Castleberry v. State, PC-76-850

• Decision Date: 08 February 1979
• Docket Number: No. PC-76-850,PC-76-850
• Citation: 590 P.2d 697
• Parties: Kenneth Ray CASTLEBERRY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 697

590 P.2d 697

Kenneth Ray CASTLEBERRY, Appellant, v. The STATE of Oklahoma, Appellee.

No. PC-76-850.

Court of Criminal Appeals of Oklahoma.

Feb. 8, 1979.

An appeal from the District Court, Tulsa County; Jay Dalton, Judge.

Kenneth Ray Castleberry, appellant, was convicted of the crime of Murder in three separate cases, consolidated for trial; was sentenced to three (3) concurrent life terms, with judgment and sentence affirmed on direct appeal. The appellant then sought relief under the Post-Conviction Procedure Act. Post-Conviction relief was denied and the appellant appeals. The order denying post-conviction relief is AFFIRMED, and the appellant has exhausted all state remedies.

Paul D. Brunton, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Michael P. Kane, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

The appellant, Kenneth Ray Castleberry, hereinafter referred to as defendant, was charged in the District Court, Tulsa County, with the crime of Murder in cases numbered CRF-72-359, CRF-72-360 and CRF-72-361. All cases were consolidated and tried before a jury, and on March 22, 1973, the jury returned a verdict of guilty as charged and punishment was assessed at three (3) concurrent life sentences. From said judgment and sentence the defendant has perfected a timely appeal to this Court. The conviction was affirmed on April 18, 1974, and Petition for Rehearing was denied. The defendant subsequently appealed to the United States Supreme Court, which denied certiorari. Castleberry v. Oklahoma, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). The defendant filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C., § 2254, in the United States District Court for the Northern District of Oklahoma. Said petition was ultimately dismissed for want of exhaustion of state remedies, and on the 23rd day of June, 1976, the defendant filed his Application for Post-Conviction Relief before the Honorable Jay Dalton, District Judge for Tulsa County, seeking relief under the Post-Conviction Procedure Act. On October 18, 1976, the trial court made certain findings of fact and conclusions of law and denied post-conviction relief. The defendant appeals. For purposes of brevity, reference should be made to Castleberry v. State, Okl.Cr., 522 P.2d 257 (1974), for a review of the facts adduced at trial.

The defendant's first assignment of error essentially contends that the trial court, after the evidentiary hearing on the defendant's application for post-conviction relief, erred in its findings of fact and conclusions of law concerning the prosecution's failure to produce evidence favorable to him after a proper request. More specifically, the defendant contends that the trial court misapplied the constitutional mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when the trial court made the following findings of fact and conclusions of law, to-wit:

"2. The defendant contends in his Application for Post-Conviction Relief that the judgment of conviction and sentence in each of the above styled and numbered causes should be vacated for the following reasons:

"(a) That he was denied the right of a proper full appeal through no fault of his own because his attorneys in their appellate brief did not adequately raise the question relative to the constitutional mandate required by Brady v. Maryland, and consequently, the appellate court did not deal with this question;

"(b) The prosecution's failure to produce evidence favorable to the accused, after a proper request by Motion therefore, violated petitioner's right to due process of law guaranteed him by Article II, Section 7 of the Oklahoma Constitution, and the Fifth and Fourteenth Amendments of the United States Constitution; and

"3. During the evening hours of February 16, 1972, Michael Roger Lee Cozart gave a statement to Detective Arley Owens of the Tulsa Police Department concerning the activities of Jackie Dean Tandy on February 16, 1972;

"4. The testimony of Michael Roger Lee Cozart given at the Motion for New Trial was perjurious, and therefore not credible; this finding is based upon observation of the witness' demeanor at the time he testified, inconsistencies contained within the testimony, the obvious hostility of Mr. Cozart towards Jackie Dean Tandy, and the lack of corroboration of that testimony;

"5. The information concerning the activities of Jackie Dean Tandy related by Mr. Cozart to Detective Arley Owens on February 16, 1972, is truthfully and accurately reflected within the testimony of Arley Owens, and that information is corroborated by numerous other witnesses;

"6. During the evening hours of February 16, 1972, Michael Roger Lee Cozart did not give a statement to any member of the Tulsa Police Department which in any way indicated that he had observed blood on or about the clothing or person of Jackie Dean Tandy during the evening hours of February 16, 1972;

