890 P.2d 959 (Okla.Crim.App. 1995), F-92-65, Rogers v. State

Docket Nº:F-92-65.
Citation:890 P.2d 959
Party Name:Kelly Lamont ROGERS, Appellant, v. STATE of Oklahoma, Appellee.
Case Date:January 24, 1995
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

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890 P.2d 959 (Okla.Crim.App. 1995)

Kelly Lamont ROGERS, Appellant,

v.

STATE of Oklahoma, Appellee.

No. F-92-65.

Court of Criminal Appeals of Oklahoma.

January 24, 1995.

Order Denying Rehearing March 8, 1995.

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Jack Bowyer, Perkins, Michael Stano, Stillwater, for defendant at trial.

Paul R. Anderson, Dist. Atty., Frank Muret, Asst. Dist. Atty., Stillwater, for State at trial.

Anne M. Moore, Appellate Indigent Defender, Norman, for appellant on appeal.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for appellee on appeal.

OPINION

CHAPEL, Vice Presiding Judge.

Kelly Lamont Rogers was tried by jury before the Honorable Donald L. Worthington in the District Court of Payne County. In Case No. CRF-90-412 he was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, § 701.7; he was convicted of First Degree Robbery, 21 O.S.1991, § 801, in CRF-91-26 and CRF-91-27; First Degree Rape, 21 O.S.1991, §§ 1111, 1114, in CRF-91-28; and Larceny of a Motor Vehicle, 21 O.S.1991, § 1720, in CRF-91-29, all after conviction of two or more felonies. The jury found 1) the murder was especially heinous, atrocious, or cruel; 2) there was a probability that Rogers would commit criminal acts of violence that would constitute a continuing threat to society; and 3) Rogers had previously been convicted of a felony involving violence. Rogers was sentenced to death for the murder conviction, fifty years and seventy-five years for each robbery charge respectively, one hundred fifty years for rape, and fifty years incarceration for larceny. From these convictions

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Rogers has perfected his appeal, raising eleven propositions of error.

On December 19, 1990, Rogers and his girlfriend, Audra Todd, ordered a pizza from Pizza Express. Karen Lauffenburger, a student at Oklahoma State University, delivered the pizza to Todd's apartment. After receiving the pizza, Rogers followed Lauffenburger, robbed her of her $40.00 Pizza Express "bank" and demanded more money. They drove to Lauffenburger's apartment, where she got her automatic teller machine (ATM) bank card. Next, they drove to a nearby ATM, and she first enquired about her bank balance, then withdrew all her money. The two returned to Lauffenburger's apartment. Lauffenburger's fiancee, Peter Gilmartin, found her there nude at approximately 10:00 p.m., dead from nine stab wounds in the chest, neck and abdomen. At some point during the evening Lauffenburger was raped. Sperm consistent with Rogers (but inconsistent with Gilmartin) was found on vaginal swabs, Lauffenburger's panties and jeans. She had peri- or postmortem vaginal injuries consistent with nonconsensual sexual intercourse. Rogers was subsequently arrested and questioned. He eventually admitted stabbing Lauffenburger but insisted that they had consensual sexual intercourse.

PRETRIAL ISSUES

Rogers claims in his first proposition that the trial court erred in denying his request for state funds to hire a private investigator and forensics experts. Rogers argues in subproposition A that the denial violated his rights under the Fourteenth Amendment to the United States Constitution. The Supreme Court has held that Oklahoma must provide psychiatric experts to a defendant who made a preliminary showing that sanity at the time of the offense was likely to be a significant factor at trial.1 The Court set forth a three-part test to determine whether a defendant needs access to psychiatric experts: 1) the defendant's private interest in the accuracy of the proceedings; 2) the State's interest affected by providing the assistance; and 3) the probable value of the procedural safeguards sought and the risk of inaccuracy in the proceedings without the requested assistance.2 Rogers and the State each cite several cases from this Court as well as cases from other jurisdictions to support their respective arguments that Ake has or has not been extended to other expert assistance. A chronological review of this Court's cases shows that the principles of Ake have been extended to any expert necessary for adequate defense.3

