Brown v. State

• Decision Date: 09 January 1997
• Docket Number: No. PC-95-868,PC-95-868
• Parties: 1997 OK CR 1 David Jay BROWN, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 316

933 P.2d 316

1997 OK CR 1

David Jay BROWN, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-95-868.

Court of Criminal Appeals of Oklahoma.

Jan. 9, 1997.

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

LUMPKIN, Judge.

Petitioner David Jay Brown appeals to this Court from the denial of post-conviction relief by the District Court of Grady County, Case No. CF-88-45. At the conclusion of a jury trial, Petitioner was convicted of Murder in the First Degree (21 O.S.Supp.1982, Sec. 701.7). After finding the presence of one aggravating circumstance--the existence of a probability Appellant would commit criminal acts of violence that would constitute a continuing threat to society (21 O.S.1981, Sec. 701.12(7))--the jury recommended punishment of death. This Court affirmed the conviction on direct appeal, and certiorari was denied by the Supreme Court of the United States. Brown v. State, 871 P.2d 56 (Okl.Cr.1994), cert. denied, 513 U.S. 1003, 115 S.Ct. 517-18, 130 L.Ed.2d 423 (1994)

I.

Petitioner raised the following propositions of error in his application to the district court: (1) ineffective trial counsel (failure to present mitigating evidence); (2) ineffective trial counsel (allowing Petitioner to be absent from the second stage of the trial; failing to object to manufactured, highly prejudicial testimony at trial, and subsequent use of that manufactured testimony; failure to properly pursue a change of venue; failing to impeach the testimony of Jerry Clark; failing to impeach the testimony of Ann McGuire; failing to object to other crimes evidence; failing to object to the inclusion of first-stage evidence in second stage; failing to request an instruction on second degree murder; failing to object to the prosecutor's inflammatory, highly prejudicial demonstration); (3) improper withholding of a report by the Oklahoma State Bureau of Investigation consisting of an interview with Inez Baker. (5) ¹ ineffective appellate counsel (failing to contest the admission of unadjudicated crimes for continuing threat; failing to contest the use of a flight instruction; Oklahoma's sentencing scheme does not adequately narrow the class of those eligible for the death penalty; other developments in criminal jurisprudence and scientific analysis of the death penalty proves it is ineffective punishment; lethal injection is cruel and unusual punishment); (6) cumulative error effect. In the application, he also requested an evidentiary hearing to prove the claims. Petitioner also filed a motion for discovery, citing as authority 22 O.S.Supp.1994, §§ 2001-2002. The record also shows Petitioner himself filed a pro se motion for appointment of an expert witness.

The district court granted the State's motion for summary judgment and denied all requests for relief in an amended order dated July 28, 1995, and filed the same day. ² The district court held all complaints waived except that of ineffective appellate counsel. No evidentiary hearing was held. Petitioner appeals that denial to this Court, setting forth the following propositions: (1) ineffective trial counsel (combining allegations set forth in the first two propositions presented to the district court); (2) ineffective appellate counsel (based on same allegations as those presented to district court); (3) improper withholding of a report by the Oklahoma State Bureau of Investigation consisting of an interview with Inez Baker; (4) an allegation Petitioner was precluded from receiving a fair trial because racial prejudice caused a juror to violate his oath; (5) cumulative error dictates reversal; (6) the district court erred in denying his motion for discovery; (7) the district court erred in denying the motion for an evidentiary hearing; (8) the district court erred in denying Petitioner's pro se motion for a scene reconstruction expert.

II.

The post-conviction procedure is not intended to be a second direct appeal. Mayes v. State, 921 P.2d 367 (Okl.Cr.1996); Allen v. State, 909 P.2d 836, 838 (Okl.Cr.1995); 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). This Court does not consider an issue which was raised on direct appeal (and is therefore res judicata ), or an issue which could have been raised on direct appeal but which was not (and is therefore waived). Allen, 909 P.2d at 838; 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).

III.