"7. Michael Roger Lee Cozart did not observe blood on or about the clothing or person of Jackie Dean Tandy during the evening hours of February 16, 1972, and his testimony to that effect was perjurious;

"8. The testimony of Jimmy Lee Mize given at the Motion for New Trial was perjurious, and therefore not credible; this finding is based upon observation of the witness' demeanor at the time he testified, a total lack of corroboration of said testimony, conflicts with the testimony of James Martin Mize, and credible testimony by numerous other witnesses which indicated Jackie Dean Tandy was somewhere else at the time Jimmy Mize purportedly saw him;

"9. Jimmy Lee Mize was not present at the Tandy-Bowdler residence during the morning hours of February 16, 1972, and consequently could not have observed anything regarding Jackie Dean Tandy about which he testified to at the Motion for New Trial;

"10. The testimony of James Martin Mize given at the Motion for New Trial was perjurious, and therefore not credible; this finding is based upon observation of the witness' demeanor at the time he testified, a total lack of corroboration of said testimony, conflicts with the testimony of Jimmy Lee Mize, and credible testimony from numerous other witnesses which totally impeaches the testimony of James Martin Mize, and which indicates that Jackie Dean Tandy was somewhere else at the time James Mize purportedly saw and talked to him;

"11. James Martin Mize was not present at the Tandy-Bowdler residence at any time on the 16th or 17th days of February, 1972, and consequently could not have observed anything regarding Jackie Dean Tandy about which he testified to at the Motion for New Trial, nor could he have had any conversation with Jackie Dean Tandy on the 16th day of February, 1972;

"12. Jackie Dean Tandy was at work during the morning hours of February 16, 1972, from approximately 7:30 a. m. until approximately 1:30 p. m., as was corroborated by the testimony of numerous other witnesses;

"13. Jackie Dean Tandy was investigated as a suspect in the deaths of Marie Castleberry, Brenda Castleberry, and Richard Castleberry, but he was arrested without probable cause "14. Members of the Tulsa Police Department removed a knife from the Tandy-Bowdler residence during the evening hours of February 16, 1972, along with a jacket and pair of boots, and all of these items together with the clothing worn by Jackie Dean Tandy during the morning, afternoon and evening hours of February 16, 1972, plus fingernail scrapings from Jackie Dean Tandy on the evening hours of February 16, 1972, were sent to the Oklahoma State Bureau of Investigation and analyzed for the presence of blood, which analyses were negative for the presence of blood in regard to all items;

"15. There is no credible, material evidence to indicate that Jackie Dean Tandy was in anyway involved in the deaths of Marie Castleberry, Brenda Castleberry, or Richard Castleberry which occurred on February 16, 1972;

"16. The State of Oklahoma was not in possession of any evidence prior to trial or during the course of the trial which indicated that Jackie Dean Tandy was involved in the deaths of Marie Castleberry, Brenda Castleberry, or Richard Castleberry; this finding is based upon all the testimony presented during these proceedings and Exhibit 'C' Affidavit of F. L. Dunn, III;

"17. The investigation of Jackie Dean Tandy as a suspect in the homicides of Marie Castleberry, Brenda Castleberry, and Richard Castleberry was a fruitless investigation which led to a dead-end and thus did not constitute evidence which would fall within the constitutional mandate of Brady v. Maryland ;

"18. The State of Oklahoma was not in possession of any exculpatory evidence prior to trial or during the course of the trial which was material to the guilt or punishment of the defendant, Kenneth Ray Castleberry;

"23. There was no specific demand made by the defendant or his attorneys prior to trial or during the course of the trial for the disclosure of any particular evidence known by the State prior to trial or during the course of the trial.

"Based upon the above and foregoing findings of fact, the Court makes the following conclusions of law:

"1. The evidence presented by the defense during the Motion for New Trial was not material to the issues of guilt, innocence, or punishment of the defendant, Kenneth Ray Castleberry;

"2. There is no reasonable probability that the results of the jury trial would have changed if the testimony adduced at the Motion for New Trial, or during the hearing on defendant's Application for Post-Conviction Relief, had been introduced at the trial;

"3. Because, prior to trial and during the course of the trial, the State was not in possession of any exculpatory evidence which was material to the guilt, innocence, or punishment of Kenneth Ray Castleberry, there was no issue as to whether the State violated the defendant's rights guaranteed to him by the Constitution of the State of Oklahoma or the ...