915 P.2d 922 (Okla.Crim.App. 1996), PC-95-551, Boyd v. State

Docket Nº:PC-95-551.
Citation:915 P.2d 922
Party Name:Ronald Keith BOYD, Appellant, v. STATE of Oklahoma, Appellee.
Case Date:April 09, 1996
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 922

915 P.2d 922 (Okla.Crim.App. 1996)

Ronald Keith BOYD, Appellant,

v.

STATE of Oklahoma, Appellee.

No. PC-95-551.

Court of Criminal Appeals of Oklahoma.

April 9, 1996.

Page 923

[Copyrighted Material Omitted]

Page 924

E. Melvin Porter, Oklahoma City, for Defendant at trial.

Robert Macy, District Attorney, Ray Elliot, Assistant District Attorney, Oklahoma City, for State at trial.

David Autry, Oklahoma City, for Petitioner on appeal.

W.A. Drew Edmondson, Attorney General, Sandra D. Howard, Assistant Attorney General, Oklahoma City, for Respondent on appeal.

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

CHAPEL, Vice Presiding Judge:

Ronald Keith Boyd appeals from an order of the District Court of Oklahoma County denying his application for post-conviction relief in Case No. CRF-86-218. Boyd was convicted by jury of Murder in the First Degree, malice aforethought, 21 O.S.1981, § 701.7(B) (Count I), and Robbery With Firearms, 21 O.S.1981, § 801 (Count II). After finding the aggravating circumstances that Boyd committed the murder for the purpose of avoiding or preventing a lawful arrest or prosecution, that he probably would commit criminal acts of violence that would constitute a continuing threat to society, and that the victim was a peace officer killed in performance of official duty, the jury recommended and the Honorable James L. Gullett imposed a sentence of death on Count I and fifty years imprisonment on Count II.

This Court affirmed Boyd's convictions and sentences, 1 and subsequently denied his petition for rehearing. The United States Supreme Court denied Boyd's petition for writ of certiorari on June 21, 1993. 2 Boyd is now before us on appeal from the Oklahoma County District Court's March 7, 1995, denial of his Application for Post-Conviction Relief.

The Post-Conviction Procedure Act 3 outlines procedures for a defendant to challenge a conviction and sentence after resolution of the direct appeal. The Act is not intended to provide a second appeal. 4 This Court will neither consider an issue raised on direct appeal and therefore barred by res judicata, nor will it consider an issue which has been waived because it could have been raised on direct appeal but was not. 5 We will not address Boyd's propositions which are barred by common law principles of waiver or res judicata. 6

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In Proposition II Boyd argues that appellate counsel was ineffective in 1) failing to raise certain substantive issues on direct appeal; and 2) failing to raise specific instances of ineffective assistance of trial counsel, outlined in Proposition I, on direct appeal. Because this is Boyd's first opportunity to raise the issue of ineffective assistance of appellate counsel, the substantive grounds supporting his claim are not procedurally barred. 7

To prevail on a claim of ineffective assistance of counsel Boyd must show 1) counsel's representation fell below an objective standard of reasonableness and 2) the reasonable probability that, but for counsel's errors, the results of the proceedings would have been different. 8 Appellate counsel must raise relevant issues for this Court to consider and address, but need not raise every non-frivolous issue; appellate propositions are adequate if they contain relevant legal arguments supported by pertinent facts and authority. 9 Boyd must establish that appellate counsel failed to raise issues warranting reversal, modification of sentence, or remand for resentencing. 10 Where a claim of ineffectiveness can be disposed of through lack of prejudice this Court need not determine whether counsel's performance was deficient. 11 In reviewing this claim, we apply a strong presumption that Boyd's counsel's conduct fell within the wide range of reasonable professional assistance; we defer to the strategic decisions of trial and appellate counsel and will assess counsels' legal performance as of the time it was given. 12

Boyd first argues appellate counsel was ineffective for failing to raise four meritorious claims: 1) issues arising from two State witnesses' expert testimony; 2) issues regarding an instruction on unadjudicated offenses in the second stage of trial; 3) specific comments alleged to be prosecutorial misconduct, as outlined in Proposition IV; and 4) the issue of accomplice instructions.

Our review of these claims reveals that none of them meet both Strickland requirements. First, the record does not support Boyd's claim that the expert witnesses gave unreliable and misleading evidence. Contrary to his assertion, nothing in the materials before the Court suggests that Officer Golightly's testimony was demonstrably false; also, Dr. Choi's testimony is contained entirely within the trial record and is neither groundless nor misleading. The jury instruction

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on unadjudicated offenses, while not found in the Oklahoma Uniform Jury Instructions, did not misstate the law. Of the comments cited to support Boyd's claim of prosecutorial misconduct, most are comments on the evidence presented and within the wide latitude afforded for closing argument. One comment was raised and rejected as error on direct appeal. 13 Of the others, only one was met with objection; that comment was arguably based on evidence presented and not in itself reversible, and review of the other comments shows no plain error. Finally, the issue of accomplice instructions (which is based entirely on the trial record) is without merit. Boyd fails to show how witness Gibbs could have been charged as an accomplice or how he was prejudiced by absence of the instruction as to Gibbs, concentrating his argument on witness Jackson. Jackson was originally charged in this case with felony murder, but the trial court sustained his demurrer to the evidence at preliminary hearing, finding no evidence Jackson participated in the underlying felony. Because Jackson had already been charged with the crime and that charge had been dismissed for insufficient evidence, he could not have been charged as an accomplice at the time of trial. Counsel could not be ineffective for failing to request the instruction.

Boyd also claims appellate counsel was ineffective for failing to raise ten specific instances of ineffective assistance of trial counsel: 1) failure to adequately cross-examine and impeach Officer Golightly; 2) failure to adequately cross-examine Dr. Choi; 3) failure to use photographs of the crime scene to establish material facts favorable to the defense; 4) failure to adequately cross-examine and impeach Gericke; 5) failure to use available evidence to impeach Jackson's claim he saw Boyd shoot the victim; 6) failure to adequately cross-examine Gibbs; 7) failure to investigate and produce readily available evidence favorable to the defense; 8) failure to introduce Dunn's criminal and substance abuse history; 9) failure to use a crime scene diagram to rebut the State's theory that Boyd shot the victim; 10) failure to offer evidence in the second stage of trial regarding a) an informant's statement; b) evidence Boyd had not been convicted of a violent crime; and c) mitigating evidence.

A claim of ineffective assistance of counsel based on matters presented to the trial court and included in the record on appeal should be raised on direct appeal, and is waived if not raised at that time. 14 The facts giving rise to Boyd's first (in part), second, sixth, and eighth (in part) claims of error are contained within the appellate record. These claims could have been raised on direct appeal and have been waived.

Regarding the remaining claims, Boyd argues that trial counsel was ineffective in failing to use information in the State's files and available to him at the time of trial to effectively cross-examine State witnesses or develop facts favorable to the defense. We have carefully considered each of these claims and, without addressing each on the merits, find that they do not raise issues which warrant reversal, modification of sentence, or remand for resentencing. We will not second-guess trial counsel's strategic decisions, which fall within the parameters of reasonable professional competence. 15 Appellate counsel was not ineffective in failing to raise these issues.

Boyd also claims trial counsel erred in failing to consult a weapons expert to refute the State's claims regarding the gun identified as the murder weapon....

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