892 P.2d 646 (Okla.Crim.App. 1995), PC-94-180, Clayton v. State

Docket NºPC-94-180.
Citation892 P.2d 646
Party NameRobert William CLAYTON, Petitioner, v. STATE of Oklahoma, Respondent.
Case DateJanuary 10, 1995
CourtCourt of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 646

892 P.2d 646 (Okla.Crim.App. 1995)

Robert William CLAYTON, Petitioner,

v.

STATE of Oklahoma, Respondent.

No. PC-94-180.

Court of Criminal Appeals of Oklahoma.

January 10, 1995.

Page 647

[Copyrighted Material Omitted]

Page 648

[Copyrighted Material Omitted]

Page 649

Order Affirming Denial of Post Conviction Relief.

STRUBHAR, Judge:

Robert William Clayton, Petitioner, was convicted of Murder in the First Degree and sentenced to death in the District Court of Tulsa County, Case No. CRF-85-2501. Judgment and sentence were affirmed by this Court in Clayton v. State, 840 P.2d 18 (Okl.Cr.1992), cert. denied, 507 U.S. 1008, 113 S.Ct. 1655, 123 L.Ed.2d 275 (1993). Petitioner's subsequent Application for Post Conviction Relief was filed in the District Court of Tulsa County on August 26, 1993 and denied on January 14, 1994. 1 Petitioner appeals this denial.

Before presenting his briefed propositions of error Petitioner requests permission to

Page 650

amend his petition to include an allegation of error based upon the flight instruction given in his trial. (Original Record Case No. F-86-165 (hereinafter Trial O.R.) at 202). He requests an evidentiary hearing to determine whether reversal is warranted based on Mitchell v. State, 876 P.2d 682 (Okl.Cr.1993). This request is presented again in Proposition VI of Petitioner's Brief. This Court has held Mitchell to be prospective in effect. Nguyen v. State, 879 P.2d 148 (1994); Smith v. State, 878 P.2d 375 (1994). Because Petitioner's appeal was final before Mitchell was handed down his argument is moot and will not be addressed.

In addressing Petitioner's briefed propositions of error we initially reiterate that an application for post conviction relief in a capital case is not a new trial or a second appeal. Smith v. State, 826 P.2d 615, 616 (Okl.Cr.1992), cert. denied, 506 U.S. 952, 113 S.Ct. 405, 121 L.Ed.2d 331 (1992); Banks v. State, 810 P.2d 1286, 1289 (Okl.Cr.1991), cert. denied, 502 U.S. 1036, 112 S.Ct. 883, 116 L.Ed.2d 787 (1991); 22 O.S.1991, § 1089. In his brief Petitioner raises several issues which were raised and decided on direct appeal. 2 These issues are barred from our further consideration by res judicata. Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992); Coleman v. State, 693 P.2d 4, 5 (Okl.Cr.1984); 22 O.S.1981, § 1086. Petitioner also raises several issues which were not raised on direct appeal. 3 Because

Page 651

he fails to provide sufficient reason why these issues were not raised earlier they are waived. Rojem v. State, 829 P.2d 683, 684 (Okl.Cr.1992), cert. denied, 506 U.S. 958, 113 S.Ct. 420, 121 L.Ed.2d 343 (1992); Smith v. State, 546 P.2d 1351, 1354 (Okl.Cr.1976); 22 O.S.1981, § 1086.

Petitioner raises five issues which are properly before this Court on post conviction review: (1) denial of access to the courts based upon Mann v. Reynolds, 828 F.Supp. 894 (W.D.Okla.1993); 4 (2) erroneous admission of unqualified expert testimony at trial; 5 (3) the constitutionality of 22 O.S.1991, § 1089; 6 (4) ineffective assistance of appellate counsel; 7 and (5) alleged accumulation of error warranting relief. 8 Our review will be limited to these issues.

In his first and ninth propositions of error Petitioner contends he was denied access to the courts and effective assistance of counsel by the denial of confidential contact communication with counsel and defense experts. Mann, 828 F.Supp. 894. This Court has held access to the courts based on Mann is not relevant to the issues presented for post conviction relief. Nguyen, 879 P.2d at 149. See also Ross v. State, 872 P.2d 940, 941 (Okl.Cr.1994); Williamson v. State, 852 P.2d 167, 169 (Okl.Cr.1993) (requests to hold post conviction review in abeyance until decision rendered by federal district court held collateral to and not properly presented for this Court's review). Nor does limited communication, standing alone, render counsel ineffective. Nguyen, 879 P.2d at 149; Duvall v. State, 869 P.2d 332, 332 n. 1 (Okl.Cr.1994); Mann v. State, 856 P.2d 992, 993 (Okl.Cr.1993). Petitioner presents no reason to deviate from these holdings.

