Glossip v. State

• Decision Date: 17 July 2001
• Docket Number: No. D 98-948.,D 98-948.
• Citation: 2001 OK CR 21,29 P.3d 597
• Parties: Richard Eugene GLOSSIP, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

29 P.3d 597

2001 OK CR 21

Richard Eugene GLOSSIP, Appellant, v. STATE of Oklahoma, Appellee.

No. D 98-948.

Court of Criminal Appeals of Oklahoma.

July 17, 2001.

As Corrected August 17, 2001.

Rehearing Denied August 20, 2001.

Wayne M. Fournerat, Attorney At Law, Oklahoma City, OK, Attorney For Defendant.

Fern Smith, Jack Durrett, Asst. District Attorneys, Oklahoma County Courthouse, Oklahoma City, OK, Attorneys For The State.

G. Lynn Burch, III, Matthew D. Haire, Appellate Defense Counsel, Oklahoma Indigent Defense System; Norman, OK, Attorneys For Appellant.

W.A. Drew Edmondson, Attorney General Of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, Attorneys For Appellee.

OPINION

JOHNSON, Vice-Presiding Judge:

¶ 1 Appellant, Richard Eugene Glossip, was convicted in Oklahoma County District Court, Case No. CF 97-244, of Murder in the First Degree, in violation of 21 O.S.1991, § 701.7(A).¹ Jury trial was held June 1st through 10th, 1998, before the Honorable Richard W. Freeman, District Judge. The jury found two aggravating circumstances — (1) that the murder was especially heinous, atrocious, or cruel and (2) that Appellant would pose a "continuing threat" to society-and recommended a penalty of death. Judgment and Sentence was imposed on July 31, 1998.

¶ 2 Appellant perfected his appeal by filing his Petition in Error on February 1, 1999. His initial brief was filed on April 17, 2000. The State's brief was filed on August 15, 2000, and Appellant's Reply brief was filed September 5, 2000. Appellant also filed on April 17, 2000, an Application for Evidentiary Hearing on Jury Misconduct Claims, an Application for Evidentiary Hearing on Sixth Amendment Claims, and Appellant's Notice of Extra-Record Evidence Supporting Prosecutorial Misconduct and Violations of Due Process Clauses of the Oklahoma and Federal Constitutions. We remanded the case to the district court for an evidentiary hearing. See Order Remanding to the Presiding Judge of Oklahoma County for an Evidentiary Hearing on Claims of Jury Misconduct, Ineffective Assistance of Counsel, and Prosecutorial Misconduct, etc., D 1998-948 (Okl.Cr. December 7, 2000)(not for publication). The hearing was held March 5, 2001, before the Honorable Twyla Gray, District Judge, and the trial court's Findings of Fact and Conclusions of Law After Evidentiary Hearing were filed in this Court on March 16, 2001. Both parties filed Supplemental Briefs on March 23, 2001.

¶ 3 Appellant raised twelve propositions of error in his appeal. Two propositions required fact-finding outside the appeal record and were addressed at the March 5, 2001 evidentiary hearing. The claim of jury misconduct was also addressed at the evidentiary hearing. Having reviewed the entire record before us, we have determined that oral argument is not warranted or necessary as further argument on the claims and issues raised in this case would not be helpful or convincing to the Court.

¶ 4 Only a brief statement of facts is necessary, because Appellant's claim of ineffective assistance of counsel is compelling and requires relief. For the reasons set forth below, we find Appellant's conviction for Murder in the First Degree should be and hereby is REVERSED AND REMANDED FOR NEW TRIAL.

¶ 5 On January 7, 1997, the body of Barry Van Treese was discovered in Room 102 of the Best Budget Inn in Oklahoma City. Van Treese had been severely beaten and died as a result of blood loss and blunt force trauma to his head. Following the discovery of the body, Oklahoma City police detectives interviewed Appellant, who was the manager of the Best Budget Inn. They also interviewed Justin Sneed, who was charged as a co-defendant in this case and who worked for Appellant as a maintenance man in exchange for a free room at the motel. At Appellant's trial, Sneed said he beat Van Treese to death by hitting him ten or fifteen times with a baseball bat. Sneed testified he killed Van Treese because Appellant asked him to do it. Sneed admitted he made an agreement with the State to testify against Appellant in exchange for a sentence of life without parole.

