Coddington v. State

• Decision Date: 23 August 2011
• Docket Number: No. PCD–2008–920.,PCD–2008–920.
• Citation: 2011 OK CR 21,259 P.3d 833
• Parties: James CODDINGTON, Appellant,v.The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

259 P.3d 833
2011 OK CR 21

James CODDINGTON, Appellant,
v.
The STATE of Oklahoma, Appellee.

No. PCD–2008–920.

Court of Criminal Appeals of Oklahoma.

Aug. 23, 2011.

[259 P.3d 834]

Laura M. Arledge, Norman, Oklahoma, attorney for petitioner on appeal.E. Scott Pruitt, Attorney General of Oklahoma, Seth Branham, Assistant Attorney General, Oklahoma City, Oklahoma, attorneys for appellee on appeal.

[259 P.3d 835]

OPINION DENYING APPLICATION FOR POST–CONVICTION RELIEF SMITH, Judge.

¶ 1 James Coddington was tried by jury and convicted of First Degree Murder in the District Court of Oklahoma County, Case No. CF–1997–1500. He received the death penalty. This Court affirmed Coddington's conviction, reversed the sentence, and remanded the case for resentencing. Coddington v. State, 2006 OK CR 34, 142 P.3d 437. Coddington again received the death penalty after a resentencing trial. This Court upheld that decision. Coddington v. State, 2011 OK CR 17, 254 P.3d 684.

¶ 2 On March 21, 2011, Coddington filed an application for capital post-conviction relief.¹ The only issues appropriately raised under Oklahoma's post-conviction statutes are those which: “(1) [w]ere not or could not have been raised in a direct appeal; and (2) [s]upport 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.2006, §§ 1089(C)(1), (2). On review, this Court must determine: “(1) whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, (2) whether the applicant's grounds were or could have been previously raised, and (3) whether relief may be granted....” 22 O.S.Supp.2006, § 1089(D)(4). The post-conviction process is not a second appeal. The doctrines of res judicata and waiver will apply where a claim either was, or could have been, raised in the petitioner's direct appeal. Coddington raises two propositions of error in support of his application.

¶ 3 In his first proposition Coddington claims he received ineffective assistance of counsel.² A claim of ineffective assistance of trial counsel is appropriate for post-conviction review if it has a factual basis that could not have been ascertained through the exercise of reasonable diligence on or before the time of the direct appeal. 22 O.S.Supp.2006, § 1089(D)(4)(b)(1). A claim of ineffective assistance of appellate counsel may be raised for the first time on post-conviction. 22 O.S.Supp.2006, § 1089(D)(4)(b)(2). We review post-conviction claims of ineffective assistance using United States Supreme Court precedents. 22 O.S.Supp.2006, § 1089(D)(4); Davis v. State, 2005 OK CR 21, ¶ 6, 123 P.3d 243, 245–46. Coddington must show that counsel's performance was deficient, and that he was so prejudiced by that performance that he was deprived of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). We will not find counsel was ineffective if Coddington was not prejudiced by counsel's act or omission. Harris v. State, 2007 OK CR 32, ¶ 3, 167 P.3d 438, 441. A finding of prejudice requires a showing of “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Smith v. State, 2010 OK CR 24, ¶ 19, 245 P.3d 1233, 1239; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 790, 792, 178 L.Ed.2d 624 (2011). There is a strong presumption that counsel's conduct is within the wide range of reasonable professional conduct. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Coddington must show “that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy.” Davis, 2005 OK CR 21, ¶ 7, 123 P.3d at 246. A strong presumption exists that, where counsel focuses on some issues to the exclusion of others, this reflects a strategic decision

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rather than neglect. Richter, 131 S.Ct. at 790. Appellate counsel need not raise every non-frivolous issue. Jones v. Barnes, 463 U.S. 745, 753–54, 103 S.Ct. 3308, 3313–14, 77 L.Ed.2d 987 (1983).

¶ 4 We note that appellate counsel on Coddington's direct appeal raised a claim of error which required Coddington's death sentence to be reversed and remanded for resentencing. Given this evidence of effective representation, it will be difficult for Coddington to show that appellate counsel's performance was deficient.

¶ 5 Coddington claims in Subproposition A that appellate counsel from Coddington's first direct appeal (hereafter “appellate counsel”) failed to raise several meritorious issues.

