Cole v. State

• Decision Date: 11 July 2007
• Docket Number: No. D-2004-1260.,D-2004-1260.
• Parties: Benjamin Robert COLE, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

164 P.3d 1089

2007 OK CR 27

Benjamin Robert COLE, Appellant v. STATE of Oklahoma, Appellee.

No. D-2004-1260.

Court of Criminal Appeals of Oklahoma.

July 11, 2007.

An Appeal from the District Court of Rogers County; the Honorable J. Dwayne Steidley, Associate District Judge.

G. Lynn Burch, James C. Bolen, Okla. Indigent Defense System, Capital Trial Division, Sapulpa, OK, counsel for appellant at trial.

Ray Hasselman, First Assistant District Attorney, Patrick Abitbol, Assistant District Attorney, Claremore, OK, counsel for the State at trial.

James L. Hankins, Ogle & Welch, Oklahoma City, OK, counsel for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer J. Dickson, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.

OPINION

LUMPKIN, Presiding Judge.

¶ 1 Appellant, Benjamin Robert Cole, was tried by jury in the District Court of Rogers County, Case Number CF-2002-597, and convicted of First Degree Murder, in violation of 21 O.S.Supp.2001, § 701.7(C). The jury found the existence of two aggravating circumstances: (1) that Appellant had been previously convicted of a felony involving the use or threat of violence to the person; and (2) that the murder was especially heinous, atrocious, or cruel. The jury set punishment at death, and the trial judge sentenced Appellant in accordance with this verdict. Appellant now appeals.¹

¶ 2 Appellant's nine-month-old daughter, Brianna Cole, was murdered on December 20, 2002. According to the State Medical Examiner, Brianna's spine had been snapped in half, and her aorta had been completely torn through due widoto non-accidental stretching. The official cause of death was described as a fracture of the spine with aortic laceration.

¶ 3 Appellant eventually admitted causing the fatal injuries. In a statement he gave to police, Appellant said he'd been trying, unsuccessfully, to get the child, who was lying on her stomach, to stop crying. Appellant eventually grabbed his daughter by the ankles and pushed her legs toward her head until she flipped over. This action broke the child's back and resulted in fatal injuries.

¶ 4 Evidence was admitted that Appellant took no remedial action just after this incident happened. He went and played video games, denied anything was wrong with the child when confronted by his wife, and said nothing to rescue or medical personnel about what had happened. (He did, however, attempt CPR when the situation turned grave before the ambulance arrived.) Only after rescue efforts had failed and an autopsy was performed did the medical personnel learn that Brianna's spine had been snapped. The autopsy physician testified that the injury required a great amount of force and would not be the result of normal back-bending by a nine month old. The death was eventually ruled a homicide. When told of this fact by the authorities, Appellant asked, "How many years am I looking at?" At this point, Appellant confessed his responsibility for the injuries.

PRE-TRIAL ISSUES

¶ 5 In proposition two, Appellant claims the trial court's denial of his motion for a trial continuance in order to prepare and acquire critical mitigation evidence violated his Constitutional rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article II, Section 7 of Oklahoma's Constitution.

¶ 6 It seems that three weeks before trial, Cole's defense attorneys had obtained an MRI of Appellant's brain that allegedly revealed abnormalities. Believing this evidence could be mitigating, counsel sought to develop it further by hiring an expert. Twelve days before trial, counsel filed an affidavit and motion for continuance, stating that further analysis of the MRI images "may be necessary," that Appellant was being uncooperative, and that due to a depleted OIDS staff, counsel had other duties that were preventing them from providing a zealous defense.

¶ 7 Eight days before trial, the trial court heard oral arguments concerning the motion. The State objected to the requested continuance. The Court ultimately ruled that none of the parties were at fault with regard to the delayed MRI testing, but that based upon how long the case had been pending, docketing matters, the retention of an expert who could look at and evaluate the MRI, and the substance of the request, that no continuance was necessary.

