Fitzgerald v. State

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Citation1998 OK CR 68,972 P.2d 1157
Docket NumberNo. F-96-1200,F-96-1200
Parties1998 OK CR 68 James Joseph FITZGERALD, Appellant, v. STATE of Oklahoma, Appellee.
Decision Date10 December 1998

Page 1157

972 P.2d 1157
1998 OK CR 68
James Joseph FITZGERALD, Appellant,
STATE of Oklahoma, Appellee.
No. F-96-1200.
Court of Criminal Appeals of Oklahoma.
Dec. 10, 1998.

Page 1160

Sid Conway, Tulsa, for Defendant at trial.

Tim Harris, Mark Collier, Assistant District Attorneys, Tulsa, for the State at trial.

Paula J. Alfred, Assistant Public Defender, Tulsa, for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, for Appellee on appeal.


CHAPEL, Presiding Judge:

¶1 James Joseph Fitzgerald was tried by jury and convicted of Count I, Robbery with a Firearm in violation of 21 O.S.1991, § 801; Count II, Attempted Robbery with a Firearm in violation 21 O.S.1991, § 801; Count III, First Degree Murder (Malice Aforethought) in violation of 21 O.S.1991, § 701.7; and Count IV, Robbery with a Firearm in violation of 21 O.S.1991, § 801, in the District Court of Tulsa County, Case No. CF-94-3451. The jury found that Fitzgerald (1) was previously convicted of a felony involving the use or threat of violence; (2) committed the murder in order to avoid or prevent a lawful arrest or prosecution; and (3) probably would commit criminal acts of violence that would constitute a continuing threat to society. In accordance with the jury's recommendation, the Honorable E.R. Turnbull sentenced Fitzgerald to life imprisonment plus a $10,000 fine on Counts I, II, and IV, and death on Count III. Fitzgerald has perfected his appeal of this conviction and raises sixteen propositions of error. After thorough consideration of the record before us, we find pervasive error in the second stage of trial compels us to remand Count III for resentencing.

¶2 Fitzgerald spent the evening of July 15, 1994, with Regina Stockfleth and other friends. In the early morning hours of July 16, Fitzgerald, armed with an SKS assault rifle, robbed the Git-N-Go store at 7494 East Admiral Street in Tulsa. After the robbery he returned to Stockfleth's house, wearing a bandanna around his neck and carrying $55 cash in a Git-N-Go bag. He was asked to leave.

¶3 Fitzgerald arrived at the Git-N-Go store at 6938 East Pine about 2:45 a.m. The clerk, William Russell, took the SKS rifle away from Fitzgerald. Russell pointed the rifle at Fitzgerald but apparently could not release the safety on the weapon. Fitzgerald came over the counter, and the two scuffled. Russell escorted Fitzgerald (who had the rifle) out of the store and locked the doors. As Russell retreated behind the store counter, Fitzgerald turned and fired, shattering the glass doors. His bandanna mask had fallen, and his face was visible. Fitzgerald pointed the gun in Russell's direction and fired several shots, then ran. Police recovered eight spent casings and six bullets from various locations in the store, and one bullet was found in Russell's body. That bullet had passed through six cigarette packages, two counter partitions, and a roll of calculator tape before entering Russell near his left armpit. The bullet pierced his lung and spine and broke two ribs. Russell had massive internal bleeding and died of a gunshot wound to the chest.

¶4 After leaving the Pine Street store, Fitzgerald robbed the Git-N-Go store at 903 North Yale at approximately 3:00 a.m. He wore a bandanna mask and threatened the clerk with the SKS assault rifle. After this robbery Fitzgerald briefly returned to his parents' home, then left the state. In Illinois he traded the SKS rifle for $100 and a .357 magnum handgun. He was arrested in Missouri. Fitzgerald confessed to robbing the two stores and attempting to rob the store on Pine Street, but insisted he did not intend to injure or kill Russell.

¶5 Fitzgerald was represented by appointed counsel until a month before trial, when he exercised his right to proceed pro se. Trial counsel remained in the courtroom as standby counsel and assisted Fitzgerald in framing objections and making arguments to the court. Fitzgerald presented no evidence in mitigation in the second stage of the proceedings (punishment on the capital charge) or the third stage (punishment on the robbery charges).

