Fowler v. State

• Decision Date: 28 April 1994
• Docket Number: No. PC-93-1021,PC-93-1021
• Citation: 873 P.2d 1053
• Parties: Mark Andrew FOWLER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1053

873 P.2d 1053

Mark Andrew FOWLER, Appellant, v. STATE of Oklahoma, Appellee.

No. PC-93-1021.

Court of Criminal Appeals of Oklahoma.

April 28, 1994.

An Appeal from the District Court of Oklahoma County, Thomas C. Smith, Jr., District Judge.

James T. Rowan, Asst. Public Defender, Oklahoma City, for appellant at trial.

Robert Macy, Dist. Atty., Patrick Morgan, Steve Huddleston, Asst. Dist. Attys., Oklahoma City, for appellee at trial.

William R. Foster, Jr., Asst. Appellate Indigent Defender, Randy A. Bauman, Acting Chief Appellate Indigent Defender, Capital Post-Conviction, Norman, for appellant on appeal.

Susan B. Loving, Atty. Gen. of Oklahoma, Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee on appeal.

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

CHAPEL, Judge.

Mark Andrew Fowler appeals from an order of the District Court of Oklahoma County denying his application for post-conviction relief in Case No. CRF-85-3343. Fowler was convicted by jury on May 16, 1986, of three counts of Murder in the First Degree while in the commission of Robbery With a Dangerous Weapon, felony-murder, 21 O.S.1981, § 701.7(B), and sentenced to death on each count.

Fowler and co-defendant Billy Ray Fox were convicted of the July 3, 1985, murder of three Wynn's IGA grocery store employees during a robbery in which approximately $2700 was taken. Fowler and Fox made separate statements to police confessing to participation in the robbery, but denying committing or participating in the murders. Fox admitted to his roommate Chris Glazner that he had killed three people and that Fowler had stabbed one. Neither defendant testified at trial. Glazner's testimony was edited to remove all references to any party other than Fox; a police officer's testimony on Fowler's statement was redacted to discuss only Fowler's admissions regarding presence in the store and participation in the robbery.

This Court affirmed Fowler's Judgment and Sentences on August 30, 1989, in Fowler v. State, 779 P.2d 580 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990). Fowler's motion for rehearing was denied on October 2, 1989. Between May 25, 1990, and July 12, 1993, Fowler filed his Application for Post-Conviction Relief, along with several amended and supplemental applications. On April 7, 1992, this Court denied Fowler's Motion to Recall Mandate based on the issue of severance for mutually antagonistic defenses. Proceedings were held in abeyance from November 2 1992, until July 21, 1993, pending resolution of Mann v. Reynolds, 828 F.Supp. 894 (W.D.Okl.1993). On August 24, 1993, the District Court denied all applications, amended and supplemental, for post-conviction relief except in regard to one issue--an issue it declined to consider unless so directed by this Court.

In Fowler's appeal now before us, he raises twelve propositions of error. After thorough review of each claim of error, we find that his second proposition is the only proposition not barred by res judicata or waived. In that proposition, Fowler does not directly attack his conviction or sentence, but claims he was denied due process because he did not receive a full and fair appellate review of his judgment and sentence by a competent tribunal. We reject the collateral attack on Fowler, ¹ find the proposition to be without merit and affirm the district court's denial of post-conviction relief. ²

Initially, we note the Post-Conviction Procedure Act, 22 O.S.1981, §§ 1080 et seq., outlines procedures for a defendant to challenge conviction and sentence after direct appeal. No authority extends post-conviction review procedures to encompass challenges to review on direct appeal.

The opinion in this case as filed with the Clerk, with the individual judges' votes shown thereon, is the official pronouncement of this Court. Our rules permit and we encourage litigants to seek rehearing when an opinion overlooks a decisive question or authority. Rule 3.14, 22 O.S.1981, Ch. 18, App. Fowler presents absolutely no authority ³ which would require or permit this Court to consider a collateral attack on this Court's opinion upon the assertion that one of its members was "incompetent". ⁴ We decline to do so here. Moreover, we find the appellate procedures afforded Fowler, and the opinion issued by this Court which thoroughly considered all issues and authorities raised by him, ⁵ comport fully with the due process requirements of the federal and state constitutions. ⁶ This proposition is without merit and is denied.

