Allen v. State

• Decision Date: 16 February 1996
• Docket Number: No. C-93-1121,C-93-1121
• Parties: Garry T. ALLEN, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 613

923 P.2d 613

Garry T. ALLEN, Petitioner, v. STATE of Oklahoma, Respondent.

No. C-93-1121.

Court of Criminal Appeals of Oklahoma.

Feb. 16, 1996.

Rehearing Denied Oct. 1, 1996.

An Appeal from the District Court of Oklahoma County; Richard W. Freeman, District Judge.

Bob Mildfelt, Catherine Hammarsten, Assistant Public Defenders, Oklahoma City, Defense Counsel at trial.

Carolyn Merritt, Assistant Public Defender, Oklahoma City, for Appellant on appeal.

Lori Nettleton, Fern Smith, Assistant District Attorneys, Oklahoma City, Prosecutor at trial.

W.A. Drew Edmondson, Attorney General, William L. Humes, Assistant Attorney General, Oklahoma City, for State on appeal.

OPINION DENYING WRIT OF CERTIORARI

LANE, Judge:

Garry T. Allen pled guilty to First Degree Murder and was sentenced to death in Oklahoma County District Court Case CRF-86-6295. On original appeal judgment was affirmed and the sentence vacated on the grounds the trial court did not consider the sentencing option of life without parole which had gone into effect ten days prior to sentencing. Allen v. State, 821 P.2d 371 (Okl.Cr.1991); See 21 O.S.Supp.1992, § 701.10(A).

A second sentencing hearing was held, and the trial court again imposed the death sentence. See 21 O.S.1991, § 701.10a(1). Allen is now before us on original appeal from this resentencing.

The trial judge found three aggravating factors to death qualify the defendant: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; (2) the defendant knowingly created a great risk of death to more than one person; and (3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, §§ 701.12(1), (2) and (7).

We find the evidence is not sufficient to prove beyond a reasonable doubt the defendant created a great risk of death to more than one person. Upon reweighing the mitigating evidence against the remaining aggravating factors, we find the death penalty is factually substantiated and properly imposed. Sentence is affirmed.

I. FACTS

Allen shot and killed his girl friend, Gail Titsworth, three days after she moved out with their sons, six-year-old Anthony and two year old Adrian. Angry confrontations punctuated those three days, as Allen tried repeatedly to persuade Titsworth to come back to him. Their last argument occurred on November 21, 1986 when Titsworth came to pick up their sons at Beulah's Day Care Center on N.W. 8th Street in Oklahoma City.

Allen confronted Titsworth inside the center, and the two moved to an empty room to argue. Allen left just ahead of Titsworth and the boys. When Titsworth opened the door of her truck, Allen came up behind her and shut it. She opened it again; again he shut it. This argument ended when Allen reached into his sock, pulled out a .38 caliber snub-nosed revolver, and shot Titsworth once in the chest. She fell, and he looked under her blouse before walking away.

A day care employee ran to Titsworth to help her into the day care center. Just as she and Titsworth reached the front door, Allen pushed the woman inside and pushed Titsworth down on the outside steps. Allen shot her three times in the back at close range and walked away. He was captured in an alley less than a block away by the police officer who responded to the 911 call.

Because Allen appeals from resentencing, only sentencing issues are before us. These issues are framed by Appellant's brief in chief, his supplemental brief, and the State's responses to each.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant argues he was denied effective assistance of counsel as guaranteed by the Sixth Amendment, because his trial attorney did not present all of the available mitigating evidence. Trial counsel will not be found ineffective unless counsel's conduct so undermined the proper functioning of the adversarial process that the proceeding cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Our review begins with the presumption of competent representation and the appellant must carry the burden of demonstrating both deficient performance and resulting prejudice. Maxwell v. State, 775 P.2d 818, 820 (Okl.Cr.1989); Strickland, 466 U.S. at 689-91, 104 S.Ct. at 2065-66.

Appellant bases his claim on the following omitted evidence: (1) his mental diagnoses of inadequate personality disorder and organic brain damage; (2) the possibility he has Reye's syndrome; (3) the Boley State School at which he stayed for six months has a violent environment; (4) his mother's alcoholism and rejection of him; (5) his drug and alcohol abuse; and (6) his institutionalization for mental illness while in the Navy. Without this evidence, appellant argues, the sentencing proceeding was fundamentally unfair. The State counters by arguing the bulk of this evidence was, in fact, introduced and the rest does not render the sentencing unreliable.

