954 P.2d 774 (Okla.Crim.App. 1998), F-96-1251, Dewberry v. State

Docket Nº:F-96-1251.
Citation:954 P.2d 774
Party Name:Debra Sue DEWBERRY, Appellant, v. The STATE of Oklahoma, Appellee.
Case Date:February 10, 1998
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 774

954 P.2d 774 (Okla.Crim.App. 1998)

Debra Sue DEWBERRY, Appellant,

v.

The STATE of Oklahoma, Appellee.

No. F-96-1251.

Court of Criminal Appeals of Oklahoma.

February 10, 1998.

ORDER

¶1 On December 30, 1996, Appellant, through counsel, filed her Petition in Error herein initiating an appeal of convictions entered against her in Oklahoma County District Court, Case No. CF-94-7440-61. The convictions appealed are for Malice Murder in the First Degree and for Illegal Disposal of a Body. A sentence of imprisonment for life without parole and a sentence of five years imprisonment were respectively entered on October 3, 1996. (O.R.187) According to the Information, Appellant inflicted "mortal wounds" upon "Baby Girl Dewberry, a newborn child, by giving birth to Baby Girl Dewberry while sitting on a toilet, and then placing Baby Girl Dewberry inside a plastic bag and discarding her into a garbage can." (O.R.1) Appellant at trial contended the baby was stillborn.

¶2 Currently pending herein are several motions requiring disposition or scheduling before this appeal may be submitted for decision. Set forth below is a summary of each of these motions and this Court's order concerning each motion.

  1. Appellant's "Application for Evidentiary Hearing and Motion to Supplement"

    ¶3 In this appeal, Appellant is represented by Wendell B. Sutton, Oklahoma County Assistant Public Defender. At trial, Appellant was represented by different counsel, but counsel who was also an Oklahoma County Assistant Public Defender. Proposition XI of Appellant's brief-in-chief reads: "MS. DEWBERRY WAS DENIED REASONABLY EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE FEDERAL AND OKLAHOMA CONSTITUTIONS." Appellant's brief-in-chief at 48. Appellant's allegations of ineffective assistance of trial counsel are predicated in part upon matters outside the existing trial court record and upon allegations that trial counsel "failed to perform her 'duty to make

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    reasonable investigations.' " Id. at 51. Proposition XII of Appellant's brief-in-chief reads: "AN EVIDENTIARY HEARING IS NEEDED ON ANY ISSUE RAISED HEREIN WHICH WAS WAIVED OR INADEQUATELY PRESERVED OR THE RECORD INADEQUATELY DEVELOPED FOR REVIEW ON DIRECT APPEAL INCLUDING, BUT NOT LIMITED TO, THE SPECIFIC ACTS OR OMISSIONS RAISED IN PROPOSITION XI."

    ¶4 Pursuant to Rule 3.11(B)(3)(b) of the Rules of the Oklahoma Court of Criminal Appeals, Title 22 Ch. 18, App. (1997), appellate counsel on June 10, 1997 (simultaneously with the tendering of Appellant's brief-in-chief herein), 1 filed an "Application for Evidentiary Hearing and Motion to Supplement." In support of this Application, Appellant attached a number of items marked by Appellant as Exhibits "A" through "O." These items consist of several affidavits, an investigative report by an employee of the Child Welfare Division of the Oklahoma Department of Human Services, two newspaper articles, and a hand written document entitled "Character References." Appellant's Application contends these items constitute the "clear and convincing evidence" necessary under Rule 3.11(B)(3)(b)(i) to demonstrate a strong possibility trial counsel was ineffective. Accordingly, Appellant urges this Court to so find and to order an evidentiary hearing to fully address the ineffectiveness issue.

    ¶5 On September 15, 1997, Appellee filed a "Motion to Strike Reference to Evidence Outside of the Record, or in the Alternative, Motion for Clarification." Therein, Appellee complains "that it is impossible to respond to most of the allegations raised in Proposition XI and the allegation raised in...

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