J., concurs results. Oklahoma, Respondent. The STATE of STRUBHAR, V.P.J., LANE and No. PC-95-1246. JOHNSON, JJ., concur. Appeals Court Criminal Oklahoma. LUMPKIN, Judge, concurs in result. March 1997. agree I with the results reached in the opinion. separately I write on three matters.

First, again urge I once this Court adopt approach reviewing a unified when dealing sufficiency

claims with the evidence. v. See White (Okl.Cr.1995) J., (Lumpkin, Specially 993-995 Concurring).

Second, separately why explain write addressing supplemental proposi- we are Ordinarily, tion. this Court will not address propositions presented which are not in a McGregor 885 P.2d at 1385. Bauman,

Randy Chief, Deputy A. Division Conviction, Capital Indigent Post Oklahoma Norman, System, Defense for Petitioner. ORDER DENYING POST-CONVICTION RELIEF, REQUEST DENYING FOR EVIDENTIARY AND HEARING DIS- COVERY, REQUEST AND DENYING FOR EXTENSION OF TIME TO AMEND LUMPKIN, Judge: George through Kent Wallace counsel filed a “Revised Relief, Application Initial for Post-Conviction Amend, Request for Extension of Time to Wallace; Evidentiary Discovery tence Mr. extent issues Request for guilty plea appeal Hearing.” presented Petitioner entered a direct were deemed Murder, Degree, First application to two counts issues in waived or are County in Cases barred, Court of LeFlore District previous deemed waived counsel and CRF-91-2. Petitioner No. CRF-91-1 them, preserving for not was ineffective appeal; to direct and on waived his Sixth, Eighth violation of the and Four- mandatory sentence this Court af- teenth Amendments the United States judgments each firmed the and sentences Constitution; the trial court violated United case. was denied Certiorari federal and Mr. Wallace’s state constitution- Court. Wallace v. States rights apply al when declined to rule cert, — (Okl.Cr.), denied, P.2d 504 law, case, criminal decided to him. -, 133 L.Ed.2d 160 filing Application Before for Post-Convic- I. Relief, for dis- tion Petitioner filed a motion denied, holding covery, this which Court presented also preliminary Petitioner has jurisdiction grant had no at that time capital post-convic complaint, that new State, discovery in his case. 910 Wallace v. applied, its regime, tion on face and as denies (Okl.Cr.1996). then P.2d 1084 Petitioner adequate equal both and access to the courts Application for Re- filed an Post-Conviction deprives process, Petitioner of due and all 3, 19, lief on 1996. This Court on June June Sixth, Eighth, violation of the and Four unpublished granting an issued order to the teenth amendments United States comply time to Rules of additional with the Constitution, Ex Post-Facto of Clause Court, argument this as the and authorities document, provisions and that similar of the application pages. his 50 section of exceeded Oklahoma Constitution. We addressed this Appeals, See Rules the Court Criminal State, (Okl.Cr. v. 924 of of issue Hatch P.2d 284 9.7(A)(4), O.S.Supp.1996, App. 18 Rule Ch. 1996), no merit to it. and found We need not Application filed his revised Petitioner again. address it 9,1996. July Application, In revised his Petitioner II. (1) eight grounds presented for relief: proposition, first For his Petitioner appointed counsel suffered from conflicts complains court-appointed counsel suf Sixth, impermissible of interest under impermissible fered from an conflict of in Eighth to the and Fourteenth Amendments pre admits this claim is terest. Petitioner pro- United States Constitution and similar post-conviction first time in sented for the (2) Constitution; in- the Oklahoma visions of proceedings. The amended version of Sec assistance of effective trial counsel and/or very specific scope of tion 1089 is exculpatory failure of State disclose post-conviction be claims which can raised information, combined with inaccurate infor- application: by officials, deprived provided state mation mitigating evi- Mr. Wallace’s sentencer of only may issues that be C. The raised to an accurate of dence vital determination for application an relief are sentence; trial counsel’s to inves- failure those that: tigate Mr. Wallace’s death wish and counsel not and could not have 1. Were been against him death constituted ineffective as- appeal; direct raised in a sistance; of deprived Mr. Wallace was Support conclusion either that the expert to the Ake which he was entitled the trial would have outcome of been Sixth, Four- Eighth, violation for different but the errors or that the Amendments to States teenth the United factually is innocent. defendant Constitution; determina- 1089(C). It constitutionally O.S.Supp.1995, is well tion in Mr. Wallace’s case statutory Eighth established rule construction under the and Fourteenth defective Amendments; according are be construed the trial court lacked sub- statutes jurisdiction ordinary meaning ject plain and sen- of their lan matter to convict O.S.1991, § Virgin exculpatory 1. See also v. Petitioner also claims guage. 25 (OH.Cr.1990); available, State, evidence was but not turned over 792 P.2d (Okl.Cr this, to him or trial v. P.2d counsel. he Parker .1967). report Kenny “A must be held to mean what cites “the of the interview with statute plainly expresses and no room is left for and the information still retained Williams interpretation where the Sheriff Grimes.” Brief at 22-23. Petitioner construction language employed unambigu supplemental clear and not cite to the record or does 274 materials where this information is con ous.” Abshire (Okl.Cr.1976). conjunctive provides examples. no other Ac The use tained. He cordingly, parts portion “and” the two of this subsec he has waived this of his between present portions tion indicate both must be claim for review. See Rules the Court Appeals, 9.7(A)(3)(g), can a claim. before this Court review Criminal Rule App.2 Ch. 18 judice, In the case sub was af- Accordingly, proposition this is likewise opportunity pursue a forded an direct waived. appeal; specifically he declined to do so.

