Hain v. State

• Decision Date: 01 May 1998
• Docket Number: No. PC-97-611,PC-97-611
• Citation: 962 P.2d 649
• Parties: 1998 OK CR 27 Scott Allen HAIN, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 649

962 P.2d 649

1998 OK CR 27

Scott Allen HAIN, Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-97-611.

Court of Criminal Appeals of Oklahoma.

May 1, 1998.

Robert Wade Jackson, Steven M. Presson, Norman, on appeal.

No response necessary from the State.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF

LUMPKIN, Judge:

¶1 Petitioner Scott Allen Hain was convicted of two counts of First Degree Murder (21 O.S.1981, § 701.7), two counts of Kidnapping (21 O.S.1981, § 741), two counts of Robbery with a Firearm (21 O.S.1981, § 801), one count of Third Degree Arson (21 O.S.1981, § 1403) and two counts of Larceny of an Automobile (21 O.S.1981, § 1720), Case No. CRF-87-240, in the District Court of Creek County. The jury found the existence of three aggravating circumstances and recommended the punishment of death for each murder conviction. In Hain v. State, 852 P.2d 744 (Okl.Cr.1993), this Court reversed with instructions to dismiss the conviction for Robbery with Firearms and affirmed all other convictions. The death sentences imposed for the murder convictions were vacated and the case was remanded to the District Court for new second-stage proceedings. In the retrial of the sentencing stage, the jury found the existence of three aggravating circumstances and recommended the punishment of death for each count of murder. This Court affirmed the death sentences in Hain v. State, 919 P.2d 1130 (Okl.Cr.1996). Petitioner filed his Original Application for Post-Conviction Relief in this Court on September 10, 1997, in accordance with 22 O.S.Supp.1995, § 1089.

¶2 Before considering Petitioner's claims, we must reiterate the narrow scope of review available under the amended Post-Conviction Procedure Act. As we have said numerous times,

the Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 933 P.2d 327, 330 (Okl.Cr.1997) (interpreting Act as amended); Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995) (same conclusion under Act before amendments). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims which could have been raised in previous appeals but were not are generally waived; and claims raised on direct appeal are res judicata. Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994), cert. denied, 516 U.S. 840, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992).

Conover v. State, 942 P.2d 229, 230 (Okl.Cr.1997). These procedural bars still apply under the amended Act. We have noted the new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker, 933 P.2d 327, 331 (Okl.Cr.1997). Under 22 O.S.Supp.1995, § 1089(C)(1), only claims which "[w]ere not and could not have been raised" on direct appeal will be considered. A capital post-conviction claim could not have been raised on direct appeal if (1) it is an ineffective assistance of trial or appellate counsel claim which meets the statute's definition of ineffective counsel; or (2) the legal basis of the claim was not recognized or could not have been reasonably formulated from a decision of the United States Supreme Court, a federal appellate court or an appellate court of this State, or is a new rule of constitutional law given retroactive effect by the Supreme Court or an appellate court of this State. 22 O.S.Supp.1995, §§ 1089(D)(4)(b), 1089(D)(9).

Should a Petitioner meet this burden, this Court shall consider the claim only if it "[s]upport[s] a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 22 O.S.Supp.1995, § 1089(C)(2). As we said in Walker,

The amendments to the capital post-conviction review statute reflect the legislature's intent to honor and preserve the legal principle of finality of judgment, and we will narrowly construe these amendments to effectuate that intent. Given the newly refined and limited review afforded capital post-conviction applicants, we must also emphasize the importance of direct appeal as the mechanism for raising all potentially meritorious claims. Because the direct appeal provides appellants their only opportunity to have this Court fully review all claims of error which might arguably warrant relief, we urge them to raise all such claims at that juncture.

