205 P.3d 1 (Okla.Crim.App. 2009), D-2006-14, Grant v. State

Docket Nº:D-2006-14.
Citation:205 P.3d 1, 2009 OK CR 11
Opinion Judge:C. JOHNSON, Presiding Judge.
Party Name:Donald Anthony GRANT, Appellant v. STATE of Oklahoma, Appellee.
Attorney:Mark Barrett, Perry Hudson, Attorneys at Law, Norman, OK, attorneys for defendant at trial., Sandra Elliott, Suzanne Lister, Assistant District Attorneys, Oklahoma City, OK, attorneys for the State at trial., Lee Ann Jones Peters, James H. Lockard, Indigent Defense System, Norman, OK, attorneys f...
Case Date:March 23, 2009
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

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205 P.3d 1 (Okla.Crim.App. 2009)

2009 OK CR 11

Donald Anthony GRANT, Appellant


STATE of Oklahoma, Appellee.

No. D-2006-14.

Court of Criminal Appeals of Oklahoma.

March 23, 2009

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An Appeal from the District Court of Oklahoma County; the Honorable Jerry D. Bass, District Judge.Mark Barrett, Perry Hudson, Attorneys at Law, Norman, OK, attorneys for defendant at trial.

Sandra Elliott, Suzanne Lister, Assistant District Attorneys, Oklahoma City, OK, attorneys for the State at trial.

Lee Ann Jones Peters, James H. Lockard, Indigent Defense System, Norman, OK, attorneys for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Preston Saul Draper, Assistant Attorney General, Oklahoma City, OK, attorneys for the State on appeal.


C. JOHNSON, Presiding Judge.

¶ 1 Appellant, Donald Anthony Grant, was charged in Oklahoma County District Court, Case No. CF-2001-4696, with two counts of First Degree, Malice Aforethought Murder (21 O.S.2001, § 701.7(A)), and two counts of Robbery with Firearms (21 O.S.2001, § 801). As to the murder counts, the State alleged a number of aggravating circumstances in support of the death penalty.1 Jury trial was held November 14 through 23, 2005 before the Honorable Jerry D. Bass, District Judge. The jury found Appellant guilty as charged on all counts. As to the robbery counts, the jury recommended sentences of life imprisonment. As to each of the murder counts, the jury found the existence of all aggravating

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circumstances alleged, and recommended punishment of death on each count. This appeal followed.2


¶ 2 The essential facts of the crimes are not disputed. On July 18, 2001, Appellant entered a LaQuinta Inn in Del City, ostensibly to fill out an employment application. In reality, Appellant had planned to rob the hotel in order to obtain money to post bond for a girlfriend, Shlonda Gatewood (who was in the Oklahoma County Jail at the time), and was prepared to kill any witnesses to the crime. Appellant may have been motivated to strike this particular business because another girlfriend of his, Cheryl Tubbs, had been fired from employment there a few months before; in any event, Appellant was familiar with the layout of the property and the location of video surveillance equipment.

¶ 3 When Appellant saw the hotel manager, Brenda McElyea, he approached her with a pistol in his hand and ordered her to walk to a storage room, where he fatally shot her once in the head, and slashed her neck and back with a box knife to make sure the knife was sharp enough to use on his next victim. Appellant then left the storage room and approached another employee, Suzette Smith, in the break room. Appellant ordered Smith at gunpoint to give him the money from the hotel register, which she did. Appellant then ordered Smith to walk back to the manager's office, where he shot her three times in the face. Smith continued to struggle to escape, so Appellant brutally beat her and cut her numerous times with his knife. He hit Smith in the head with his pistol, attempted to break her neck, and threw a computer monitor on her head in an effort to stop her struggling. Eventually, Smith succumbed to her wounds and died in the office. Before leaving the office, Appellant took personal property from Smith's purse.

¶ 4 Appellant then left the hotel and walked to a nearby discount store, where he abandoned his pistol and some traveler's checks he had taken in the robbery.3 He then called a cab to take him to the home of Cheryl Tubbs. Later that day, Appellant used money from the robbery to pay Shlonda Gatewood's bond, which was about $200. Appellant and Gatewood then used a stolen car to drive from Oklahoma City to New York City, where Appellant had family. About a month after the murders, Appellant was arrested in New York and returned to Oklahoma. 4


¶ 5 Although he held the State to its burden of proving each element of the crimes, Appellant did not contest the State's claim that he was guilty of robbing and murdering Smith and McElyea. Similarly, on appeal, Appellant's complaints do not concern the sufficiency of the evidence to support his convictions per se. 5