Wallace, result, 893 P.2d at 509-10.1 As a he IV. decision; is bound that earlier as a conse- decision, quence of that he has forfeited his proposition, For his third right to have this Court consider the issue ineffective, again trial claims counsel was conflict, alleged his trial counsel’s failing investigate time for his death wish readily would have been available for that him against desiring and to counsel the death appeal. Accordingly, direct Petitioner’s first This, too, waived, penalty. is as it could have proposition is waived. presented 22 appeal. been on a direct

1089(C). §

O.S.Supp.1995,

III. V. proposition, In his second Petitioner proposition, For his fourth Petitioner counsel, claims trial ineffective combined deprived expert psychia- claims he was of an prosecution with of failure to disclose trist to which he was entitled under Ake v. exculpatory information and inaccurate infor Oklahoma, 68, 1087, 470 U.S. 105 S.Ct. 84 officials, provided by deprived mation State (1985). L.Ed.2d 53 He admits this claim has mitigating him of vital evidence to the court’s consequence, not been raised before. it As vein, determination of his sentence. this waived, presented as it could have been on ample Petitioner first claims there was evi appeal. O.S.Supp.1995, direct 22 mitigation dence in which trial counsel did 1089(C). find, not because he did not seek it. This Further, argument presented could have been on a arewe confused Petitioner’s direct seemingly contradictory argument. which Petitioner waived. This At one portion point transcript is therefore waived for review here. he cites to a made before 1089(C). O.S.Supp.1995, § judgment Waived on the passed sup- and sentence was as grounds same port request is Petitioner’s claim his waiver for claim that an Ake was presentation made, mitigating of admitting evidence while at the same time knowing, intelligent was voluntary. language not in the record to which he cites as mandatory Appendix 1. This Court conducted a sentence look for citations. Materials in reviewed, 2 were required by review as Grasso v. properly as were all documents before (Okl.Cr.1993). Still, this Court. this Court is under no obli- gation to review the entire record to find materi- gave 2. This Court Petitioner time to file a new als; important enough if Petitioner deemed them Application argument and authorities sec- incorporate Application, into his he should comply tion to with this rules. Court’s Petitioner important enough spe- deem them to warrant a so, submitting application. did a revised It is reference; cific a “kitchen sink” reference is not section, argument authority this revised sufficient. See Rules the Court Criminal (but not) supple- which should does refer to his 3.5, Appeals, O.S.Supp.1996, App. Rule Ch. 18 Appendix mental materials in (Okl.Cr.1995). authority was than “less ideal.”3 He then 889 P.2d 293 alleges the claim “relies on extra-record evi- Court of the United States reversed that dence,” at telling brief while not case, holding process a due violation occurred Court what that evidence is. He therefore appellant when an required prove adequately has failed to show this Court that convincing clear and evidence he was not request such a was even made under Ake. competent Cooper to stand trial. v. Okla Rules Appeals, See the Court Criminal — homa, -, 9.7(A)(3)(g), Rule Ch. 18 L.Ed.2d 498 App. proposition

This Again, likewise waived. we find we cannot address this (C)(1) proposition. Subsection of Section