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Before a defendant may qualify for such expert assistance, he must make a showing of need and show that he will be prejudiced by the lack of expert assistance. Rogers meets neither requirement here. In his Application for Employment of Expert Witness at State Expense, filed February 12, 1991, Rogers claims poverty, says he believes he has a valid defense but is unable to locate (unnamed) key witnesses, and states that a private investigator is necessary for a proper investigation and preparation of his case. In his Application for Employment of Private Investigator at State Expense, filed May 17, 1991, Rogers repeats his prior claims without elaboration. In his second Application for Employment of Expert Witness at State Expense, filed September 19, 1991, Rogers claims only that he is indigent and has a valid defense to the crimes charged. In the Motions Hearing of September 19, 1991, Rogers requested funds for a) an investigator to aid and assist counsel in gathering witness statements and/or exculpatory evidence, b) forensics experts to make sure that the State's expert opinions were "true and correct", and c) a doctor to "go over" the medical examiner's results and conclusions. While the trial court erroneously believed Ake would not extend to these requests, the court noted that it would reconsider the applications, especially if Rogers made a "precise particular application for a certain expert on a certain point." When arguing his motion in objection to the Bill of Particulars, Rogers did not again request an expert but argued that he had not been provided a DNA expert and could not substantiate whether DNA testimony would show Lauffenburger was conscious at the time of the rapes. Before voir dire began Rogers moved for a continuance based on a search for a witness, Lassiter: Rogers noted that he had been denied state funds for an investigator but eventually counsel hired an investigator out of pocket as "we believe that those police reports and Mr. Lassiter's statements will be critical and crucial as far as the defense is concerned." This claim is the most specific statement Rogers ever makes regarding a showing of need or prejudice resulting from lack of expert assistance, and it in no way meets the requirements for either.

Rogers argues in subproposition B that his right to effective assistance of counsel was violated by the denial of funds. The test for ineffective assistance of counsel is whether an attorney's performance is so deficient that the defendant did not have counsel which the Sixth Amendment guarantees, and the defense was prejudiced through counsel's deficient performance by errors so serious as to deprive the defendant of a fair trial with reliable results. In death cases, there must be a reasonable probability that, absent errors, the sentencer would have concluded the balance of aggravating and mitigating circumstances did not equal a death sentence.4 There is a strong presumption that counsel's conduct was professional, and the defendant must overcome the presumption that counsel's conduct equalled sound trial strategy. On appeal the court will (1) consider counsel's challenged conduct on the facts of the case as viewed at the time, (2) ask whether the conduct was professionally unreasonable, and, if so, (3) ask whether the error affected the jury's judgment.5

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Rogers claims that the State's action in refusing to fund investigators and forensics experts created a small likelihood that any attorney could provide effective assistance of counsel. He argues that, without a separate investigation or expert preparation, counsel was unable to intelligently challenge the State's evidence. This claim founders on the trial record. Counsel not only filed and argued numerous motions, made abundant objections at trial, requested instructions, and presented evidence in mitigation during the second stage, but also vigorously challenged the State's evidence, particularly forensic evidence, through cross-examination and motions at every opportunity. Rogers cannot meet the test above.

Finally, Rogers argues in subproposition C that the trial court's denial of requested funds violated his right to equal protection under the laws. Rogers argues vigorously here, as at trial, that he was treated differently from other indigent capital defendants. At the time of the crimes Oklahoma law allowed trial courts in capital cases to provide expert assistance to indigent defendants if such experts were necessary to an adequate defense upon a showing of need.6 This statute was repealed when the indigent defense system was reorganized effective July 1, 1991. The Capital Litigation Division of the Oklahoma Indigent Defense System was created to handle all indigent capital trials except those in Tulsa and Oklahoma Counties, and the legislation provided for state-funded defense experts.7 Rogers' trial did not begin until December 9, 1991. After the OIDS enabling legislation was passed counsel argued spiritedly and often that, under the new legislation, the Capital Division should be responsible for the trial and Rogers was entitled to state-funded experts. The trial court determined that the Capital Division did not yet exist and was unable to take the case and noted several times that counsel had been appointed by the court under the former statute and was competent to handle the case. Rogers correctly notes that, had he been in Tulsa or Oklahoma County or represented by OIDS, he would have been entitled to state-funded experts. His argument is interesting and carries...

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