Fowler also requests an evidentiary hearing on Proposition II. Neither the U.S. nor the Oklahoma Constitution affords Fowler a right to an evidentiary hearing, 22 O.S.1981, § 1084, Johnson v. State, 823 P.2d 370 (Okl.Cr.1991), cert. denied, 504 U.S. 926, 112 S.Ct. 1984, 118 L.Ed.2d 582 (1992). Furthermore, no issue of material fact has been presented. The request for evidentiary hearing is denied.

Propositions I, III, IV, VIB, VII (in part), and XI ⁷ were raised on direct appeal and are therefore barred by res judicata. Walker v. State, 826 P.2d 1002 (Okl.Cr.1992), cert. denied, 506 U.S. 898, 113 S.Ct. 280, 121 L.Ed.2d 207 (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).

Propositions V, VIA, VII (in part), VIII, IX, X, and XII could have been raised on direct appeal, but were not, and are therefore waived absent proof of adequate grounds to excuse the delay, Johnson v. State, 823 P.2d 370 (Okl.Cr.1991), cert. denied, 504 U.S. 926, 112 S.Ct. 1984, 118 L.Ed.2d 582 (1992); Banks, supra. Fowler argues that Propositions V, VIA, and X are not waived because he has not been granted sufficient funds to pursue them. We find this does not excuse his failure to raise the issue on direct appeal.

We have carefully examined Fowler's entire record before us on appeal, including the application and the District Court's findings of fact and conclusions of law, and find that he is not entitled to relief. The order of the District Court denying post-conviction relief should be, and is hereby AFFIRMED, and Fowler's second proposition of error is DENIED.

LUMPKIN, P.J., JOHNSON, V.P.J., and LANE and STRUBHAR, JJ., concur.

1 Fowler also attacks Fox v. State, 779 P.2d 562 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990), which discusses legal issues raised by both defendants.

2 Notwithstanding our decision to deny Fowler's second proposition, we have conducted a thorough, complete review of the Fowler and Fox issues on severance and peremptory challenges. Under Oklahoma law, mutually antagonistic defenses exist and require severance where each defendant attempts to exculpate himself and inculpate his co-defendant. Perry v. State, 853 P.2d 198 (Okl.Cr.1993); Neill v. State, 827 P.2d 884 (Okl.Cr.1992); Woodruff v. State, 825 P.2d 273 (Okl.Cr.1992); Romano v. State, 827 P.2d 1335 (Okl.Cr.1992) (companion case to Woodruff); Lafevers v. State, 819 P.2d 1362 (Okl.Cr.1991); Cannon v. State, 827 P.2d 1339 (Okl.Cr.1992) (companion case to Lafevers); Vowell v. State, 728 P.2d 854 (Okl.Cr.1986); VanWoundenberg v. State, 720 P.2d 328 (Okl.Cr.1986), cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986); Master v. State, 702 P.2d 375 (Okl.Cr.1985); Murray v. State, 528 P.2d 739 (Okl.Cr.1974). The issue is neither whether defendants disagree about facts nor whether one defendant claims the other should bear greater responsibility. Conflicting defenses or cases in which both defendants admit to presence and some participation in the crimes do not require severance; Lafevers, supra, 819 P.2d at 1366, specifically distinguishes its holding from felony-murder cases which have no element of intent or malice. But cf. Zafiro v. U.S., 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (under federal rules, mutually antagonistic defenses do not require severance absent a serious risk that defendant's specific trial right is compromised or that the jury would be prevented from making a reliable judgment as to guilt or innocence).

Peremptory challenges are not constitutionally guaranteed and are subject to limitation in their exercise, Stilson v. U.S., 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154 (1919); see also Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Title 22 O.S.1981, § 655 requires co-defendants to join in peremptory challenges unless the defenses are inconsistent. Neill v. State, supra, 827 P.2d at 891, separates "inconsistent" defenses under 22 O.S.1981, § 655 into two categories, and holds that inconsistent defenses which go to guilt or innocence require separate peremptories, but where inconsistency goes to culpability defendants may be required to share peremptory challenges. Accord Wilhite v. State, 701 P.2d 774 (Okl.Cr.1985); Master v. State, 702 P.2d 375 (Okl.Cr.1985). I believe that the Neill definition should be discarded and inconsistent defenses held to exist if both defenses cannot be true, or if one co-defendant disproves or disparages the defense of the other to prove his defense. However, Neill represents this court's majority view. As Fowler and his codefendant each inculpated himself of felony murder and sought to place greater responsibility on the other, the defenses were neither mutually antagonistic nor inconsistent under Oklahoma law. The opinions in Fowler and Fox are well-reasoned, within the applicable case law, and unexceptionable.

3 In support of...