VI. specifically only states the issues which post-conviction can be raised on relief proposition For his fifth are Pe those which alleges were not and titioner he was could not have determined be com petent appeal. an been raised on direct under unconstitutional standard. proposition appeal; This Court addressed this raised this claim on according of er direct mandatory ror in ly, judicata, Petitioner’s sentence it is re res and we cannot address it view, finding Cooper it invalid under again.4 “However, interpret request concerned, at Brief 28. To counsel’s so far as the State is expert totally context an Ake “less want the record to than be clean in so far as acknowledge ideal” is an understatement. We we're concerned in that I do understand the position creativity having proceed Court’s attempting counsel's with the However, hole; competency part square peg proceeding. of this to make this fit into a round however, position equivocation is the State’s without compelled we feel to note for the rec- that, competent context, this defendant is to stand trial for simply request- ord counsel was charges." these That sets the tone of the entire ing that someone other than a mental health record which followed. competency technician conduct a examination. 4, 1991, Februaiy At the argument, We need not address that either: an- himself called the mental health technician who other evaluation was conducted la- conducted the examination. When asked if she ter, by type person requested the counsel at “sure, could be to a reasonable scientific certain- Therefore, hearing. the first even were it not trial,” ty, competent that Mr. Wallace is to stand waived, by it would have been rendered moot the she answered in the affirmative. When asked if subsequent district court's actions. "sure," again replied “yes.” she was she When by prosecutor, cross-examined the she said she legal

