893 P.2d 504 (Okla.Crim.App. 1995), C-91-309, Wallace v. State

Docket Nº:C-91-309.
Citation:893 P.2d 504
Party Name:George Kent WALLACE, Appellant, v. The STATE of Oklahoma, Appellee.
Case Date:March 27, 1995
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 504

893 P.2d 504 (Okla.Crim.App. 1995)

George Kent WALLACE, Appellant,

v.

The STATE of Oklahoma, Appellee.

No. C-91-309.

Court of Criminal Appeals of Oklahoma.

March 27, 1995.

Page 505

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An Appeal from the District Court of LeFlore County; Ted A. Knight, Associate District Judge.

GEORGE KENT WALLACE, Appellant, entered pleas of guilty to two charges of Murder in the First Degree (21 O.S.Supp.1982, § 701.7(A) and 21 O.S.Supp.1989, § 701.7(A) in LeFlore County Cases No. CRF-91-1 and CRF-91-2. Following a sentencing hearing, the trial court found the presence of three aggravating circumstances: Appellant had previously been convicted of a violent felony (21 O.S. § 701.12(1)); the murders were especially heinous, atrocious or cruel (21 O.S. § 701.12(4)); and Appellant posed a continuing threat to society (21 O.S. § 701.12(7)). At a formal sentencing hearing, Appellant was sentenced to die by lethal

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injection. From these judgments and sentences this Court has conducted a Mandatory Sentence Review. AFFIRMED.

Jeffrey C. Smith, Poteau, Trial Counsel, for appellant at trial.

Anne M. Moore, Asst. Appellate Public Defender, Norman, Appellate Counsel, for appellant on appeal.

Mike Sullivan, Dist. Atty., Poteau, Trial Counsel, for appellee at trial.

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

OPINION ON MANDATORY SENTENCE REVIEW, ISSUANCE OF MANDATE,AND SETTING OF EXECUTION DATE

LUMPKIN, Judge:

Appellant George Kent Wallace entered a plea of guilty to two charges of Murder in the First Degree (21 O.S.Supp.1982, § 701.7(A) and 21 O.S.Supp.1989, § 701.7(A) in LeFlore County Cases No. CRF-91-1 and CRF-91-2. The Hon. Ted A. Knight, Associate District Judge, ordered he be sentenced to death by lethal injection on each count.

This case is somewhat unique, in that Appellant presented no defense during his sentencing hearing; and in fact requested the death penalty. In Grasso v. State, 857 P.2d 802 (Okl.Cr.1993), we addressed the situation which arises when a defendant does not wish to pursue his direct appeal. Here, we are presented with a problem peripherally addressed in Grasso: whether a criminal defendant can waive the presentation of mitigating evidence without running afoul of the ban against arbitrary and unreliable application of the death penalty implicit in the Eighth Amendment to the United States Constitution. See Id., 857 P.2d at 814 n. 5 (Chapel, J., Specially Concurring). We hold he can.

I.

Appellant's conviction in the murders of two teen-age boys, William Von Eric Domer (CRF-91-1) and Mark Anthony McLaughlin (CRF-91-2) culminates a decades-long string of brutal, sadistic assaults.

In providing a factual basis for the Domer murder, Appellant told the court: "Basically, I picked the boy up, took him out to a secluded area, beat him, and then shot him." He accomplished this on February 17, 1987, by posing as a police officer, picking up the 15-year-old Domer in Arkansas, handcuffing and shackling him, and transporting him across the state line to Leard Pond near Pocola in LeFlore County, Oklahoma. There, he pulled down the boy's pants and underwear and began beating him with a paddle. When Domer resisted, he pulled up the boy's pants, got him out of the car, walked him to a nearby cemetery, and shot him twice in the back with a .25 caliber semiautomatic pistol. He then put the body in the pond.

The Mark Anthony McLaughlin murder occurred November 11, 1990 (Appellant had been in prison for a non-related offense in the interim). Appellant told the court: "Impersonating an officer, I picked him up in Van Buren [Arkansas], shackled him, took him out to Leard Pond, beat him, shot him, and then put him in the pond." As with Domer, Appellant first pulled down McLaughlin's pants and underwear and beat him, this time with a handle of a plunger used to unstop clogged drains and toilets. After the beating, he pulled up the 14-year-old boy's pants, got him out of the car and shot him once in the back with a .22 caliber pistol as they walked toward the pond. He would have shot him again, but the gun jammed. In each case, he had rented a car and had gone out specifically looking for someone to beat. He told investigators after his arrest that if he had not been caught, he would have killed again.

