934 P.2d 1093 (Okla.Crim.App. 1997), PC-96-1129, Rogers v. State

Docket Nº:PC-96-1129.
Citation:934 P.2d 1093
Party Name:Kelly Lamont ROGERS, Petitioner, v. The STATE of Oklahoma, Respondent.
Case Date:February 25, 1997
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 1093

934 P.2d 1093 (Okla.Crim.App. 1997)

Kelly Lamont ROGERS, Petitioner,


The STATE of Oklahoma, Respondent.

No. PC-96-1129.

Court of Criminal Appeals of Oklahoma.

February 25, 1997.

Page 1094

Dora Roberts, Appellate Defense Counsel, Capital Post-Conviction Division, Oklahoma Indigent Defense System, Norman, for Petitioner.



CHAPEL, 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

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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. Rogers appealed his judgments and sentences to this Court and we affirmed. 1 This Court denied Rogers's petition for rehearing and the United States Supreme Court denied Rogers's petition for certiorari. 2

On September 16, 1996, Rogers filed an Application for Post-Conviction Relief directly with this Court. 3 The only issues that can be raised in post-conviction are those which: "(1) [w]ere not and could not have been raised in a direct appeal, and (2) support a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 4 This Court reviews each application to determine: "(1) whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist; (2) whether the applicant's grounds were or could have been previously raised; and (3) whether relief may be granted...." 5 The Post-Conviction Procedure Act is not intended to provide a second appeal. 6 We will consider neither issues raised on direct appeal and therefore barred by res judicata, 7 nor issues waived because they could have been raised on direct appeal but were not. 8 We will not address Rogers's propositions which are barred by waiver or res judicata. 9

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In Proposition I Rogers claims that the recent amendments to the Oklahoma capital post-conviction procedures deny equal access to the courts and deprive Rogers of due process, and that their retroactive application violates the ex post facto clause. The new procedures violate neither principles of due process and equal protection nor the ex post facto clause. 10 This proposition is denied.

In Proposition VI Rogers claims that the "clear and convincing" standard of evidence applied in the trial court's evaluation of his competency to stand trial violates his right to due process. Rogers bases this claim on Cooper v. Oklahoma, 11 in which the United States Supreme Court held that Oklahoma's "clear and convincing" standard of evidence violated fundamental due process rights. We have declined to apply Cooper on post-conviction review. 12 This proposition is denied.

The remainder of Rogers's propositions 13 are based on his claim that the trial court erred in denying him state funds for an investigator and experts and in alternatively refusing to appoint counsel from the Oklahoma Indigent Defense System (OIDS) to represent him at trial. This Court denied this proposition on direct appeal. 14 We held Rogers's right to equal protection was not violated when the trial court denied funds and refused to transfer the case to OIDS, and found Rogers had made no showing that he was harmed by the lack of expert assistance. Trial counsel had requested an investigator, a forensics expert, and a medical expert, but did not claim that he needed the latter to determine or testify regarding Rogers's mental state or abilities. On post-conviction Rogers recharacterizes trial counsel's request and claims he was entitled to a medical expert to investigate and explain his mental

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deficiencies. Rogers contends that the outcome of both trial and sentencing stages would have been different had the jury heard mental health testimony from a medical expert. Rogers has provided the Court with affidavits to support his claim that determination of these issues, along with his claim of ineffective assistance of trial counsel, require fact-finding outside the direct appeal record. This material constitutes part of the record before us on post-conviction, and we have reviewed it to determine if this issue must be remanded to the district court for a hearing. 15

Rogers insists this issue is properly before the Court because the results of a post-conviction neuropsychological examination either show how he was harmed by lack of a medical expert, or justify an evidentiary hearing to develop evidence which would show how he was prejudiced by the trial court's failure to grant funds for experts. Rogers relies on an affidavit from Dr. Gelbort. He argues that Dr. Gelbort's findings and conclusions support his claim that a medical expert was necessary on the issue of mental health, and notes that Dr. Gelbort has formed an opinion on how the outcome of the case may have been affected by the lack of this information at trial. Rogers seems to have mistaken the point of medical examination. Whether, and how, the outcome of a case may have been affected by presentation of evidence is a determination for this Court; in making that determination, we may consider a medical expert's opinion as to a defendant's mental state, including any findings, conclusions, and diagnoses. Although Rogers claims Dr. Gelbort has made a diagnosis of organic brain damage, that is not reflected in the affidavit. We have considered Dr. Gelbort's affidavit and cannot conclude that it either constitutes a showing sufficient to require appointment of an expert, or raises issues which require an evidentiary hearing. The material presented to this Court neither raises any controverted, previously unresolved factual issue material to the legality of Rogers's confinement, nor supports a conclusion that if it had been presented at trial the outcome would have been different.

In Proposition IV Rogers claims that newly discovered evidence, coupled with Dr. Gelbort's evidence, requires a new trial. The revised post-conviction procedure act contains no specific provision for review of newly discovered evidence. 16 We will not consider this proposition unless we find that the evidence raises any controverted, previously unresolved factual issue material to the legality of Rogers's confinement. We have already determined that Dr. Gelbort's affidavit does not constitute such evidence. Rogers suggests that his medical records constitute new evidence, but that evidence was discovered by and available to trial counsel. Rogers primarily relies on his recent discovery that Dr. Goodman, the State's mental health expert, who never testified, was largely paid out of a District Attorney's Association fund, and that fund provided the State extra money to prepare for trial. Rogers fails to show why this information could not have been discovered earlier with reasonable diligence. 17 Although Rogers apparently claims the paper trail confirming payment was not made until after the direct appeal was pending, these documents were written in January

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and February, 1992, before Rogers's brief on direct appeal was filed. This issue has been waived, and this proposition is denied. 18

In Proposition V Rogers alleges that he received ineffective assistance of trial counsel because his confession was admitted without a Jackson v. Denno 19 hearing. Ineffective assistance of trial counsel claims raised in capital post-conviction appeals are waived unless they require fact-finding outside the direct appeal record. 20 Rogers has failed to demonstrate that the facts supporting his trial counsel ineffectiveness claim were not available to his direct appeal attorney. Accordingly, this claim has been waived.

Rogers next asserts that his direct appeal attorney was ineffective for failing to raise the Jackson-Denno issue. In assessing claims of ineffective assistance of appellate counsel, our threshold inquiry is whether counsel actually committed the act giving rise to the allegation. 21 As the record confirms appellate counsel failed to raise the Jackson-Denno issue on appeal, we ask whether this omission was deficient under the first prong of the two-pronged test in Strickland. 22 Rogers presents no facts showing that counsel's conduct in failing to raise this argument on direct appeal was unreasonable under the circumstances or did not fall within the wide range of professional assistance. Counsel's mere failure to raise an arguably meritorious claim will not, standing alone, constitute ineffective assistance. 23 Rogers has not established that appellate counsel was ineffective for failing to raise this issue. Roger's substantive claims concerning his statements to police remain procedurally barred and are not considered on their merits. 24 We do not find that, if these allegations of ineffective assistance were true, appellate counsel's performance would constitute the denial of reasonably competent assistance under prevailing professional norms. 25 This proposition is denied.

Rogers also requests an evidentiary hearing and post-conviction...

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