Fulgham v. State

• Decision Date: 22 December 2016
• Docket Number: Case Number: F–2015–455
• Citation: 400 P.3d 775
• Parties: Hillard A. FULGHAM, II, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

400 P.3d 775

Hillard A. FULGHAM, II, Appellant,

v.STATE of Oklahoma, Appellee.

Case Number: F–2015–455

Court of Criminal Appeals of Oklahoma.

Decided: December 22, 2016

APPEARANCES AT TRIAL, KYLE H.B. KILLAM, 2017 SOUTH ELM PLACE, STE 108, BROKEN ARROW, OK 74012, COUNSEL FOR DEFENDANT

ERIK GRAYLESS, AMANDA SELF, ASSISTANT DISTRICT ATTORNEYS, DISTRICT ATTORNEY'S OFFICE, 500 SOUTH DENVER, STE 900, TULSA, OK 74103, COUNSEL FOR THE STATE

APPEARANCES ON APPEAL, WAYNA TYNER, OKLAHOMA INDIGENT DEFENSE, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

E. SCOTT PRUITT, OKLAHOMA ATTORNEY GENERAL, JENNIFER B. MILLER, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

HUDSON, JUDGE:

¶ 1 Appellant Hillard A. Fulgham, II was tried by a jury in the District Court of Tulsa County, Case No. CF–2013–2986, and convicted of two counts of Murder in the First Degree in violation of 21 O.S.Supp.2004, § 701.7.¹ The jury recommended Fulgham be sentenced to life imprisonment without the possibility of parole on both counts. The Honorable Doug Drummond, District Judge, sentenced Fulgham in accordance with the jury's verdicts and ordered the sentences be run consecutively. From these Judgments and Sentences, Fulgham now appeals. We AFFIRM.

BACKGROUND

¶ 2 On January 4, 2006, police found Dorothy Lindley and Linda Wright stabbed to death in Ms. Lindley's apartment at the Warwick Apartments in Tulsa. Ms. Lindley was found lying on her bed while Ms. Wright was found lying on the bedroom floor. Evidence at the scene indicated that the struggle between the victims and their assailant was limited to this bedroom. Ms. Lindley's apartment was located on the second floor. Ms. Lindley's bedroom window was broken and the screen had been pulled out. Blood was found on the bottom ledge of the windowsill. Blood was also found in the kitchen on the tile floor and counter-top; in the bathroom on the floor; and on a toilet paper roll.

¶ 3 While the police investigated various potential suspects, their investigation turned up nothing concrete and the case grew cold until a hit through the Combined DNA Indexing System (CODIS)—a national DNA database—on May 1, 2009. A DNA match was found between Appellant's DNA profile and the DNA obtained from the blood on the windowsill and the toilet paper roll. Appellant's DNA profile had been entered into the database because he was serving a seven (7) year sentence in Mississippi. Thereafter, police secured a search warrant to obtain a DNA sample from Appellant. The search warrant was executed at the Mississippi prison in which Appellant was being housed. DNA testing confirmed Appellant's presence at the crime scene.

¶ 4 Additional facts relating to the murders need not be presented herein as Appellant does not allege any procedural or evidentiary issues occurred during the trial, nor does he challenge the sufficiency of the evidence supporting the jury's guilty verdicts.

VIOLATION OF INTERSTATE AGREEMENT ON DETAINER'S ACT CLAIM

¶ 5 In his first proposition of error, Appellant contends his rights pursuant to the Interstate Agreement on Detainers (IAD) were violated when the State failed to bring him to trial within the 120 day timeframe mandated by Article IV(c) of the IAD. 22 O.S.2011, § 1347.

¶ 6 The IAD is a compact among 48 states, the District of Columbia, Puerto Rico, the United States Virgin Islands, and the United States. Carchman v. Nash , 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed.2d 516 (1985). It is a "congressionally sanctioned interstate compact" within the Compact Clause of the United States Constitution, Art. I, § 10, cl. 3. Id. Hence, the IAD is a federal law subject to federal construction. Id. ; New York v. Hill , 528 U.S. 110, 111, 120 S.Ct. 659, 662, 145 L.Ed.2d 560 (2000). Oklahoma codified the IAD in 1977 in Title 22, Section 1345 et seq .

