Battenfield v. State

• Decision Date: 21 January 1998
• Docket Number: No. PC-97-732,PC-97-732
• Citation: 953 P.2d 1123
• Parties: 1998 OK CR 8 Billy Ray BATTENFIELD, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1123

953 P.2d 1123

1998 OK CR 8

Billy Ray BATTENFIELD, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-97-732.

Court of Criminal Appeals of Oklahoma.

Jan. 21, 1998.

Bryan Lester Duple, Hossein Reza Parvizian, Oklahoma Indigent Defense Capital Post Conviction, Norman, for Petitioner.

W.A. Drew Edmondson, Attorney General of Oklahoma, Sandra D. Howard, Assistant Attorney General, Oklahoma City, for Respondent.

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

CHAPEL, Presiding Judge:

¶1 Billy Ray Battenfield was tried by a jury and convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991 § 701.7 in the District Court of Wagoner County, Case No. CRF-84-73. After finding that the murder was especially heinous, atrocious or cruel and that Battenfield constituted a continuing threat to society, the jury sentenced him to death.

¶2 This Court affirmed Battenfield's conviction and sentence in Battenfield v. State, ¹ and subsequently denied his petition for rehearing. The United States Supreme Court denied Battenfield's petition for writ of certiorari on March 23, 1992. ² On February 14, 1995, Battenfield filed an application for post-conviction relief in the District Court of Wagoner County, and then an amended application on April 13, 1995. The district court scheduled the matter for evidentiary hearing, which was held on November 22, 1996 and December 20, 1996. Battenfield filed his post-hearing brief on February 25, 1997 and the State filed its Response on March 12, 1997. The District Court of Wagoner County denied Battenfield's application on May 13, 1997. It is from this denial that Battenfield now appeals. ³

¶3 In his first proposition of error, Battenfield argues that his case should be analyzed under the pre-Walker ⁴ standard of review for ineffective assistance of counsel claims. We agree, as Walker interpreted the amended Post-Conviction statutes which are not applicable in this case. ⁵

¶4 Battenfield raises eleven (11) additional propositions of error. Even under the Pre-Amended Post-Conviction Procedure Act, 22 O.S.1991, § 1080-89, Post-Conviction review is strictly limited. Post-Conviction is not intended to provide a second appeal. ⁶ Issues which were raised and decided on direct appeal are barred by res judicata, and issues which could have been raised on direct appeal but were not are waived. ⁷

¶5 In accordance with these rules, the following propositions of error are barred by waiver because they could have been raised on direct appeal but were not: Proposition VIII (claim that photographs were improperly admitted); Proposition X (challenge to instructions regarding the weighing of aggravating and mitigating circumstances); ⁸ Proposition XI (claim that the ¶6 In his second, ¹⁰ third and sixth propositions of error, Battenfield argues that appellate counsel was ineffective for failing to: (a) raise critical errors in trial counsel's performance (Propositions IV and V--addressed as (a)(1-4) below); (b) challenge the constitutionality of Oklahoma's continuing threat aggravator; (c) raise as a proposition of error the admission of prejudicial photographs; and, (d) raise as a proposition of error the prosecutor's gender-based exclusion of female jurors.

death penalty is under all circumstances cruel and unusual punishment). Therefore, these propositions will not be addressed. ⁹

¶7 To prevail on a claim of ineffective assistance of counsel, Battenfield must show: (1) that counsel's representation fell below an objective standard of reasonableness; and, (2) a reasonable probability that the results of the proceedings would have been different if not for counsel's errors. ¹¹ Although appellate counsel is required to raise relevant issues for this Court to consider and address, counsel "need not raise every non-frivolous issue." ¹² We have carefully considered each of the instances of alleged ineffective assistance of counsel, and find that none of the requirements under Strickland have been met.

(a) failure to raise ineffective assistance of trial counsel:

¶8 In deciding whether appellate counsel was ineffective for failing to raise an ineffective assistance of trial counsel claim on direct appeal, we must review the trial attorney's allegedly deficient performance. In doing so, we "indulge a strong presumption that [the trial attorney's] conduct [fell] within the wide range of reasonable professional assistance...." ¹³

¶9 In Propositions IV and V, Battenfield argues his trial attorney was ineffective for failing to investigate and present available mitigation evidence, including but not limited to: (1) mental health evidence; (2) familial testimony; (3) testimony of prison personnel to describe the security where Petitioner would be incarcerated for the rest of his life; and, (4) forensic social worker testimony regarding Battenfield's life history.

