Davis v. State

• Decision Date: 27 October 2005
• Docket Number: No. PCD-2003-686.,PCD-2003-686.
• Parties: Brian Darrell DAVIS, Appellant v. STATE of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

Page 243

123 P.3d 243

2005 OK CR 21

Brian Darrell DAVIS, Appellant v. STATE of Oklahoma, Appellee.

No. PCD-2003-686.

Court of Criminal Appeals of Oklahoma.

October 27, 2005.

Wyndi Thomas Hobbs, Oklahoma Indigent Defense System, Norman, OK, Attorney for Petitioner.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF, MOTION FOR DISCOVERY AND REQUEST FOR EVIDENTIARY HEARING

A. JOHNSON, Judge.

¶ 1 Brian Darrell Davis, Petitioner, was convicted by jury of First Degree Murder and First Degree Rape in the District Court of Kay County, Case No. CF-2001-733. The district court followed the jury's verdict and sentenced Davis to death for murder and one hundred years imprisonment for rape. Davis appealed and this Court affirmed his Judgment and Sentence in Davis v. State, 2004 OK CR 36, 103 P.3d 70.

¶ 2 Davis now seeks post-conviction relief in this Court, raising five propositions of error. Under the Capital Post-Conviction Procedure Act, only those claims that "[w]ere not and could not have been raised in a direct appeal" and that also "[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" can be raised. 22 O.S.Supp.2004, § 1089(C)(1) & (2). "This Court will not consider issues which were raised on direct appeal and are barred by res judicata, or issues which have been waived because they could have been, but were not, raised on direct appeal." Cummings v. State, 1998 OK CR 60, ¶ 2, 970 P.2d 188, 190. The burden is on the applicant to show that his claim is not procedurally barred. See 22 O.S.Supp.2004, § 1089(C). For purposes of post-conviction, a claim could not have been previously raised if:

1) it is a claim of ineffective assistance of trial counsel involving a factual basis that was not ascertainable through the exercise of reasonable diligence on or before the time of the direct appeal, or

2) it is a claim contained in an original timely application for post-conviction relief relating to ineffective assistance of appellate counsel.

22 O.S.Supp.2004, § 1089(D)(4)(b)(1) & (2).

¶ 3 In Proposition I, Davis claims trial and appellate counsel were ineffective for failing to challenge at trial and on direct appeal the prosecutor's use of eight peremptory challenges to remove women from the jury, claiming the State engaged in a pattern of gender discrimination that violated his rights to due process and equal protection. Davis contends this claim could not have been raised on direct appeal because appellate counsel also served as trial counsel and the Oklahoma Indigent Defense System has a policy prohibiting a member of the trial team, serving as appellate counsel, from raising a claim of ineffective assistance of trial counsel on direct appeal.

¶ 4 In Neill v. State, 1997 OK CR 41, ¶ 7, 943 P.2d 145, 148, we held that under 22 O.S.Supp.1995, § 1089(D)(4)(b)(1), the fact that trial and appellate counsel may be the same did not excuse appellate counsel from raising a claim of ineffective assistance of trial counsel on direct appeal. The Neill court found that the language in the amended Capital Post-Conviction Procedure Act overruled our previous decisions in Roberts v. State, 1996 OK CR 7, ¶ 12, 910 P.2d 1071, 1078-79; Fowler v. State, 1995 OK CR 29, ¶ 3, 896 P.2d 566, 569; and Webb v. State, 1992 OK CR 38, ¶ 11, 835 P.2d 115, 117, holding appellate counsel who was trial counsel in the same case was not required to raise a claim of ineffective assistance regarding his own performance below and that claims of ineffective assistance of trial counsel would be considered on collateral review. Neill, 1997 OK CR 41, ¶ 6, 943 P.2d at 148 n. 2. See also McCracken v. State, 1997 OK CR 50, ¶ 6, 946 P.2d 672, 676. This Court followed a minority position requiring a criminal defendant to raise ineffective assistance of trial counsel claims on direct appeal or forfeit them.¹ See Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir.2004).

