Walker v. State

• Citation: 826 P.2d 1002,1992 OK CR 10
• Decision Date: 24 February 1992
• Docket Number: No. PC-89-305,PC-89-305
• Parties: Gary Alan WALKER, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1002

826 P.2d 1002

Gary Alan WALKER, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-89-305.

Court of Criminal Appeals of Oklahoma.

Feb. 24, 1992.

An Appeal from the District Court of Tulsa County; Joe Jennings, District Judge.

Petitioner, Gary Alan Walker, was convicted by a jury of First Degree Murder and sentenced to death in the District Court of Tulsa County, Case No. CRF-2088. Petitioner filed an application for post-conviction relief which was denied and is the subject of this appeal. AFFIRMED.

Gloyd L. McCoy, Deputy Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Petitioner, Gary Alan Walker, is before this Court on an appeal from a district court order denying his Application for Post Conviction Relief. On June 7, 1984, petitioner was charged with three (3) counts of First Degree Murder, in the District Court of Tulsa County, in Case No. CRF-84-2088. Petitioner's attorney made a request for a competency determination on June 25, 1984, which was ordered by the district court. Even though a report was filed before trial, a post-evaluation competency hearing was not conducted at that time. The State dismissed two of the murder counts, and at the conclusion of the preliminary hearing, petitioner was bound over for trial on one count of murder.

The jury convicted petitioner of First Degree Murder and sentenced him to death. This Court affirmed that Judgment and Sentence in Walker v. State, 723 P.2d 273 (Okl.Cr.1986), cert. denied 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986). On January 28, 1987, petitioner, through his attorney-of-record at the Tulsa County Public Defender's Office, filed an Application for Post-Conviction Relief in Tulsa County District Court. The Tulsa County Public Defender's Office was allowed to withdraw as petitioner's attorney-of-record on November 11, 1988, and Gloyd McCoy of the Appellate Public Defender's Office was appointed to represent petitioner. The district court allowed petitioner to amend his Application for Post-Conviction Relief on March 2, 1988, and November 23, 1988.

On May 31, 1988, a hearing was held to determine if it was feasible to conduct a retrospective post-evaluation competency hearing. The district court determined that such a hearing was feasible and set the hearing for September 13, 1988, for a jury trial to determine whether petitioner was competent at the time of trial in 1984. On September 12, 1988, petitioner's attorney, Gloyd McCoy, announced to the Court, without petitioner present, that Mr. Walker would waive a jury trial on the issue of his competency. A non-jury trial was set for October 26, 1988. On that date, petitioner was present with his attorney; however, since petitioner refused to answer the court's questions with regard to his waiver of jury trial, the court again set the case for jury trial on the issue of competency for November 21, 1988. On November 29, 1988, petitioner, present with his attorney, waived his right to a jury trial, and a hearing, on the issue of his competency, was had to the court. At the end of all the evidence, the court found that petitioner was competent at the time of his 1984 trial.

On February 28, 1989, the district court held the hearing on petitioner's Application for Post-Conviction Relief. Both sides stipulated as to testimony presented at the criminal trial and at the retrospective competency hearing and relied on briefs previously submitted to the district court. The district court took the matter under advisement and on March 10, 1989, issued an order denying the Application for Post-Conviction relief. It is from that order that petitioner now appeals to this Court.

I.

Petitioner raises nine propositions of error in his brief. In his first proposition, petitioner contends that the district court erred in failing to grant relief on the basis of the evidence showing he may be suffering from an organic brain dysfunction. This issue was raised for the first time at the retrospective competency hearing held in November 1988, even though the issue was irrelevant to the determination of his competency at the time of trial.

In 1984, petitioner was appointed a psychiatrist before trial to aid in his defense. In a report submitted to defense counsel before trial, the psychiatrist, Dr. Thomas Goodman, indicated that petitioner may be suffering from an organic brain dysfunction, but that further tests needed to be preformed to make such a determination. Defense counsel did not pursue this issue at the time of trial or raise it on direct appeal. Nevertheless, even if petitioner does suffer from an organic brain dysfunction, relief is not automatically warranted since such evidence would merely relate to his defense of insanity, which was vigorously pursued at trial. As the district court found, petitioner has not demonstrated any sufficient reason for failure to present this issue previously, therefore he is barred by res judicata from raising this issue on post-conviction relief. Coleman v. State, 693 P.2d 4, 5 (Okl.Cr.1984).