4. But even if the basis for the claim were nothing found to indicate Petitioner did not un- judicata, grant not we res could not Petitioner charges, derstand the nature of or could not relief, competency as his to stand trial was never attorney. your assist his When asked: "And factually controverted. In Petitioner’s mandato- mind, any own there was not doubt that that ry sentence we remarked that there was competent] [Petitioner conclusion was is the any question competency,” “never real of his conclusion,” replied she "no doubt.” Peti- Wallace, Rather, 893 P.2d at 516. we deter- attempt question tioner made no ings. these find- precautions mined “the court took extra to en- guilty plea Appellant sure that the had an- hearing investigator After an from who talked going nounced he was to enter could withstand Petitioner, overruling with and then defense scrutiny accompanies capital the intense that all request by counsel's that Petitioner be examined cases.” Id. We also added "[u]nder that what- psychiatrist psychologist a board certified at by ever standard which this Court would choose Hospital, Eastern State the court made the fol- him, competen- to evaluate the evidence—in both lowing observation: cy hearings, during guilty plea and sentenc- again, following says "And I'm the statute. It ing unequivocally Appellant was com- —showed jury that —and this is 1175.5. The or the petent, understanding a he had rational of the Court, be, may as the case shall answer the charges against nature of the him and was able following questions determining disposi- the attorney to consult with his with a reasonable person competency tion of the whose is in degree understanding." of rational Id. question, [questions]. no, says It if the answer is supported by Such an observation is the rec- proceedings criminal shall be resumed. 30, 1991, January hearing, ord. In the heard, defense And based on the evidence I've based requested hearing stating Glaseo, counsel he "har- report my on the filed Mrs. answer my is, no, bor[ed] some doubts as to whether or question person not to that is not incom- truly gravity (2-4 28-29). client understands the petent_" of this situa- Tr. This, prosecutor alone, application tion." The standing observed the does not Petition- statutes, applicable argument; conformed with but added: er's and that which follows weakens line; he also state the Arkansas-Oklahoma VII. correctly, though not even alleges, proposition of In Ms sixth subject issues of raised on direct court lacked sub the trial claims Petitioner jurisdiction never waived and can matter are and sen jurisdiction to convict ject matter appeal. on a collateral therefore be raised correctly, that both alleges, him. He tence (Okl. 1137, 1145 very near Johnson charged committed were crimes any any make rul- hearing hear evidence and the Court argument even more. The Me particular stage ings necessary of the question his on this proved did not Petitioner followed (3-11 3). attempt advance competency, proceedings. no Tr. and made himself, incompetent. questioned who he was evidence to show The court being would eventual- attorney's told that Petitioner correct. After observations were stated his (3-11 observing guilty' charges 3-4). ly plead prosecution questioned to the After the Tr. penalty, Russell, death the court could receive the he evalua- who conducted the Dr. Jeanne he felt stated competent, defense tion and found complete psychological compelled order a following statement when counsel made the I am aware that of this Defendant. evaluation asked if he wished cross-examine: outpatient competency an basis on moment, May I have a Your Honor. Your this case and that he has been was held in Wallace, Honor, conferred with Mr. I've competent to be technician found competence. Russell has established Dr. Center, Health but due to Carl Albert Mental hearing, we never at our last have As I stated plea possible consequences and of the point. thought at this So that was an issue proving on their Bill of Par- State’s their case Wallace, conferring I have no with Mr. after ticulars, humanly can as I I need to be certain (3-11 11). questions the doctor. Tr. competence to be certain as to this man's this, gather only one this Court can From says any that the proceed further. The statute competency never Petitioner's was conclusion: may proceeding its own institute this Court Rather, really the court ordered the in doubt. motion, doing time. I am that at this an proceedings in each instance to be held out of compe- saying that I doubt this man’s I am not Further, caution. as Petition- overabundance of compe- you doubt someone’s tence. Before can hearing, attorney made clear in the second er’s you them and have been tence have to know thought compe- [Petitioner's defense "never time I have ever around them. This is the first tency] an issue." Given that Petitioner nev- saying not seen Mr. Wallace. So I don't —I’m issue, competency seriously as an er asserted competence, but what I am that I doubt his findings question in the in fact did not saying be sure as I can be before I is that I must safely say proceeding, we can that he second (2-21 proceed proceedings. with these Tr. can 4). any attempt presump- never made rebut standard, competency under constitu- tion of a short time The court reiterated its concerns 16-18 tional or otherwise. See also 3-11 Tr. later when he said: (where may placed appears the trial court have record, "Again, to be for the I want the record prosecution, not on Petition- the burden on doing this for perfectly clear about this. I am Therefore, er). placed Petitioner was never purpose we can be as as certain as being required improp- position to meet an pro- to this before Defendant’s case, proof. That the whether er burden of being that his ceed further. The reason might required have been to rebut the Petitioner today approval attorney with his has announced by presumption and clear con- changing plea on from not that he intends vincing merely by preponderance evidence or a matters, guilty guilty two that in each in these issue, any perceived of the evidence is not an a Bill of case the State has filed Particulars beyond process be harmless a due error would they proof that if are able to meet their burden California, Chapman that, reasonable doubt. See v. allege they that he these items that in on 18, 24, 824, 828, 17 L.Ed.2d 386 U.S. 87 S.Ct. doing penalty. am could receive the death And I (1967); California, 491 705 see also Carella v. precaution, this out of an abundance of an overa- 2419, 2421, 263, 266, perhaps, S.Ct. 105 L.Ed.2d precaution, U.S. 109 bundance of but feel (2-21 (1989) containing (jury an erro- something Tr. instruction that should be done.” it’s Illinois, 8-9). presumption); Pope v. neous conclusive 501-504, 1918, itself, 497, beginning 1921- the the court 481 U.S. At the 1923, (1987) (jury report instruction the 95 L.Ed.2d 439 asked either side if it took issue with offense); replied misstating v. finding competent. an Rose Each side element 570, 3101, Clark, S.Ct. 92 L.Ed.2d had discussed the 478 U.S. he did not. When asked if he client, (1986) containing (jury report instruction an erro- with his defense counsel stated: Evans, Honor, presumption); Hopper v. discussed with Mr. Wal- neous rebuttable Your I have 2049, 605, only report S.Ct. 72 L.Ed.2d 367 456 U.S. (1982) lace not the contents of (statute improperly forbidding opportunity trial also the fact he’s had an jury by giving a lesser in- juncture a trial court's instruction on that at this he is entitled to capital question case in violation of the jury he desires. He's indicat- cluded offense in on this if Clause). that, and have Due Process ed to me that he desires to waive Cr.1980), denied, 1132, Oklahoma, not, cert. 101 in we will on interfere 67 L.Ed.2d 120 verdict,” S.Ct. He now citing with the Renfro Arkansas, alleges the crimes in occurred (Okl.Cr.1980). 607 P.2d 703 (1) claiming disputed the border location is think We the same applies rationale here. by surveyors; local officials and authori that, The evidence shows although Arkansas responded ties from both states to the crime initially began authorities working the homi- scene; body in at least one case was cides, they investigation turned the over to dragged away from the Arkansas side of the Oklahoma authorities. This indicates a border; very the bodies were near the knowledge by both Arkansas and Oklahoma border; police determination that authorities that the homicides in occurred the crimes were in committed Oklahoma was Oklahoma. apparently upon based where the bodies found, were Additionally, evidence, not where the fatal wounds were Petitioner’s own requests inflicted. Petitioner additional dis submitted as exhibits in of the affida- covery, expects after which he to establish evidentiary vit for an hearing, indicates both that one or both of these homicides occurred homicides occurred in Oklahoma. Petitioner in Arkansas. provided Based the record told authorities he took Domer to the far counsel, by disagree. Petitioner’s right-hand cemetery. corner of the He indi- driving cated he was down Texas Road. An initially We note the absence of eases deal- maps, examination of photographs aerial ing subject. with this We have been unable diagrams provided by Petitioner shows dealing find cases with which state angles Texas Road from the northeast sovereignty should exercise over a homicide (Ex- Arkansas the southwest in Oklahoma boundary committed in an area where the 5B, 18). hibits 5A App. & Ex. When between in question. states is This Court taking route, (to right-hand the far side has never dealt with directly. the issue driver) would be the southwest corner of However, in Howe v. or, cemetery; if facing the driver were (Okl.Cr.1983), we addressed the issue raised east, the corner would be the southeast cor- when the location of the murder itself was case, ner. In either it would not be the questioned. case, appellant In that was corner, northeast the corner Petitioner convicted County, of murder Cleveland claims the death occurred in and the corner Oklahoma. The victim was last seen alive he claims lies in Arkansas. This leaving Dallas, Texas, evidence lounge early in the indicates the land was Oklahoma. morning body hours of June 1981. The City was found in an Oklahoma field June 19. discounting analysis, But even the evi- appellant apprehended in Tulsa dence still shows the homicides occurred in 25, driving June the victim’s automobile. Oklahoma. detailing The materials the bor- Evidence the car linked it to the homicide. provided by der in support of his Appellant, employee a former of the Texas evidentiary hearing affidavit for an state that victim, lounge owned was fired boundary western “[t]he of Arkansas shall victim several months before the homicide. be, same, defined, hereby and the Aviz: they Two witnesses testified had heard the run, River, commencing line shall be on Red appellant life; threaten the victim’s another point at the where the Eastern Choctaw line fired, day testified that on the he was the river, strikes said and run due north with appellant assaulted the victim. On Arkansas; said line to the river thence in a appellant the contended the evidence was direct line to the South West corner of Mis- jurisdiction insufficient to establish that of (Exh. 23). souri.” the offense rested in an Oklahoma court. important This becomes when viewed in O.S.1981, 121, This Court cited which relationship disputed areas of the bound- jurisdiction places in the state wherein the ary: offense is consummated. We held that “as (1) competent, circumstantial, there was boundary albeit On the Arkansas side of the jury occurred, evidence from which the could near conclude where the homicides the charged that the offense was consummated Township area is labeled as 7 North. homicides, (2) property the ied and collected real taxes of the site of North tract; begins. disputed The distance and that Le Township 8 North within the begin- County, site of the homicides the has lev- from the Flore OHahoma never just one Township 8 North is over ning disputed of taxes within ied collected the mile. tract. (3) (comprising Townships 8 and 9 North added). (emphasis Id. Smith) subject the of a bound Forth were (6) 5(A), by Appendix submitted Petition- and Arkan ary dispute Oklahoma between er, depicting Fort map is a the South Arkansas, 610, 473 U.S. Oklahoma v. sas. Quadrangle. map, con- Smith The 3519, 3520, 87 L.Ed.2d [610-11] S.Ct. homicides, tains the site of both was edited (1985).5 years Supreme two after the (4) legal read the de- The Court in the bound- Court rendered its decision boundary setting scription the west- the ary dispute. topographic map, pro- The boundary of Arkansas as follows: ern by Geological the Sur- duced United States boundary of Arkansas shall The Western vey, “complies national states that with is, defined, be, hereby and the same viz: map accuracy standards.” run, commencing on Red A line shall be continuous, map unbro- This shows River, point at the where the Eastern boundary up to ken and uncurved clear the River, run line strikes said Choctaw River, just Arkansas west of Fort Smith. due North with said line to the River boundary pond The does intersect the Arkansas, thence a direct line to the found; only where the were but bodies South West comer of Missouri. portion pond far lies in easternmost 610-11,