¶ 6 At all times prior to trial and during trial, Appellant denied involvement in the murder of Barry Van Treese. Although his statements to police officers changed somewhat between his first and second police interview, he consistently denied encouraging or telling Sneed to commit the murder. Appellant only admitted his involvement in the murder "after the fact." He admitted he was afraid to tell the police what he knew and admitted he assisted Sneed by helping conceal the murder scene.

¶ 7 On appeal and at trial, the State's theory of the case remained the same-Sneed was a poor, vulnerable young man and Appellant masterminded the murder by manipulating (asking or telling) Sneed to do it. The State concedes the only "direct evidence" connecting Appellant to the murder was Sneed's trial testimony. No forensic evidence linked Appellant to murder and no compelling evidence corroborated Sneed's testimony that Appellant was the mastermind behind the murder.

¶ 8 The evidence at trial tending to corroborate Sneed's testimony was extremely weak. We recognize a conviction cannot be had upon the testimony of an accomplice unless it is "corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof." 22 O.S.Supp.2000, § 742. However, we need not reach Appellant's claim going to the sufficiency of the evidence,² because trial counsel's conduct was so ineffective that we have no confidence that a reliable adversarial proceeding took place.

¶ 9 Appellant raised twelve propositions of error. Although several errors occurred at trial which alone might necessitate reversal, we only discuss those matters impacting our decision today and those which should be considered if Appellant is retried for this crime.

¶ 10 In Proposition Two, Appellant claims his trial counsel represented him "in a pervasively ineffective manner to the profound prejudice of Appellant, leading to a collapse of the adversarial process and a denial of Appellant's right to counsel guaranteed by the Sixth Amendment." We agree and preface our analysis of this claim by emphasizing the State's evidence was circumstantial except for the testimony of Justin Sneed.

¶ 11 Analysis of this claim begins with the presumption that trial counsel was competent to provide the guiding hand that the accused needed, and therefore the burden is on the accused to demonstrate both a deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland sets forth a two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the defendant makes both showings, "it cannot be said that the conviction .... resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687, 104 S.Ct. at 2064. Appellant must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. at 688-89, 104 S.Ct. at 2065-66.

¶ 12 Appellant claims his trial counsel: (1) failed to engage in meaningful cross-examination or utilize potent impeachment evidence;³ (2) failed to adequately prepare by familiarizing himself with discovery obtained from the State; (3) failed to conduct proper voir dire; (4) failed to object to improper double hearsay testimony; (5) failed to move the trial court to answer the jury's question regarding culpability for not rendering aid; and (6) failed to object to improper victim impact evidence. Appellant filed an Application for Evidentiary Hearing on Sixth Amendment Claims, pursuant to Rule 3.11(B)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App.(2001). Although some of Appellant's ineffectiveness claims are obvious from simply reading the appeal record,⁴ several, including trial counsel's failure to utilize available and potent impeachment evidence against Justin Sneed, are supported by matters outside the record.⁵

¶ 13 Reviewing the claims in the Application, in conjunction with the serious allegations made and the record before us, this Court determined Appellant had shown "by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence." Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001); Order Remanding to the Presiding Judge of Oklahoma County for an Evidentiary Hearing on Claims of Jury Misconduct, Ineffective Assistance of Counsel, and Prosecutorial Misconduct, etc., D 1998-948 (Okl.Cr. December 7, 2000)(not for publication). We remanded for an evidentiary hearing.⁶ We directed the trial court to enter appropriate findings of fact and conclusions of law and to determine: (1) the availability of the evidence or witness; (2) the effect of the evidence or witness on the trial court proceedings; (3) whether the failure to use a witness or item of evidence was trial strategy; and (4) if such evidence or witness was cumulative or would have impacted the verdict rendered. See Rule 3.11(B)(3)(b)(iii).

¶ 14 The evidentiary hearing was held March 5, 2001, and the trial court's Findings of Facts and Conclusions of Law were filed in this Court on March 13, 2001. Ultimately, the trial court found Appellant had shown by "clear and convincing evidence that he was prejudiced by the ineffectiveness of counsel and that this Court cannot have confidence in the outcome of the...