¶ 5 The Legislature amended the Capital Post-Conviction Procedure Act in 2004. The Act now provides that "[a]ll claims of ineffective assistance of counsel shall be governed by clearly established law as determined by the United States Supreme Court." 22 O.S.Supp.2004, § 1089(D)(4). In Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the Supreme Court explained why the procedural bars applied to other habeas claims were not suitable for ineffective assistance of counsel claims:

Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation. A layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case. Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal. Were we to. . . hold that criminal defendants may not raise ineffective-assistance claims that are based primarily on incompetent handling of Fourth Amendment issues on federal habeas, we would deny most defendants whose trial attorneys performed incompetently in this regard the opportunity to vindicate their right to effective trial counsel ...

Id., 477 U.S. at 378, 106 S.Ct. at 2584-85 (citation omitted).

¶ 6 We recognize the importance of applying our rules of procedural bar uniformly and consistently to effectuate finality of judgment. By amending the Act as it did, the Legislature implicitly overruled the approach adopted by this Court in Walker² to review ineffective assistance of counsel claims on post-conviction and instead requires this Court to review these claims under the standards in established Supreme Court precedent. Requiring appellate counsel to evaluate his or her own performance and decisions at trial or forfeit a claim of ineffective assistance of trial counsel does not comport with Kimmelman because post-conviction applicants are not provided the opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel's performance. In light of Kimmelman, we find that the importance of the Sixth Amendment compels us to consider all claims of ineffective assistance of trial counsel raised in a timely application for post-conviction relief and no longer apply a procedural bar when appellate counsel and trial counsel were the same. This procedure adequately protects a criminal defendant's ability to vindicate his or her constitutional right to the effective assistance of counsel.

¶ 7 We now consider Davis's claim of ineffective assistance of trial counsel. Claims of ineffective assistance of counsel are mixed questions of law and fact which we review de novo. See Hanes v. State, 1998 OK CR 74, ¶ 4, 973 P.2d 330, 332. These claims are governed by the two-part Strickland test that requires a petitioner to show: [1] that counsel's performance was constitutionally deficient; and [2] that counsel's performance prejudiced the defense, depriving the petitioner 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). To prove deficient performance, Davis must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional conduct and demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Judicial scrutiny of counsel's performance is highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Patterson v. State, 2002 OK CR 18, ¶ 17, 45 P.3d 925, 929. If Davis demonstrates that counsel's performance was deficient, he still must show prejudice before this court may rule in his favor. Lockett v. State, 2002 OK CR 30, ¶ 15, 53 P.3d 418, 424. To show prejudice, Davis must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Lockett, 2002 OK CR 30, ¶ 15, 53 P.3d at 424. This Court may address the performance and prejudice components in any order and need not address both if a petitioner fails to make the requisite showing for one. See Lockett, 2002 OK CR 30, ¶ 15, 53 P.3d at 424; Davis v. State, 1999 OK CR 16, ¶ 38, 980 P.2d 1111, 1120.

¶ 8 Generally, a trial attorney's actions during jury selection are considered matters of trial strategy. See Roberts, 1996 OK CR 7, ¶ 20, 910 P.2d at 1080; Cheney v. State, 1995 OK CR 72, ¶ 69, 909 P.2d 74, 91. The record here shows that after questioning by the attorneys and numerous for-cause challenges, a panel of thirty potential jurors was passed for cause, consisting of fourteen women and sixteen men. Each side then exercised their nine peremptory challenges, leaving a jury of 12 consisting of nine men and three women. Davis is correct that the State exercised eight of its nine allotted peremptory challenges to remove women from the panel. Because of these numbers, it is Davis's theory that women were systematically excluded from the jury.

¶ 9 It is well established that the Equal Protection Clause forbids the use of peremptory challenges to exclude jurors solely on the basis of their gender or race. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Ezell v. State, 1995 OK CR 71, ¶ 4, 909 P.2d 68, 70. "The...