844 P.2d 176 (Okla.Crim.App. 1992), PC-90-632, Nguyen v. State

Docket Nº:PC-90-632.
Citation:844 P.2d 176
Party Name:Tuan Anh NGUYEN, Appellant, v. The STATE of Oklahoma, Appellee.
Case Date:December 03, 1992
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 176

844 P.2d 176 (Okla.Crim.App. 1992)

Tuan Anh NGUYEN, Appellant,

v.

The STATE of Oklahoma, Appellee.

No. PC-90-632.

Court of Criminal Appeals of Oklahoma.

December 3, 1992.

Page 177

An Appeal from the District Court of Tulsa County. Jay D. Dalton, District Judge.

Page 178

Tuan Anh Nguyen, appellant, was convicted of three counts of First Degree Murder in the District Court of Tulsa County, Case No. CRF-82-1986, and sentenced to life imprisonment on Count I and death on both Counts II and III. His convictions and sentences were affirmed by this Court in Nguyen v. State, 769 P.2d 167 (Okl.Cr.1988), and certiorari was denied by the Supreme Court in Nguyen v. Oklahoma, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989). Appellant's application for post-conviction relief was denied by the District Court of Tulsa County and he appeals. AFFIRMED.

Lynn B. Lamberty and Mitchell A. Lee, Asst. Appellate Public Defenders, Norman, for appellant.

Robert H. Henry, Atty. Gen., A. Diane Hammons, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Tuan Anh Nguyen, appellant, was tried by jury and convicted of three (3) counts of First Degree Murder in Tulsa County District Court Case No. CRF-82-1986, and sentenced to life imprisonment on Count I and death on both Counts II and III. Appellant's convictions and sentences were affirmed by this Court in Nguyen v. State, 769 P.2d 167 (Okl.Cr.1988), and the Supreme Court denied certiorari in Nguyen v. Oklahoma, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989). The instant appeal arises from the Tulsa County District Court's denial of appellant's application for post-conviction relief.

In this appeal, appellant raises nineteen (19) assignments of error, the majority of which contain multiple sub-propositions. Absent a showing that appellant was denied effective assistance of appellate counsel, this Court will not consider most of the assignments of error asserted because they were either raised or should have been raised on direct appeal. Issues which were raised and decided on direct appeal are barred from reconsideration by res judicata. Issues which were not raised on direct appeal, but could have been raised are waived. See Rojem v. State, 829 P.2d 683 (Okl.Cr.1992); Banks v. State, 810 P.2d 1286 (Okl.Cr.1991), cert. denied 502 U.S. 1036, 112 S.Ct. 883, 116 L.Ed.2d 787 (1992). Ineffective assistance of appellate counsel is thus vital to our consideration of the majority of appellant's arguments and will be addressed first. Appellant has divided his ineffective assistance of appellate counsel claim into three categories: (1) Counsel failed to adequately present the issues raised on direct appeal; (2) counsel failed to raise critical issues; and (3) counsel failed to raise ineffective assistance of trial counsel.

In addressing the first category of alleged ineffectiveness, we refer to our detailed decision of a virtually identical issue in Banks:

[W]e begin with the observation that it is undeniably true that some appellate briefs are written better than others. Those briefs submitted by both appellant and appellee which are well researched, accurate, concise, clear and to the point are of true benefit to the Court. Not all briefs rise to this level of excellence. However, a brief reaches the minimum level constitutionally acceptable if it sufficiently raises relevant issues for the Court to consider and address.

The petitioner does not claim the issues raised on direct appeal ... were not fully considered by the Court. He simply argues that they could have been more effectively presented. We find that the briefs submitted on direct appeal ... were supported with relevant authority, and therefore were sufficient to raise the issues for our consideration.

Id., 810 P.2d at 1290 (citations omitted).

Similarly, we find that the brief submitted on appellant's direct appeal in the instant case was supported with relevant authority and sufficiently raised the issues presented for our consideration. Indeed, direct appeal counsel raised a number of plausible issues, one of which resulted in the invalidation of an aggravating circumstance.

Page 179

Turning to the second and third categories of alleged ineffectiveness of appellate counsel, our attention is again directed to this Court's opinion in Banks. In addressing a similar issue therein, that appellate counsel failed to raise critical issues in previous appeals, we stated inter alia:

Plainly, all nonfrivolous issues need not, and should not be raised in an effective appellate brief. However, failure to raise an issue warranting reversal, modification of sentence, or remand for resentencing may well prove counsel was ineffective. In order to determine if such is the case here, we have addressed each of the errors [appellant] asserts in support of his argument that appellate counsel was ineffective.

Id., 810 P.2d at 1291.

Appellant cites the following propositions of error in support of his claim that trial counsel failed to raise critical issues on direct appeal: Testimony concerning blood splatters at the crime scene was incompetent and speculative, and testimony regarding appellant's marital difficulty should have resulted in a mistrial (Prop. XIV(b) and (c)); numerous jury instruction errors in both stages of trial (Props. VI, VIII, IX and X(a-d)); the testimony of the State's second stage witness was inadmissible (Prop. XIV(f)); the jury instructions concerning the "continuing threat" aggravating circumstance were unconstitutionally vague and the evidence was insufficient to support the jury's finding of the same (Prop. VI); and the cumulative effect of the errors occurring during the proceedings denied appellant a fair trial.

With respect to appellant's third category of alleged ineffectiveness of appellant counsel, he claims that appellate counsel should have raised the following issues concerning ineffective assistance of trial counsel: Trial counsel conducted an inadequate investigation (Prop. XV(1)(a)); failed to adequately file pre-trial motions (Props. XV(1)(b) and I); provided ineffective assistance during jury selection (Prop. XV(1)(c)(1-3)); and provided ineffective assistance during trial (Prop. XV(1)(d)(1-12)), which includes inter alia references to Props. I, III, IV, V(C), VIII, IX, X and XIV). Appellant also claims that he was denied a fair trial due to a conflict of interest which existed between himself and trial counsel (Prop. XV(2)).

When addressing claims of ineffective assistance of both trial and appellate counsel, this Court is guided by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr.1985), cert. denied 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986). The basic test for ineffectiveness of counsel is "Whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. In determining whether counsel provided "reasonably effective assistance," this Court indulges "a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." Id., at 689, 104 S.Ct. at 2065. Finally, the appellant bears the burden of showing both that counsel's performance was deficient and that such deficient performance prejudiced the defense. Id., at 687, 104 S.Ct. at 2064.

In the present case, we recognize that different trial counsel may have spent more time preparing the case, filed more pre-trial motions, asked more questions during jury selection, presented more evidence and made more objections during trial. Another...

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