¶ 6 Appellate counsel interviewed several jurors after Coddington's first trial, but did not ask about their backgrounds. Coddington's first claim is that appellate counsel should have investigated the background of members of Coddington's first trial jury, and interviewed jurors regarding that specific investigation. Coddington claims that, had appellate counsel done so, counsel would have discovered that six members of that jury gave inaccurate answers to voir dire questions; with this information, Coddington argues, appellate counsel could have claimed that Coddington was denied his right to an impartial jury. It is important to remember what claim of error, precisely, this Court is reviewing. While Coddington explains at length the substantive basis for this claim—the responses jurors gave to voir dire questions, and information apparently contradicting those responses which was discovered in post-conviction investigation—this Court is not reviewing the substantive claim of error. The issue raised in this subproposition is not whether any or all of these six jurors were less than candid in their responses; nor is it whether trial counsel, had she known of these misrepresentations, would have challenged any of these jurors for cause or through a peremptory challenge. The issue before the Court is whether appellate counsel's failure to investigate these jurors and raise any issues resulting from that investigation on direct appeal, raises a substantial likelihood that the result of the proceeding would have been different. In conducting this review, this Court is focusing on Coddington's conviction as the outcome which would have been affected by different actions on appellate counsel's part.

¶ 7 Coddington apparently fails to understand these limitations. In addition to claiming ineffective assistance of appellate counsel in this proposition, he claims that he was denied his right to fully conduct voir dire, and his right to an impartial jury, by what he characterizes as material omissions in the responses of three (and particularly two) of the six jurors. This is not the question before the Court. These substantive issues have been waived.

¶ 8 Coddington fails to show a reasonable probability that the outcome of his trial would have been different, had appellate counsel discovered the information about the jurors he presents to this Court on post-conviction. Coddington claims that this Court has held appellate counsel has the duty to investigate juror misconduct. This claim is not supported by his cited cases; while this Court has ruled on claims of juror misconduct developed through appellate investigation, we have not imposed upon appellate counsel a duty to conduct such investigation as part of effective representation. Harris, 2007 OK CR 32, ¶ 10, 167 P.3d at 443. Coddington argues that any misrepresentation by a juror goes to the juror's impartiality, and is structural error. This is not the case. Structural error is reserved for a very limited category of errors, and the strong presumption is that trial error is subject to harmless error analysis. Robinson v. State, 2011 OK CR 15, ¶ 4, 255 P.3d 425, 428. We have held that an error in voir dire as basic as the outright denial of a peremptory challenge is reviewed for harmless error. Robinson, 2011 OK CR 15, ¶ 12, 255 P.3d at 430. Our cases involving juror misconduct consistently subject that issue to harmless error analysis.

¶ 9 The Constitution guarantees defendants a disinterested jury; even where jurors' voir dire responses are deliberately misleading, relief is required only where the

[259 P.3d 837]

record “casts sufficient doubt on the juror's ability to be impartial.” Underwood v. State, 2011 OK CR 12, ¶ 95, 252 P.3d 221, 255; 22 O.S.2001, § 660 (juror bias involves relations between prospective juror and defendant, a witness, or the case itself); 22 O.S.2001, § 659 (juror bias where, in reference to the case or either party, juror's state of mind is not impartial). Relief is not necessary unless a juror's misrepresentations or lack of candor have “any relationship to, connection with, or bias toward or against any party or witness in this case,” involve a situation similar to the charged crime, or suggest a personal interest in serving on the jury so strong the juror would commit perjury to do so. Underwood, 2011 OK CR 12, ¶¶ 98–99, 252 P.3d 221, 256–57. A juror's omission must be material or affect the outcome of the trial. Harris, 2007 OK CR 32, ¶ 15, 167 P.3d at 444. Coddington must show actual injury from a juror's non-disclosure of even material information. Grissom v. State, 2011 OK CR 3, ¶ 25, 253 P.3d 969, 979.

¶ 10 Coddington argues that, because appellate counsel did not follow the ABA guidelines for capital defense counsel, which recommend that appellate counsel aggressively investigate all aspects of the case, counsel must be ineffective. The United States Supreme Court has rejected the suggestion that compliance with published ABA standards or guidelines is required to meet the standards of effective assistance set forth in Strickland. Bobby v. Van Hook, –––U.S. ––––, 130 S.Ct. 13, 17,...