Id. at 105 S.Ct. at 3520. This is Arkansas.6 description given the same in the Arkansas boundary This is also illustrated ae- Constitution, provided in the materials photographs provided by rial Petitioner as by Congress gave Petitioner. In Ar- 5(B). Appendix photographs The aerial authority kansas to extend the line west- reflect that a trail runs from the Leard 611-612, ward. Id. at at 3520. S.Ct. Cemetery pond. south to the This is the provided by theAs materials by place trail described Petitioner as the state, change “[t]his added about one-fifth he killed Domer. It lies well within the square of a mile to the area of Arkansas.” boundary. OHahoma side of the (Exh. 23). disputed tract became “[T]he by part of the of Arkansas in 1905 State murder, describing McLaughlin joint Congress action of the of the Petitioner told authorities he drove Arkansas, United and the States State pond, side of the the opposite south side day.” and remains so to this Id. at from shot Domer. He told au- where he 105 S.Ct. at 3521. pulled thorities he off on a side road which opinion The also states: along edge pond. ran the south parties stipulated photo- that the State This road is shown the aerial graphs, depicted topographi- Arkansas has exercised continuous sov- and is dominion, control, ereignty, map. pulled cal He told and exclu- authorities he road, jurisdiction halfway sive criminal and over about down he civil where disputed stopped, spanked McLaughlin, tract since the enactment took him car, Legislature approximately Act No. him the Arkansas out and shot II 1905; February that Sebastian 15 feet from the car. Both these exhibits Arkansas, County, continuously place lev- the road described Petitioner en- provide depressed can Petitioner failed to this Court with this one see a area on the Arkansas case. side which indicates where the surface of the corresponds water used extend. The outline topographical map, shape 6. On the very closely shape pond to the shown on (the side) pond appears at the east end Arkansas map. photo- It seems obvious the aerial shape pond different from the in the aerial graphs pond were taken when the level was low. However, photographs. inspection, on closer Walker, tirely petitioner factually in Oklahoma. Even if Petitioner was innocent.7 mistaken, pulled down the road more doing, P.2d at 333-34. In so we continue to halfway, map than and the both aerial principle proving observe attorney that photographs indicate he would not have task, easy ineffectiveness is no and the bur- Arkansas; rather, been he would have petitioner den is on the to set forth sufficient been in Oklahoma. facts and law to fully enable this Court to appellate allegedly assess amply provides This evidence counsel’s deficient sufficient facts performance. from which Id. factfinder could conclude Oklahoma, that the murders occurred in prong We find the first Appellate met. border, not in disputed Arkansas. The less counsel failed to raise the claim on direct scene, than two miles north of the homicide appeal. We now turn to the second claim. blends with the border near the homicide Here, Walker, as Petitioner makes a smooth, unbroken, in a scenes unbent line. allegation bald that counsel failed to raise this, given Given that Petitioner’s sub- claim, what he considers a imply- meritorious topographical map showing mitted ing this is sufficient to appellate show coun- boundary between the two states was edited performance However, sel’s was deficient. years two after the Court rendered we noted in Walker that under the new decision, its we find the murders occurred statute, more is capi- needed. We held that Oklahoma and not in Arkansas. Petitioner post-conviction petitioners tal must devote showing failed to make the threshold greater much time and 9.7(D)(5) attention to what required by Rule to warrant an why counsel did or did not do and counsel’s evidentiary hearing on this issue. See also 1089(D)(5). perfor- acts omissions constituted deficient According- Furthermore, mance. Id. ly, at 333-34. proposition we Petitioner’s sixth of error is conclusory allegation observed the mere that without merit. appellate arguably counsel failed to raise an VIII. claim, alone, meritorious standing will never For proposition support finding his seventh of er a attorney’s perfor- that an ror, appellate Petitioner claims counsel was mance was deficient. Id. at 336-37. failing

