Dewberry v. State

• Decision Date: 10 February 1998
• Docket Number: No. F-96-1251,F-96-1251
• Citation: 1998 OK CR 10,954 P.2d 774
• Parties: 1998 OK CR 10 Debra Sue DEWBERRY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 774

954 P.2d 774

1998 OK CR 10

Debra Sue DEWBERRY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-96-1251.

Court of Criminal Appeals of Oklahoma.

Feb. 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.

I. 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 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 Proposition XII as the Appellant relies upon the attachments to the [A]pplication [for Evidentiary Hearing] in support of her claims." Appellee's Motion to Strike at 2. Appellee "request(s) the application of the Appellant be stricken" or alternatively, requests "clarification of the proper utilization of the application in the filing of the direct appeal brief of the Appellant." Id. at 3. Appellee contends "the application should only be utilized in the event that [Appellant's] evidentiary hearing is granted by this Court." Id.

¶6 Appellant, on September 24, 1997, filed a response to Appellee's Motion to Strike. She argues the State's position is not well taken as Appellant is required to urge all available claims of error, whether or not such claims may appear in the record, or risk waiver of such claims in any subsequent post-conviction proceedings. Appellant thus maintains her Application for Evidentiary Hearing, its attachments, and the propositions of error in her brief-in-chief incorporating the application and attachments; are all necessary and are all valid Oklahoma appellate procedures. Review of this Court's Rules reveals Appellant is correct in her position. ²

¶7 Rule 3.11(B)(3)(b) of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1997), provides:

(b) When an allegation of the ineffective assistance of trial counsel is predicated upon an allegation of failure of trial counsel to properly utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of the trial, and a proposition of error alleging ineffective assistance of trial counsel is raised in the brief-in-chief of Appellant, appellate counsel may submit an application for an evidentiary hearing, together with affidavits setting out those items alleged to constitute ineffective assistance of trial counsel. This Court will utilize the following procedure in adjudicating applications regarding ineffective assistance of trial counsel based on evidence not in the record:

(i) In order to rebut the strong presumptions of regularity of trial proceedings and competency of trial counsel, the application and affidavits must contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.

¶8 Exactly as specified by this rule, appellate defense counsel submitted an application for evidentiary hearing and attached thereto a number of affidavits in support of the Application. Thus there is no procedural basis for Appellee's request to strike the Application and its accompanying exhibits. ³ That Appellant's proposition of error alleging ineffective assistance of trial counsel may be (in Appellee's words) "impossible to respond to" is not a legal basis for striking it or striking the Application for Evidentiary Hearing or striking Appellant's documentation in support of the proposition and Application. Moreover, Rule 3.11(B)(3)(b) requires Appellant raise "a proposition of error alleging ineffective assistance of trial counsel ... in the brief-in-chief" in order to seek an evidentiary hearing on the issue. It would be an absurd result indeed to require an appellant's counsel to first raise the issue of ineffectiveness in his brief-in-chief but then not allow him or her to argue all the circumstances supporting it.

¶9 Some of the confusion herein may lie from failure to recognize when the supplementation-of-the-record portion of Rule 3.11(B)(3)(b) comes into play. Reference to subsections (ii) through (v) of that rule reveal that once the Court has found a strong possibility trial counsel was ineffective, "it shall remand the matter to the trial court for an evidentiary hearing." Rule 3.11(B)(3)(b)(ii). It is the record from this evidentiary hearing which will be that which supplements the trial court record on appeal. The instruments filed in support of a request for evidentiary hearing are not considered, by reason of their filing with this Court, part of the trial record. If the items are not within the existing record, then only if they are properly introduced at the evidentiary hearing will they be a part of the trial court record on appeal. The record on appeal must remain as only that which has been presented through the trial court. All else must be considered as nothing more than appellate advocacy.

¶10 IT IS THEREFORE THE ORDER OF THIS COURT that to the extent Appellee's September 15, 1997 Motion to Strike requests that all or portions of Appellant's Propositions XI and XII be stricken and that Appellant's Application for Evidentiary Hearing and its attachments be stricken, the Motion should be, and hereby is, DENIED. The decision upon the merits of Appellant's Application for Evidentiary Hearing shall be submitted in conjunction with the appeal's submission for decision.

II. Appellee's Motion to Strike Attachments to Appellant's Brief

¶11 A portion of Appellee's September 15, 1997 Motion to Strike contains a request that the two attachments marked as "Appendix A" and "Appendix B" to Appellant's brief-in-chief be stricken as they "are not part of the record on appeal; thus, such documents are not properly before the Court." Appellee's Motion to Strike at 3-4. Appellant's brief when referencing these appendices does not cite to any portion of the appellate record where these items may be found. It thus appears Appellee is correct in its position that these items are indeed not a part of the record on appeal. ⁴ As such it is improper that they be considered in this appeal.

¶12 IT IS THE FURTHER ORDER OF THIS COURT that "Appendix A" and "Appendix B" of Appellant's brief-in-chief be stricken.

III. Appellee's "Motion to File Brief in Excess of Fifty Pages"

¶13 On October 15, 1997, counsel for Appellee tendered for filing her answer brief titled "Brief of Appellee." This Brief is fifty-two pages in length, excluding its certificate of mailing. In her "Motion to File Brief in Excess of Fifty Pages," counsel states the brief-in-chief of Appellant is fifty-three pages in length and contains twelve propositions in error and that the issues raised are "of particular complexity requiring a detailed and lengthy response." Motion to File Brief at 1.

¶14 IT IS THE FURTHER ORDER...