In his first proposition of error, Petitioner claims he received ineffective assistance of counsel at the trial level. He bases this on a number of alleged failures: failure to investigate, prepare or present adequate mitigating evidence and failure to request instructions reflecting mitigation actually found by the trial court; failure to object to the use of highly prejudicial manufactured hearsay evidence; failure to impeach testimony which showed that Petitioner threatened the entire McGuire family, not just the victim; failure to object to other-crimes evidence; failure to object to the inclusion of first-stage evidence in the second stage of his trial; failure to prevent Petitioner from absenting himself from the second-stage proceedings of his own trial; failure to properly pursue a motion for change of venue; failure to impeach the testimony of a witness who testified Petitioner had threatened to kill the victim; failure to request an instruction on second degree murder; and failure to object to a demonstration by the prosecutor.

A.

We addressed the following to some extent on direct appeal: the change of venue issue (trial court erred in failing to grant), Brown, 871 P.2d at 61-62; the lesser included offense of second degree murder (failure of the court to give), id. at 66; other crimes evidence, id. at 66-67; absence of Petitioner in the courtroom during second-stage proceedings, id. at 69-72; introduction of first-stage evidence into the second stage, id. at 72; and failure to list certain mitigating evidence in the instruction to the jury, id. at 74. Consequently, these arguments are res judicata, and we shall not consider them again. Berget v. State, 907 P.2d 1078, 1081 (Okl.Cr.1995).

We find other sections of the above complaints and the following sections of the first proposition waived, as they could have been raised during direct appeal, but were not: failure to object to the use of highly prejudicial manufactured hearsay evidence; failure to impeach testimony which showed that Petitioner threatened the entire McGuire family, not just the victim; failure to impeach the testimony of a witness who testified Petitioner had threatened to kill the victim; and failure to object to a demonstration by the prosecutor. Allen, 909 P.2d at 839; Berget, 907 P.2d at 1084.

B.

All that remains is the first portion of Petitioner's first proposition, that trial counsel was ineffective because he failed to adequately investigate, prepare and present mitigating evidence. Toward that end, Petitioner presented to the district court several affidavits from people who stated they could have presented additional mitigating evidence, but did not; either because they were not approached, or trial counsel did not explain the significance of the evidence to them to allow them to offer more. The second category of affidavits deals with Petitioner's psychological makeup. The trial court ruled this proposition had been waived, as it contained issues which either were raised or could have been raised on direct appeal.

1.

The presentation of evidence not contained in the record on direct appeal is governed by Rule 3.11, Rules of the Court of Criminal Appeals, 22 O.S., Ch. 18, App.. At the time of Petitioner's direct appeal, supplementation of the appeal record with such affidavits was not permitted, but a request for an evidentiary hearing on the issue of ineffective counsel could have been submitted to this Court. Cf. Rule 3.11, Rules of the Court of Criminal Appeals, 22 O.S.Supp.1993, Ch. 18, App.; Rule 3.11, Rules of the Court of Criminal Appeals, 22 O.S.Supp.1995, Ch. 18, App.. This is not the first instance where this Court has been confronted with material which was not properly before the Court on direct appeal, but which is submitted under the guise of "new material," as a part of a post-conviction record. The plethora of claims arising under this guise forces us to more closely examine the source of the information being advanced on post-conviction claims.

Berget itself focuses on whether the material for which review is being sought is contained in the direct appeal record. Id. at 1084. But Berget does not depart from the basic rule requiring an appellant to raise an issue at the first available opportunity or risk losing that opportunity to waiver. See id. at 1080 ("We held in Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr.1985), that the provisions of 22 O.S.1981, Sec. 1080 et seq. are to be applied only to those claims which, for whatever reason, could not have been raised on direct appeal."). See also id. at 1080-81 ("Issues which were raised on direct appeal are barred from further consideration by res judicata, and issues which were not raised on direct appeal, but could have been, are waived."); id. at 1082-83 ("[A]llowing appellants carte blanche in deciding when such a claim can be raised only prolongs the appellate process, encouraging appellants to 'lay behind the log' instead of presenting their claims as soon as they become known. The result is endless delay and lack of finality in addressing an appellant's claim, and endless rehashing of the same issues under the guise of ineffective assistance."). An appellant cannot wait to raise a claim on post-conviction if the...