In his second proposition Petitioner claims the State presented unreliable and inadmissible

Page 652

blood spatter evidence through the testimony of Kenneth Ede. 9 He contends that evidence, in the form of affidavits and letters, proves Ede lied about his qualifications as a blood spatter expert and presents a strong challenge to Ede's conclusions. He argues Ede's testimony, critical to support the aggravating circumstance of heinous, atrocious or cruel and the trial court's denial of a manslaughter instruction, violated due process and therefore is appropriate for post conviction review. 22 O.S.1991, § 1080(a). Petitioner also argues the letters and affidavits are new evidence, unavailable at trial or on appeal, which permits post conviction review. 22 O.S.1991, § 1080(d).

Petitioner appended three affidavits attacking Ede's qualifications to testify as a blood spatter expert in a different case 10 to his application for post conviction relief. (P.C.O.R. at 317-339). Sergeant Gary Rini's affidavit was witnessed January 18, 1991. Captain Tom Bevel's affidavit was witnessed January 21, 1991. Herbert MacDonell's affidavit was witnessed November 13, 1991. He also appended three letters from Janet Halliburton, General Counsel for the Oklahoma State Bureau of Investigation (OSBI) to the Attorney General's Office and the Tulsa District Attorney dated November 18, 1992, May 6, 1993 and June 7, 1993. (P.C.O.R. at 314-316). This evidence was not available prior to Petitioner's formal sentencing on March 7, 1986.

Petitioner's conviction and sentence were affirmed by this Court on September 24, 1992. Rehearing was denied November 3, 1992. This Court held, on evidence then available, it was not error to qualify Ede as a blood spatter expert. Clayton, 840 P.2d at 28. Because Ede's credibility was challenged on appeal it is res judicata for post conviction review. Castro, 814 P.2d at 159; Coleman, 693 P.2d at 5; 22 O.S.1981, § 1086. 11 However, from the record it appears Petitioner was not aware of the particular problems with Ede's qualifications until June 7, 1993. 12 In the interest of justice we will address the issue of Ede's qualification as a blood spatter expert.

The purpose of expert testimony is to assist the jury to understand the evidence or determine a fact in issue. 12 O.S.1991, § 2702. Whether to qualify a witness as an expert is within the sound discretion of the trial court. Moore v. State, 788 P.2d 387, 397 (Okl.Cr.1990), cert. denied, 498 U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 182 (1990); Kennedy v. State, 640 P.2d 971, 977 (Okl.Cr.1982). Based on the information available at the time of trial Ede was properly qualified as an expert. See Clayton, 840 P.2d at 28. However, the letters and affidavits presented to the trial court in Petitioner's application for post conviction relief create serious doubt as to Ede's qualifications as a blood spatter expert. At trial Ede overstated his qualifications. (Transcript of Proceedings Case No. F-86-165 (hereinafter Trial Tr.) at 813-815). MacDonell's affidavit states Ede received insufficient training to qualify him as a blood spatter expert. Bevel's and Rini's affidavits also conclude Ede was not qualified to testify on this subject. We find most troubling the letters in which the OSBI disavows Ede as a blood spatter expert. Based on this new evidence we hold the trial court should have determined, on Petitioner's application for

Page 653

post conviction relief, that admission of Ede's blood spatter testimony was error.

The devastating impact of erroneous and incompetent expert testimony to a defendant cannot be overstated. See Fox v. State, 779 P.2d 562, 571 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990); McCarty v. State, 765 P.2d 1215, 1218 (Okl.Cr.1988). However, we will subject the admission of such erroneous testimony to harmless error analysis. McCarty, 765 P.2d at 1218; Brown v. State, 751 P.2d 1078, 1079-1080 (Okl.Cr.1988). After careful review of the trial and post conviction records and transcripts it is clear to us there was overwhelming evidence besides Ede's testimony to support the aggravating circumstance of heinous, atrocious or cruel and to preclude a manslaughter instruction.

This Court will affirm a finding of the aggravating circumstance of heinous, atrocious or cruel only in those cases where a murder is preceded by torture or serious physical abuse. Clayton, 840 P.2d at 30; Stouffer v. State, 742 P.2d 562, 563 (Okl.Cr.1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988), cert. denied, 503 U.S. 965, 112 S.Ct. 1573, 118 L.Ed.2d 217 (1992). Even disregarding Ede's testimony that two or three separate attacks on the victim occurred, ample evidence supported the finding the victim suffered serious physical abuse prior to death. Dr. Hemphill testified the victim suffered numerous wounds from stabbing, beating and choking. (Trial Tr. at 853-887). He testified the victim suffered the wounds when alive (Trial Tr. at 859), none of the wounds would produce instant death (Trial Tr. at 879), some of the wounds may have been defensive in nature (Trial Tr. at 883), the victim would have lived for fifteen to thirty minutes (Trial Tr. at 884), and that the victim could have seen if conscious. (Trial Tr. at 886-887). The victim's husband testified that upon entering the apartment he saw blood everywhere and followed a blood trail to his wife. (Trial Tr. at 585). When he found his wife she appeared to be looking at their baby. (Trial Tr. at 586). See also Clayton, 840 P.2d at 31.