¶ 7 The IAD provides cooperative procedures for transfers of prisoners between the federal and state jurisdictions that have adopted the interstate compact. The purpose of the IAD is "to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." 22 O.S.2011, § 1347 Art. I; Carchman , 473 U.S. at 720, 105 S.Ct. at 3403 ; Bowie v. State , 1991 OK CR 78, ¶ 14, 816 P.2d 1143, 1147. Moreover, as recognized by the Supreme Court:

Adoption of the [IAD] was motivated in part by a practice of filing detainers based on untried criminal charges that had little basis. These detainers often would be withdrawn shortly before the prisoner was released. Even though unsubstantiated, the detainers would have a detrimental effect on the prisoner's treatment. Article III enables a prisoner to require the State lodging the detainer either to drop the charge and resulting detainer or to bring the prisoner to trial. In this way, the prisoner can clear his record of detainers based on unsubstantiated charges.

Carchman , 473 U.S. at 729–30, 105 S.Ct. at 3408–09 (internal citations omitted). Thus, included within the purpose of the IAD is the goal of preventing frivolous detainers through the speedy disposition of detainers to ensure that those filed for specious reasons do not linger. Id. ; see also Gilbreath v. State , 1982 OK CR 147, ¶ 4, 651 P.2d 699, 700 ("Oklahoma enacted the IAD in 1977, to lessen the abuses arising out of the use of detainers."); Ward v. Com. , 62 S.W.3d 399, 402 (Ky. App. 2001) (IAD was enacted to eliminate potential abuses of the detainer system).

¶ 8 In the present case, Appellant was transferred from Mississippi to Oklahoma at the State's request pursuant to Articles IV and V of the IAD. The fact Appellant had been transferred to Oklahoma pursuant to the IAD was never acknowledged or raised until Appellant's formal sentencing hearing —well after the completion of his jury trial. And, even then, the issue was raised by the trial court—not Appellant. At the start of Appellant's formal sentencing hearing on April 13, 2015, the trial court advised he had discovered a Request for Temporary Custody filed pursuant to the IAD in the record.² The trial court directed the parties to "look into this" and specifically research the issue of waiver. The hearing was then continued until April 23, 2015. At the April 23rd sentencing hearing, the trial court heard argument on the issue and ultimately determined Appellant had "effectively waived" the statutory rights provided by the IAD. We agree.

¶ 9 Article IV provides in pertinent part:

(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

22 O.S.2011, § 1347. Article V(c) provides:

If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.

Id. (emphasis added).

¶ 10 The mandatory 120 day time limit can be extended by the proper tolling of the statute if the State can demonstrate "good cause" for such tolling. Bowie , 1991 OK CR 78, ¶ 14, 816 P.2d at 1147. Here, approximately 565 days passed from the time Appellant arrived in Tulsa on September 18, 2013, and ultimately went to trial on April 6, 2015. Notably, there is no evidence in the record before us that the State deliberately or negligently attempted to thwart Appellant's IAD rights. While the record clearly demonstrates some of the delays were for good cause, a proper record establishing good cause was not made in relation to a great many of the continuances. Nonetheless, this Court need not determine if the mandated 120 days was properly tolled as we find Appellant waived any rights granted to him under the IAD when he proceeded to trial.

¶ 11 In New York v. Hill, the United States Supreme Court held that a defendant can implicitly waive the IAD's time constraints by accepting treatment inconsistent with the IAD's time limits. 528 U.S. at 118, 120 S.Ct. at 666. In rejecting the argument that waiver is possible only by affirmative conduct, the Hill Court reasoned

such an approach would enable defendants to escape justice by willingly accepting treatment inconsistent with the IAD's time limits, and then recanting later on. Nothing in the IAD requires or even suggests a distinction between waiver proposed and waiver agreed to. In light of its potential for abuse—and given the harsh remedy of dismissal with prejudice—we decline to adopt it.

Id.

¶ 12 In the 565 days leading up to his trial, Appellant appeared before the trial court on numerous occasions without ever raising the issue of noncompliance with the IAD. By failing to raise the issue prior to the commencement of his trial, Appellant acquiesced to treatment inconsistent with the IAD's time limits. Hill, 528 U.S. at 118, 120 S.Ct. at 666 ; see also Rackley v. State , 1991 OK CR 70, ¶ 10, 814 P.2d 1048, 1051 (defendant waived any rights granted to him under the IAD when he proceeded to trial on the charges without challenging his transfer from federal to state custody); Ward, 62 S.W.3d at 403 (defendant waived his right to complain about IAD violation by acquiescing to be tried outside the required time period and failing to raise the issue of alleged noncompliance prior to the expiration of the 120 day time limit).³

¶ 13 Moreover, while the trial court...