ineffective for to raise issues we have Here, Petitioner has failed to deemed are waived under the revised Section claim allega- with facts other than the mere 1089. This Court in Walker v. appellate tion his counsel failed to raise the (Okl.Cr.1997) recently P.2d 327 interpreted claim. This is insufficient. 1089(D)(4) O.S.Supp.1995, § in arriving at aspect There is also another in connection a standard to appellate determine whether obliged with this case we feel to address. counsel was ineffective. Under that stan redundant, At the risk of dard, we must petitioner prove must first again note that Petitioner waived his direct appellate actually counsel committed the act appeal. appeared quite emphatic He about gives rise to the claim of ineffective that, maintaining that desire even after this appellate so, counsel. If we find counsel did Court remanded his case to the district court performance we then ask whether such amake determination on the issue. was deficient Wal- prong under the first of Strick lace, Washington, land v. 893 P.2d at 509. As a result of that 466 U.S. decision, irrevocable this Court L.Ed.2d 674 If we find conducted attorney’s deficient, mandatory Therefore, performance only. sentence review that, guarantee then appel- ask whether there is no even had the claim meets the prerequisite capital second late counsel raised the issues now review, i.e., raises, supports they whether it a claim this ei Court would have found ther that the properly mandatory outcome of the trial would have came under sentence been different but for the errors or that the review. Walker, post-conviction application. This writer continues to maintain that in a See J., (Lumpkin, concurring standard is an incorrect standard to use in re- P.2d at 341-42 in re- sult). However, viewing appellate yield a claim of ineffective counsel to stare decisis. scheme, reasons, capital sentencing un- this claim is without dence