Page 1162


¶6 In Proposition I Fitzgerald claims the trial court erred by accepting his purported waiver of the constitutional right to counsel where there was no determination of competency and the purported waiver was not knowingly and intelligently made thus violating constitutional provisions. A criminal defendant has the absolute right to counsel, but he may waive that right if he clearly and unequivocally declares his wish to proceed pro se and the trial court determines: (1) the defendant is competent to make that decision and (2) the waiver is voluntary, knowing and intelligent. 1 The competency standard for the waiver of right to counsel is not higher than that for ability to stand trial, and a trial court need make a separate determination of competency only where the court has reason to doubt a defendant's competence. 2 A defendant is competent if he has the present ability to consult with his attorney and a rational and actual understanding of the proceedings against him. 3 The trial court must advise a competent defendant of the nature of the charges, the offenses against him, the range of punishment, and the dangers of self-representation. 4 This Court has consistently refused to impose a list of factors on trial courts, holding instead that a valid waiver is determined from the total circumstances of each case. 5

¶7 Fitzgerald was represented by appointed counsel throughout the preliminary proceedings. On April 18, 1996, a hearing was held at which Fitzgerald's motion to proceed pro se was granted (trial began May 20). The trial court questioned Fitzgerald extensively to determine whether he was dissatisfied with his attorney's representation and whether he understood the consequences of his decision. Fitzgerald said he and his attorney did not agree on his defense but stated he was satisfied with her qualifications and experience. He said self-representation was his right as an American citizen and indicated he preferred to take control of his case since he would have to live with the outcome. The trial court found Fitzgerald was "in control of your faculties, that you understand what's going on, that you understand the conversations, the meaning and the consequences of conversations that we're having." 6 The trial court advised Fitzgerald of the nature of the charges, the offenses charged, and the range of punishment possible for each offense. Trial counsel confirmed she had explained Fitzgerald's Sixth Amendment rights. The trial court repeatedly advised Fitzgerald against self-representation, pointing out Fitzgerald did not know what he was doing, that this was a bad decision, and that Fitzgerald could get the death penalty because he decided to go pro se. In subsequent motions proceedings the trial court explained court procedures and gave Fitzgerald a comprehensive written outline of the trial structure, which included the court's voir dire questions on the death penalty and indicated when Fitzgerald would have the opportunity to argue, present evidence, and make motions to the court. The trial court arranged for Fitzgerald to have reasonable opportunity to move about the courtroom and present documents to the court or witnesses and defined the court's role in the proceedings. Throughout, the trial court stated if Fitzgerald changed his mind standby counsel would be re-appointed to represent him, even if trial had begun, and urged Fitzgerald to reconsider. Fitzgerald insisted he wanted to represent himself.

Page 1163

¶8 The trial court determined that Fitzgerald was competent to waive counsel by finding that Fitzgerald was in control of his faculties and understood the proceedings. Fitzgerald claims the trial court should have conducted a separate hearing to determine competency because he had presented information raising a doubt about his competency to waive counsel. In support of his requests for state-funded expert assistance, Fitzgerald submits: (a) evidence that he suffered from juvenile-onset diabetes; (b) evidence he had received a gunshot wound to the head requiring surgery; (c) medical reports discussing some physical symptoms associated with juvenile-onset diabetes and the effects the disease may have on physical and psychosocial development, as well as evidence describing the effect of alcohol on a person with this disease; (d) assertions that he suffered some of these physical symptoms; and (e) evidence that he had been drinking the night of the murder. This information was not presented to support a suggestion that Fitzgerald was incompetent to stand trial or waive his right to counsel. Fitzgerald's competence was not questioned at any point in the proceedings, and the record does not support an inference that his decision to waive counsel resulted from poor impulse control, an exaggerated emotional reaction, a reaction to alcohol, or any other cognitive defect. Nothing in the record suggests Fitzgerald appeared incompetent or acted in an unusual manner during the hearing on his motion to proceed pro se, and no evidence introduced then or at any other proceeding cast doubt on Fitzgerald's ability to make an intelligent and knowing waiver. This Court cannot find that the information about Fitzgerald's diabetes and head injury alone raised a doubt about his competency sufficient to require a separate competency proceeding.

¶9 Fitzgerald also gave a knowing, intelligent, and voluntary waiver. He denied his decision was coerced during the April 18, 1996, hearing and does not suggest coercion on appeal. Fitzgerald had several prior convictions and was familiar with the criminal justice system. He was informed of the nature of the charges, offenses, and range of punishment and repeatedly advised that this was a bad decision. Over the...

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