¶10 We begin by noting that a trial attorney's decision not to present mitigating evidence does not automatically render that ¶11 Battenfield now argues that he did not have a thorough understanding of mitigation and did not realize it encompassed more than familial testimony. Although his waiver was not as good as it might have been, it appears to have been made knowingly and voluntarily. ¹⁷ Even without the waiver, however, Battenfield has failed to show that trial counsel was ineffective by not presenting mitigating evidence. We have reviewed the Affidavits attached to Petitioner's Application and find they all contain evidence that Battenfield and his family could have presented to the jury had Battenfield cooperated with his attorney. Thus, the second, third and fourth allegations of ineffective assistance of trial counsel are a direct result of Battenfield's own refusal to testify and allow his parents to testify. We will not hold counsel responsible for a client's obstinate behavior.

                attorney ineffective. 14  Also important to our analysis is Battenfield's own strong objection to the presentation of mitigating evidence at the second stage of his trial.  He refused to testify against the advice of his attorney. 15  He then waived his right to present mitigation in general, stating he did not want to call his parents because they had already been through enough. 16
                

¶12 This leaves only the first ground, failure to present mental health evidence, as a possible instance of ineffectiveness of counsel. However, Battenfield has failed to show that such expert testimony was necessary. He did not then and does not now suffer from mental illness, mental infirmity, or incompetence to stand trial. ¹⁸

¶13 Furthermore, Battenfield has failed to show prejudice. The psychologist's conclusion that Battenfield was chemically dependent does nothing to undermine our confidence in the jury's determination that he constitutes a continuing threat to society. Accordingly, Battenfield has failed to show that his counsel's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." ¹⁹

¶14 Additionally, the record indicates that appellate counsel's failure to challenge trial counsel's effectiveness was sound appellate strategy. ²⁰ Appellate counsel's affidavit makes clear that he made a conscious decision to focus on issues he deemed most likely to garner relief, and forego less-meritorious arguments. This is a valid strategic decision which will not constitute ineffective

                assistance. 21  We find no deficiency in the performance of either trial or appellate counsel in this case.
                

(b) failure to challenge the continuing threat aggravator on direct appeal:

¶15 Nor was appellate counsel ineffective for failing to challenge Oklahoma's continuing threat aggravator. We have repeatedly upheld the constitutionality of this aggravator. ²² Counsel will not be deemed ineffective for failing to raise a claim which this Court has consistently held to be meritless.

(c) failure to challenge the admission of prejudicial photographs:

¶16 Failing to raise the issue of allegedly prejudicial photographs in a case involving a grisly murder also does not constitute ineffectiveness. We repeat: declining to raise every conceivable issue does not render an attorney ineffective.

(d) failure to raise alleged gender-based discrimination in jury selection:

¶17 Three years after Battenfield's direct appeal was decided, the United States Supreme Court decided J.E.B. v. Alabama. ²³ Battenfield now claims his direct appeal attorney was ineffective for failing to raise a gender-based discrimination claim based on J.E.B., a case that did not exist when the direct appeal brief was filed. Counsel can hardly be considered ineffective for failing to raise an issue under these circumstances. ²⁴

¶18 A careful review of each of the issues raised under the rubric of ineffective assistance reveals that none merit relief. These propositions are denied.

¶19 In Proposition II, Battenfield argues that the prosecution exercised peremptory challenges in a discriminatory manner based on gender, in violation of his Fourteenth Amendment right to Equal Protection. ²⁵ Although Battenfield has not raised this claim before, an intervening change in constitutional law provides sufficient reason for us to review the issue. ²⁶ The prosecution in this case used its first six peremptory challenges to excuse six female jurors, all without objection. The State then waived its remaining three challenges, leaving five women to serve on Battenfield's jury.

¶20 Battenfield now argues the State cannot offer a gender-neutral reason for the excusal of the first six female jurors. However, we will not reach this question unless Battenfield can make a prima facie showing of intentional gender-based discrimination in the strikes. ²⁷ "[W]ithout this showing there is no need to explain the basis of the challenge." ²⁸ Battenfield has not met this requirement. He has shown only that ¶21 In Proposition VII,...