For these derstands such evidence could be used to merit. aggravating prov-

offset the circumstances prosecution of the en IX. penalty, failing death and the to effect eighth proposition and last For his present that evidence. Petitioner claims this Court violated (6) being After assured defendant law, rights by declining apply to a rule of his concepts, understands these the court case, opinion to him. In the decided in his inquire must of the he defendant whether mandatory on Petitioner’s sentence right present or she desires to waive the to rules to be followed this Court established mitigating such evidence. a defendant wishes to those instances where (7) Finally, the court find- should make mitigating right present waive his to evi ings pursuant of fact to Grasso of the Quoting dence. from Grasso understanding defendant’s and waiver of (Okl.Cr.1993), we said the trial P.2d rights. forego court allow a defendant to a state will Id. at 512-13. This Court Petitioner’s appeal “only judicially if has he been deter ease made the basic determination Petitioner capacity mined to have the to understand the capacity had to understand the choice choice between life and death and to know knowingly between life and death and to and ingly intelligently and waive and all intelligently rights present all to waive miti- Wallace, rights appeal to his sentence.” gating evidence. Petitioner knew what miti- P.2d at 512. We said was the “basic was, gating attorney evidence as his dis- determining standard” we would use cussed it with him. He likewise knew he had right whether a defendant could waive his to right present mitigating evidence. Pe- present mitigating Id. evidence. cooperate titioner refused to with his attor- end, Toward that the court must ensure ney presentation mitigating in the evi- understanding the defendant has an of his dence; indeed, Petitioner would not even let rights plea process or her both in the and attorney prosecution his cross-examine wit- sentencing process: in the during sentencing hearing. nesses The (1) The court must inform the defendant competen- trial court ordered more than one evidence, present mitigating of the cy hearing before satisfied Petitioner mitigating and what evidence is. doing, knew what he was and even ordered a pre-sentence investigation attempt in an inquire The court must both of the (if se) obtain all the evidence attorney pro defendant and he could before sen- not tencing Petitioner to death. whether he or she understands these rights. short, although the trial court did not specifically requirements inquire court follow each of the should also case, attorney we set forth in Petitioner’s attempted if he or she there was question substantially little the court com- determine from the defendant whether plied guidelines with these enumerated there exists evidence which could be made the basic un- mitigate aggravating used to determination Petitioner circum- evidence, proven beyond mitigating derstood the nature of stances a reasonable doubt prosecution. understood the choice between life death, knowingly intelligently given, If such information has been rights mitigating waived all present attorney must advise the court what evidence. is; mitigating if evidence the defen- cooperate, attorney dant has refused Accordingly, eighth proposi- Petitioner’s must relate that to the court. tion has no merit. inquire The trial court must of a X.

defendant and make a determination on the record whether the defendant under- We next address Petitioner’s motions for importance mitigating discovery. discovery” stands the evi- He claims “broad