This Court has held a trial court is required to instruct on lesser degrees of homicide only when warranted by the evidence. Hogan v. State, 877 P.2d 1157 ...

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18 practice notes
  • 204 P.3d 777 (Okla.Crim.App. 2009), F-2007-1240, Horn v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • 6 March 2009
    ...Hatch v. State, 1996 OK CR 37, 924 P.2d 284, 289. [19] Trim v. State, 1996 OK CR 1, 909 P.2d 841, 844; Clayton v. State, 1995 OK CR 3, 892 P.2d 646, 654. [20] Romer v. Evans, 517 U.S. at 632, 116 S.Ct. at 1627; Hatch, 924 P.2d at 289; Crawford v. State, 1994 OK CR 58, 881 P.2d 88, 90-91. [2......
  • 217 P.3d 116 (Okla.Crim.App. 2009), F-2008-236, Love v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • 30 June 2009
    ...v. State, 1996 OK CR 37, ¶ 20, 924 P.2d 284, 289. [13] Hatch, 1996 OK CR 37, ¶ 21, 924 P.2d at 289; Clayton v. State, 1995 OK CR 3, ¶ 17, 892 P.2d 646, 654. [14] Hatch, 1996 OK CR 37, ¶ 21, 924 P.2d at 289; Crawford v. State, 1994 OK CR 58, ¶ 5, 881 P.2d 88, 90; City of New Orleans v. Dukes......
  • 45 P.3d 96 (Okla.Crim.App. 2002), F-2000-638, Hubbard v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • 21 February 2002
    ...that the statute is constitutional, and place the burden on Appellants to demonstrate otherwise. Clayton v. State, 1995 OK CR 3, ¶ 15, 892 P.2d 646, 654. As for the due process argument, under the provisions of § 979a(A), the defendant has an opportunity to show why such costs should not be......
  • 60 P.3d 1048 (Okla.Crim.App. 2002), F-2001-1350, Sanders v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • 19 December 2002
    ...a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Clayton v. State, 892 P.2d 646, 657 (Okl.Cr.1995); Ashinsky v. State, 780 P.2d 201, 209 (Okl.Cr.1989). None of the assignments of error herein have merit; therefore, this a......
  • Free signup to view additional results
18 cases
  • 204 P.3d 777 (Okla.Crim.App. 2009), F-2007-1240, Horn v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • 6 March 2009
    ...Hatch v. State, 1996 OK CR 37, 924 P.2d 284, 289. [19] Trim v. State, 1996 OK CR 1, 909 P.2d 841, 844; Clayton v. State, 1995 OK CR 3, 892 P.2d 646, 654. [20] Romer v. Evans, 517 U.S. at 632, 116 S.Ct. at 1627; Hatch, 924 P.2d at 289; Crawford v. State, 1994 OK CR 58, 881 P.2d 88, 90-91. [2......
  • 217 P.3d 116 (Okla.Crim.App. 2009), F-2008-236, Love v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • 30 June 2009
    ...v. State, 1996 OK CR 37, ¶ 20, 924 P.2d 284, 289. [13] Hatch, 1996 OK CR 37, ¶ 21, 924 P.2d at 289; Clayton v. State, 1995 OK CR 3, ¶ 17, 892 P.2d 646, 654. [14] Hatch, 1996 OK CR 37, ¶ 21, 924 P.2d at 289; Crawford v. State, 1994 OK CR 58, ¶ 5, 881 P.2d 88, 90; City of New Orleans v. Dukes......
  • 45 P.3d 96 (Okla.Crim.App. 2002), F-2000-638, Hubbard v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • 21 February 2002
    ...that the statute is constitutional, and place the burden on Appellants to demonstrate otherwise. Clayton v. State, 1995 OK CR 3, ¶ 15, 892 P.2d 646, 654. As for the due process argument, under the provisions of § 979a(A), the defendant has an opportunity to show why such costs should not be......
  • 60 P.3d 1048 (Okla.Crim.App. 2002), F-2001-1350, Sanders v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • 19 December 2002
    ...a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Clayton v. State, 892 P.2d 646, 657 (Okl.Cr.1995); Ashinsky v. State, 780 P.2d 201, 209 (Okl.Cr.1989). None of the assignments of error herein have merit; therefore, this a......
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