Appellant was apprehended by Arkansas authorities on December 9, 1990. Earlier that evening, Appellant had again posed as a police officer and had "arrested" Ross Allen Ferguson, who had recently graduated from high school. He transported the handcuffed and shackled Ferguson to an isolated place, pulled down his pants and underwear, and beat him with the same plunger handle he had used on McLaughlin. After the beating, he got Ferguson out of the car and began walking him down the road. Ferguson was

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aware of the McLaughlin murder, and asked Appellant if he were going to shoot him now. Appellant smiled and said he would not shoot Ferguson; he then stabbed him. Ferguson pretended to be dead and allowed himself to be dragged to a nearby pond, where Appellant removed the handcuffs and shackles. Ferguson then was able to surprise Appellant, run up to the car, drive it away and notify authorities. Appellant was arrested near the scene some 45 minutes later.

Appellant was returned to Oklahoma in late January 1991. He ignored his court-appointed attorney's advice and told authorities details of each murder. He also told them he wanted to receive the death penalty, preferring it to a lifetime in prison. The magistrate ordered Appellant evaluated to determine competency. After a hearing at which he was determined competent, Appellant waived preliminary hearing on February 13, 1991. Despite the earlier determination of competency and against the protests of both the prosecutor and Appellant's attorney, the trial court again ordered a "full psychological evaluation at Eastern State Hospital upon an application to determine competency," appointing an amicus curiae to represent Appellant during the competency proceedings. Appellant was again declared competent. The next day, on March 12, 1991, Appellant pled guilty to both murders. The court ordered a pre-sentence investigation.

At a sentencing hearing on April 4, 1991, the court found three aggravating circumstances: Appellant had previously been convicted of a violent felony (21 O.S. § 701.12(1)); the murders were especially heinous, atrocious or cruel (21 O.S. § 701.12(4)); and Appellant posed a continuing threat to society (21 O.S. § 701.12(7)). Formal sentencing was delayed for the preparation of a presentence investigation until April 12, 1991, at which time Appellant was sentenced to die by lethal injection.

Appellant made it clear he did not want to appeal his convictions; indeed, he signed a waiver to that effect the day of formal sentencing. 1 The trial court on May 7, 1991, appointed the Oklahoma Indigent Defense System to represent him on appeal. This Court on July 9, 1991, remanded for an evidentiary hearing to determine Appellant's representation and to determine whether Appellant had in fact waived all appeals but his mandatory sentence review. The trial court filed its Findings and Conclusions with this Court on July 29, 1991, observing Appellant "has stated he wishes to waive all appeals other than the mandatory review of his sentence. He has not retracted those statements and this is his position even as of today." Despite that declaration, the trial court found there were issues which should be raised; and decided "he should be allowed a direct appeal of all issues in this matter." 2 This Court granted an appeal out of time on August 29, 1991. 3 However, Appellant did

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not file an application to withdraw his plea of guilty, which is a jurisdictional requirement for a certiorari appeal from a plea of guilty. See 22 O.S.1991, Ch. 18, App. Rules of the Court of Criminal Appeals, Rule 4.1. Therefore, the case is only before this Court for mandatory sentence review. See 21 O.S.1991, § 701.13.

At no time did Appellant present, or allow his attorney to present, any mitigating evidence on his behalf. That is the subject of the first proposition.

II.

A.

Appellant's attorney argues the Eighth Amendment to the United States Constitution requires the sentencer to consider mitigating evidence to reach a rational and individualized determination of the appropriate sentence; and because Appellant refused to present such evidence, the death sentence was imposed in an arbitrary and unreliable manner.

It is beyond question mitigating evidence is critical to the sentencer in a capital case. See Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, none of the United States Supreme Court cases cited by Appellant deal with the situation which occurs when a defendant willingly and knowingly refuses to place any mitigating evidence before the sentencer.

Appellant does not contest a defendant may waive his right to present mitigating evidence. We agree. See Singleton v. Lockhart, 962 F.2d 1315, 1322 (8th Cir.1992) (In dealing with the issue of incompetent counsel, the court stated: "If a defendant may be found competent to waive the right of appellate review of a death sentence, we see no reason why a defendant may not also be found competent to waive the right to present mitigating evidence that might forestall the imposition of such a sentence in the first instance."); Silagy v. Peters, 905 F.2d 986, 1008 (7th Cir.1990) (Discussing a defendant's right to proceed pro se, the court observed: "The implication...

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