¶ 8 Considering the record as a whole, we find no abuse of discretion in this ruling. White v. State, 1980 OK CR 10, ¶ 5, 607 P.2d 713, 714. This claim relies on speculation of what might have been found had additional time been granted to perform additional testing. In making its ruling, the trial court obviously considered the additional time between that day and the time defense counsel had remaining before such evidence would have to be presented. The trial court left open a window of opportunity for counsel to accomplish exactly what it wanted. At least two defense witnesses touched upon the subject at hand. While a potential for developing even better evidence on a particular issue nearly always exists, the decision to cut off that window of opportunity in the instant case did not amount to an abuse of discretion. Moreover, we find no ineffective assistance of trial counsel with respect to the way the defense team handled this issue and no prejudice, as no evidence has apparently been developed in the two years since Appellant's trial occurred. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

¶ 9 In proposition four, Appellant claims the trial court denied him the right to effective assistance of counsel after he developed a conflict with his trial counsel and requested to have them replaced. The denial of that request, Appellant argues, was a violation of the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and Article II, sections 7 and 20 of the Oklahoma Constitution.

¶ 10 As Appellant's brief freely admits, by the time of trial Appellant "had withdrawn into extreme religiosity, made little if any effort to assist his attorneys or to prepare his defense while awaiting inspiration from God, and sat through the entire trial at counsel table literally not moving a muscle for hours on end while reading the Bible." The record shows Appellant sought to fire his attorneys less than a month before trial, due to "Religious Prejudices." Appellant requested a "Pentecostal team of lawyers" or "of the like". Apparently, due to his trial counsel's tactic of using his extreme religious beliefs to help demonstrate mental incompetence, Appellant believed his attorneys had "spit in the face of God." When questioned by the trial court concerning this issue, Appellant explained his belief that his attorneys had exaggerated his religious stance and therefore he refused to talk with them.

¶ 11 The trial court refused to appoint new counsel, however, basing its decision on reasons that are fully supported by the record. We see no "complete breakdown in communication" of the type addressed in Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir.2000) and United States v. Lott, 433 F.3d 718, 725-26 (10th Cir.2006). Instead, this record suggests an uncooperative defendant who, religious differences aside, substantially and unreasonably contributed to the communication breakdown. This proposition is without serious merit.

FIRST STAGE TRIAL ISSUES

¶ 12 In proposition one, Appellant claims evidence of his prior criminal conviction and prison sentence in California for aggravated child abuse was erroneously admitted during first stage proceeding, through multiple witnesses, resulting in "overwhelmingly unfair prejudice" in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and Article II, Section 7 of Oklahoma's Constitution.

¶ 13 The record shows that Appellant had been convicted, eighteen years previously, of aggravated child abuse in California. The injuries in that case were committed by Appellant against his then six month old son and consisted of a cigarette burn to the eyelid, bruises on the head, older bruises to the arms and torso, bruising to the genitals, and a broken ankle.

¶ 14 The State filed a Burk's notice in which it sought to admit this evidence under exceptions to the statutory prohibition against introducing prior crimes or bad acts in order to show action in conformity with character. See 12 O.S.2001, § 2404(B). The State listed four possible exceptions in its notice that might be applicable to this evidence: (1) common plan or scheme; (2) lack of mistake or accident; (3) Myers v. State's greater latitude rule; and (4) res gestae. The trial judge ultimately ruled that the evidence was admissible under the "absence of mistake or accident" exception. As a result, jurors were informed in various ways, including during arguments and witness testimony, that Appellant had a child abuse history that raised red flags.

¶ 15 Before turning to the court's ruling and how it was applied at trial, we note that two of the other exceptions listed above could not have been used to admit this damaging character evidence. That is, Appellant's eighteen year old acts of child abuse would not qualify under the common plan or scheme exception, as the only similarities between the crimes were the age and relation of the victims to Appellant and Appellant's seemingly uncontrollable outbursts of anger. And the evidence would not fall under the limited applicability of the "greater latitude" rule announced in Myers v. State, 2000 OK CR 25, ¶ 24, 17 P.3d 1021, 1030. We have applied that "rule" only in sexual abuse cases and would not have been particularly interested in expanding its application further.²

¶ 16 As for the remaining exception applied by the Court, "absence of mistake or accident," Appellant raises two arguments. First, he claims that he presented no testimony or evidence in his defense, did not...