¶ 6 In Proposition 1, Appellant claims that he was incompetent to stand trial. Appellant's

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competency was placed into question very early in this prosecution. In November 2001, a few months after Appellant's apprehension, defense counsel moved for a determination of competency. Over the next several years, Appellant was examined a number of times by a number of different mental-health experts. We need not present a detailed chronology here. Suffice it to say that the experts tended to agree that Appellant had some sort of mental illness, probably a form of schizophrenia. At one point, experts retained by both the State and the defense questioned Appellant's competency to stand trial, but by early 2005, experts on both sides believed that he was competent to proceed. A jury trial on the issue of competency was held in February 2005. The State presented its retained expert, Dr. John Call, as a witness. The defense did not call its chief expert, Dr. Curtis Grundy (who at the time believed Appellant to be competent), but instead relied on the testimony of defense counsel who had represented Appellant from the fall of 2001 until April 2003. The jury found Appellant competent to proceed, and the jury trial on guilt and punishment took place about nine months later.

¶ 7 Appellant submits that in the months between the competency trial and the trial on guilt and punishment, his competency may well have deteriorated. He points to his statements at various pretrial and in camera hearings, pro se writings, and his testimony in the punishment stage of the trial in an attempt to support this claim. He also submits extra-record evidence to support a related claim, based on the Sixth Amendment right to counsel, that trial counsel was deficient for not challenging his competency at the time of trial. Specifically, he presents (1) an expert's retrospective opinion, based on evaluation of various materials, that Appellant was not competent to stand trial in November 2005; and (2) documentary evidence suggesting that in mid-2005, Appellant was not diligent about taking medications prescribed to treat his mental illness.

¶ 8 The constitutional guarantee of due process of law has been interpreted to include the right to be tried only when one is sufficiently competent to understand the nature of the charges and to assist counsel in preparing a defense. Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 1376, 134 L.Ed.2d 498 (1996); Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 903-04, 43 L.Ed.2d 103 (1975). The law may presume a defendant is competent, and require him to shoulder the burden of proving his incompetence by a preponderance of evidence. Medina v. California, 505 U.S. 437, 452-53, 112 S.Ct. 2572, 2581, 120 L.Ed.2d 353 (1992). Under Oklahoma law, a person is competent to stand trial if he has the present ability to understand the nature of the charges and proceedings brought against him and to rationally assist in his own defense. 22 O.S.Supp.2005, § 1175.1(1). These standards are consistent with federal constitutional requirements. Cooper, 517 U.S. at 354 & n. 5, 116 S.Ct. at 1377 & n. 5; Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960).

¶ 9 Although competency is presumed, once a defendant has presented sufficient evidence to raise a doubt about his competency, Oklahoma law affords him the right to a jury trial on the issue. 22 O.S.2001, § 1175.1 et seq. Competency is a fluid concept, and a defendant's competency (or at least doubts about his competency) may come and go throughout the proceedings. The trial court's decision whether sufficient doubt exists about a defendant's ability to proceed is reviewed for an abuse of discretion. Beck v. State, 1981 OK CR 30, ¶ 3, 626 P.2d 327, 328. The trial court may consider the defendant's behavior, his demeanor at trial, and of course any expert evidence on the issue. Drope, 420 U.S. at 180, 95 S.Ct. at 908. Typically, the court will rely heavily on the perceptions of defense counsel, whose job it is to consult with his client personally, explain the proceedings to him, and obtain relevant information from him about how to proceed. See Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir.1999).

¶ 10 Initially, we note that the judge who presided over Appellant's trial had been assigned to this case in March 2003, and presided over the competency trial in February 2005. Closer to the time of trial on guilt and punishment, and during the trial itself, the

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court had several discussions with Appellant about various matters, including potential conflicts of interest and defense counsel's strategy of acknowledging guilt. Thus, the trial court not only observed Appellant personally in pretrial settings, but conversed with him about matters bearing directly on his ability to understand choices in legal strategy. Our review of these exchanges shows Appellant to have had a rather keen understanding of the legal process, and shows he was able to make important decisions.6 The letter Appellant addressed to the prosecutor shortly before trial, wherein he detailed his commission of the crimes, may not have been the most prudent course of action, but it does not show that he was unable to grasp the ramifications of such an admission. To the contrary, the letter indicates that Appellant was fully aware of what he was doing. Similarly, Appellant's testimony in the punishment stage of trial, wherein he tried to explain his actions but...

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