377 O.S.Supp.1995, requests, request 22 for of those his for sis provided for 1089(D)(3). allegation discovery § this is denied. We addressed Hatch, P.2d at where we held authority not the to “this Court does have XI. general discovery requests absent a grant request included a for an also showing request is related to an issue the evidentiary hearing, following to be held not have been raised within the which could discovery, completion opportunity for Id. at 295. scope of Section 1089.” Application.8 final amendment of his He in Hatch also addressed We evidentiary hearing necessary claims an request Petitioner raises here same the extent contentions are in factual Brady proposition of that a second doubt. Hatch, here, as violation occurred. applied The same rationale we petitioner generally this in his ar discussed X, above, Hatch, applies discovery. section and in also gument scope as We scope here. If a claim is not within the found it to be merit. Id. at 296. without there, capable reviewing Here, pro issues this Court is un as Petitioner has failed to 1089(C), O.S.Supp.1995, § specifically alleging any der this Court duce an affidavit rea authority hearing a Ac is without order son to believe such a violation occurred. Hatch, Having issue. determined this Court has no cordingly, for the same reasons as issue, authority hearing a request to order on the we is denied. unnecessary find it to rule whether Petition discovery Petitioner also seeks alleged er sufficient facts to meet the claim, first that his trial attor related requirement hearing for threshold such ney Again, had a conflict of interest. we 9.7(D)(5). Accordingly, under Rule Petition specifically must observe Petitioner waived request evidentiary hearing er’s for an on his appeal. his direct Several items Petitioner First, Second, Third, Fourth, Sixth, and now seeks relate to issues which could have Eighth Propositions is denied. which, appeal been raised on direct but Concerning Proposi- Petitioner’s Seventh wishes, Petitioner’s own were not. Since the tion, during mandatory sen- that his counsel proper part issue itself would not be ineffective, tence review was we have deter- post-conviction proceeding, O.S.Supp.1995, mined the issue to be without merit based on 1089(C), Berget, P.2d at see also Consequently, us. no the record before discovery is not a as relates those issues hearing on this issue. is needed proper consideration. matter for this Court’s 1089(D)(4) §§ & Legislature enacting We find the new Proposition, Fifth same is true Petitioner’s not version of Section 1089 did intend to that an unconstitutional standard was used to discovery allow for an issue which this Court competency. determine his considering. Accordingly, precluded from deny request discovery Petitioner’s for proposition. it relates to his first XII. requested also this Court to au- above, given For reasons Petitioner’s interrogatories in connection with

thorize Application for Relief is DE- Post-Conviction above, given claims. For the reasons these above, given NIED. Also for the reasons too, request, is denied. discovery requests for further Petitioner’s evidentiary Having gen- no and an are DENIED. concluded there is discovery Legislative approval; request Petitioner’s for leave to amend his eral absent us, properly and is having specific Application all of Petitioner’s is not before reviewed discovery having hereby requests; and found no ba- DENIED. supplemental request prohibits

8. We not address the for a final amendments or need Application, filing as that issue is required amendment of his materials after the time for would, however, not before us. We call Petition- Application. 1089(D)(2), O.S.Supp.1995, § er’s attention to PROCEEDING ON AN ap- AN ORIGINAL statute dictates the strict plication principle. of that APPLICATION FOR POST- RELIEF CONVICTION WALLACE, Petitioner,

GEORGE KENT presents Application to this Court an for

Post-Conviction relief. Petitioner entered a

plea guilty to two counts of Murder in the Degree

First the District Court of Le- County, Flore Case Nos. CRF-91-1 and Following hearing on sentenc Dudley CRF-91-2. POWELL, Petitioner, Allen ing, Petitioner was sentenced to death on each count. As Petitioner waived his Oklahoma,

a direct as he did not Respondent. follow STATE of proper procedure seeking to withdraw his PC-96-1265. plea, mandatory Court conducted sen judgments tence review and affirmed the Appeals Court of Criminal of Oklahoma. sentences of the district court. Certiorari March 1997. was denied Court of the United States. Wallace v. — (Okl.Cr.), denied, U.S.-, cert. (1995).

S.Ct. L.Ed.2d Relief denied.

CHAPEL, P.J., JOHNSON, J., concur.

Strubhar, Y.P.J., LANE, J., concur in result.

CHAPEL, Presiding Judge, concurring: denying concur the Court’s decision Application. Wallace’s Traditionally in Okla- homa, a defendant

has received the benefit of intervening

changes in post-convic- the law. The revised changed tion general statute rule.9 Moreover, recently this Court has deter- mined that the appropriate issue stan-

dard for determination of under

Cooper v. Oklahoma10 is not a new rule of procedural

constitutional law.11 Therefore may apply bars post- to these claims on eonviction. Our resolution of Prop- Wallace’s acutely

osition V illustrates the harsh result may occur principle when the of finali- ty However, judgment applied. our new 1089(D)(9)(a) (b).

9. 22 (1997). & 11. Walker v. 933 P.2d. 339—41 -, - 134 L.Ed.2d

Case Details

Case Name: Wallace v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Mar 18, 1997

Citation: 935 P.2d 366

Docket Number: PC-95-1246

Court Abbreviation: Okla. Crim. App.