933 P.2d at 331 (footnote omitted, emphasis in original). We now turn to Petitioner's claims. ¹

¶3 Propositions I, VIII, IX, X and XII were raised in the direct appeal, therefore further consideration is barred by res judicata. In Proposition I, Petitioner asserts the introduction of gruesome and unfairly prejudicial photographs of the victims violated his Eighth and Fourteenth Amendment rights and deprived him of a fair trial. In Proposition VIII, Petitioner asserts the aggravating circumstance of "continuing threat" was not supported by sufficient evidence and improper instructions were given by the trial court. ² In Proposition IX he claims the aggravating circumstance of "especially, heinous, atrocious or cruel" failed to provide definite guidance which would limit the discretion of the sentencer and is therefore unconstitutional. In Proposition X, he argues the aggravating circumstance of "great risk of death" was not supported by sufficient evidence, the aggravator was unconstitutional as overbroad and indiscriminately applied, and it was proved with the same evidence used to support the charged offense. In Proposition XII, Petitioner asserts the second stage jury instructions could have been reasonably interpreted by the jury to mean that a death sentence was mandatory if aggravating circumstances outweighed mitigating circumstances. ³

¶4 Propositions II, III, IV, V, VII and XI are waived as they were not raised on direct appeal but could have been. In Proposition II, Petitioner claims the admission of co-defendant Lambert's statements deprived him of a fair trial. In Proposition III he ¶5 Petitioner also claims the arguments contained in Propositions VII, VIII, X and XII were not raised at trial and therefore he was denied the effective assistance of trial counsel. Additionally, Petitioner claims that to the extent any of the above arguments either (1) could have been raised on direct appeal but were not or (2) were raised in a manner different than that raised by post-conviction counsel, he was denied the effective assistance of appellate counsel. These claims of ineffective assistance of trial and appellate counsel are reiterated in Proposition XIII. In that proposition Petitioner also acknowledges that a claim of ineffective assistance of counsel was not raised on direct appeal and notes that trial counsel and appellate counsel were one in the same.

claims the improper comments of the prosecutor denied him a fair trial. In Proposition IV he asserts the trial court gave an inaccurate instruction on voluntary intoxication which denied him a fair trial. In Proposition V Petitioner argues prosecutorial misconduct occurred when the State called co-defendant Lambert as a witness and pointed out to the jury that Lambert had refused to testify by invoking his Fifth Amendment rights. He argues in Proposition VII that the trial court gave a fundamentally flawed insanity instruction and in Proposition XI that the convictions for felony murder, crimes not alleged in the information, deprived him of a fair notice and the opportunity to defend in violation of his Sixth, Eighth and Fourteenth Amendment rights.

¶6 The only reason a claim of ineffective assistance of trial counsel cannot be raised on direct appeal is if it "requires factfinding outside the direct appeal record." 22 O.S.Supp.1995, § 1089(D)(4)(b)(1). See also Walker, 933 P.2d at 332. "Stated in prohibitive terms, this Court may not review [Petitioner's] post-conviction claims of ineffective assistance of trial counsel if the facts generating those claims were available to [Petitioner's] direct appeal attorney and thus either were or could have been used in his direct appeal." Walker, 933 P.2d at 332. The category of items requiring fact-finding outside the direct appeal record does not include those items that trial counsel had the ability to discover. McGregor v. State, 935 P.2d 332, 335 (Okl.Cr.1997). We made it clear that the mere absence of claims from the direct appeal record was not sufficient, the claim would still be waived if "the facts contained in them were available to his direct appeal attorney and thus could have been argued on direct appeal." Id. No exception is made in the statute for the situation where trial counsel and appellate counsel are the same. See Neill v. State, 943 P.2d 145, 147 (Okl.Cr.1997).

¶7 In the present case, the information forming the basis of the above claims was either available to direct appeal counsel, ⁴ or could have been obtained by counsel for purposes of raising the issues on appeal. Because the basis for this claim does not require factfinding outside the scope of information available to counsel at the time of the direct appeal, Petitioner's claims of ineffective assistance of trial counsel are waived because they could have been raised on direct appeal but were not.

¶8 As for the claims of ineffective assistance of appellate counsel, a three-prong test was set forth in Walker to review such claims. ⁵ Under this analysis, (1) the threshold ¶9 Under this analysis, the first threshold question is not met in regards to Propositions IX and XII. The aggravator of "especially heinous, atrocious or cruel" as well as the second-stage jury instructions were challenged on direct appeal. That post-conviction counsel views the claim "inadequately" raised on direct appeal or raises it in...