II.

In his second proposition, petitioner contends that the district court erred in failing to grant relief on the basis that the trial court failed to grant a continuance. Petitioner contends that because defense counsel was denied a continuance at the time of trial, he was unable to fully develop his defense. This issue was addressed on direct appeal and rejected by this Court. Walker, 723 P.2d at 279-80. Therefore, further review of this issue is precluded by the doctrine of res judicata. Coleman, 693 P.2d at 5.

III.

Petitioner contends in this third proposition that his conviction and death sentence should be vacated because the retrospective competency hearing that was conducted on November 29, 1988, was inadequate to cure the error of not providing such a hearing at the time of trial. First, he contends such a hearing violates state law. This Court has held that such retrospective competency hearings are constitutionally fair if it is feasible and there is sufficient evidence available to make a determination as to the defendant's competency. Thomas v. State, 777 P.2d 399 (Okl.Cr.1989); Anderson v. State, 765 P.2d 1232 (Okl.Cr.1988): Johnson v. State, 761 P.2d 484, 491-92 (Okl.Cr.1988). See also Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). After a review of the hearing conducted on November 29, 1988, we find that there was no violation of state law by conducting a retrospective hearing and that petitioner's due process rights were not violated.

Second, petitioner contends that the State's evidence was insufficient to show that a retrospective hearing was feasible or that petitioner was competent at the time of his trial. However, petitioner has the burden to prove that he was incompetent; the presumption is that the person is competent until they demonstrate otherwise. 22 O.S.1981, § 1175.4(B); See also Ake v. State, 778 P.2d 460, 464 (Okl.Cr.1989). At the retrospective competency hearing, petitioner presented one witness--his trial attorney on a murder case out of Rogers County, and attempted to introduce documents that appeared to be records from where petitioner was hospitalized for mental problems. While his attorney testified that the defense in the Rogers County case was insanity, he also testified that he never requested a jury trial on Mr. Walker's competency to stand trial. The State called witnesses to testify, such as petitioner's attorney from the Tulsa County Public Defender's Office, and Dr. Goodman, the psychiatrist who examined petitioner for the defense. The State's witnesses testified that Mr. Walker was competent and able to confer with his attorneys during the 1984 trial. Therefore, after a review of the testimony presented and the evidence submitted, we find that petitioner failed to meet his burden of proving that he was incompetent.

Third, petitioner asserts that the failure of the district court to make funds available to petitioner for further neurological testing denied petitioner an opportunity to present evidence on his behalf. At the trial in 1984, petitioner's court-appointed psychiatrist stated in a letter to defense counsel that further testing would be beneficial in determining if Mr. Walker was suffering from an organic brain dysfunction. However, at the 1984 trial and at the competency hearing in 1988, Dr. Goodman testified that he was able to make an opinion as to petitioner's competency and sanity based upon the records that he had available to him at that time. Whether petitioner suffers from brain damage does not per se mean that he is entitled to relief; that evidence would be presented to the jury to aid in their determination of whether Mr. Walker was insane at the time he committed the criminal act. Considering the testimony that Dr. Goodman gave at trial that in his opinion petitioner was insane at the time of the crime, but was competent to stand trial in 1984, it would be speculation as to whether evidence of an organic brain dysfunction would produce a different result at trial, and certainly does not automatically mean that petitioner was incompetent to stand trial. Therefore, relief is not warranted.

Finally, petitioner complains that certain evidentiary rulings made by the district court at the hearing denied petitioner an opportunity to present evidence as to his incompetency. Specifically, petitioner contends that the district court failed to consider and review certain medical records, that the State was allowed to question two witnesses about a videotaped interrogation of petitioner, and that the district court refused to consider testimony from a subsequent trial.

Petitioner concedes that the records from the hospitals where he had been admitted for mental problems were not authenticated and were incomplete. He states that at least the...