The record shows extensive mitigating evidence was presented by defense expert, Dr. Nelda Ferguson. She testified Allen was raised in poverty and hunger in an unstable family led by an alcoholic mother who rejected him. As a teenager Allen suffered debilitating mood swings which resulted in five or six suicide attempts. He began to abuse alcohol and drugs when he was seventeen or eighteen years old. All of Allen's siblings are alcoholics. Even though Allen's IQ indicates he is bright, he ultimately dropped out of high school after a six month placement in the Boley State School. While serving in the Navy, Allen was hospitalized for psychological problems, and the abuse of alcohol and drugs. He had also been admitted into the Oklahoma City Veteran's Administration hospital for psychological problems.

Dr. Ferguson concluded the appellant was genetically predisposed to mental illness, and diagnosed Allen as having a personality disorder related to schizophrenia. He could not form and keep long-term relationships, he had little impulse control, and drinking greatly exacerbated these problems. Dr. Ferguson's testimony was supported by Allen's parents who testified to mental illness on both sides of the family, and Allen's ex-wife who testified to Allen's inability to control his temper. Allen himself testified he drank whenever possible.

Most of the evidence on which appellant bases this claim was in fact introduced: the maternal rejection; the drug and alcohol abuse; the hospitalization while in the Navy; and the personality disorder. The only challenged evidence not introduced is the possibility Allen suffered from Reye's syndrome, the fact the environment of the Boley State Home was violent, and the specific label of organic brain damage. Given the very thorough mental health evidence presented by Dr. Ferguson, we find beyond a reasonable doubt the omission of this evidence did not undermine the validity of the resentencing hearing.

At oral argument appellate counsel argued trial counsel's failure to present Allen's Navy medical records to Dr. Ferguson was further evidence of ineffectiveness. Counsel argued the Navy records would have supported Dr. Ferguson's testimony which otherwise could be discounted by the trial judge.

The mere fact more evidence could have been presented is not, in itself, sufficient to support a finding of ineffectiveness. See Nguyen v. State, 844 P.2d 176, 179 (Okl.Cr.1992), cert. denied, 509 U.S. 908, 113 S.Ct. 3006, 125 L.Ed.2d 697 (1993). Given the fact in this case the evidence of mental and social disability was credible, well developed, and uncontroverted, the omission of previous medical records does not undermine our confidence in the sentencing decision. We find the appellant has failed to carry his burden to show either deficient performance by counsel, or prejudice from the omission of this evidence.

III. STATEMENTS BY THE TRIAL JUDGE

Three propositions of error are based on the following statement made by the trial judge to explain the process he used to decide on the death sentence:

Over the weekend, I had the opportunity to review the evidence that was presented during the preceding week. I examined my trial notes. I took the Court file home with me. I went through that. I also read the Court of Criminal Appeals opinion on reversal and I reviewed the notes I made during the argument of counsel and I did consider all three punishments, life, life without parole and death.

My consideration of these matters over the weekend, as I said, took place at my residence in seclusion in a leisurely and relaxed atmosphere. I carefully and prayerfully reviewed the facts, the testimony, the arguments. I was not influenced by passion of prejudice or any other arbitrary factor.

I gave consideration to the pleas for mercy by the parents and the children of Mr. Allen and to those pleas that he made himself.

I considered what I'm sure would have been the pleas, although unspoken, by Gail Titsworth for justice and those of her family, which also were not presented.

It's not an easy case, of course, to decide.

Upon consideration of all these various things that I've talked about I do find that the Bill of Particulars has been proven. The Defendant was previously convicted of a felony involving use of or threat of violence to the person. Number two, the Defendant knowingly created a great risk of death to more than one person and I believe there is the existence of a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society.

And, accordingly, I find that the appropriate punishment in this case would be death and I do make that finding with his punishment in this Case CRF-86-6295 should be death. [emphasis added to challenged portions]

By considering the decision "prayerfully", appellant argues, the trial judge arbitrarily injected his...