Hale v. State

Decision Date26 February 1991
Docket NumberNo. PC-89-942,PC-89-942
Citation807 P.2d 264
PartiesAlvie James HALE, Jr., Petitioner, v. The STATE of Oklahoma, Respondent.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

ALVIE JAMES HALE, JR., Petitioner, has appealed to this Court from an order of the District Court of Pottawatomie County denying his application for post-conviction relief in Case No. CRF-83-348. A direct appeal of Petitioner's conviction was filed with this Court and the conviction and death sentence were affirmed. See Hale v. State, 750 P.2d 130 (Okl.Cr.1988). Petitioner then filed a Writ of Certiorari with the Supreme Court of the United States which was denied. See Hale v. Oklahoma, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988). Petitioner's subsequent Application for Post-Conviction relief was filed in the District Court of Pottawatomie County in December 1988. Hearings were held through the months of March, May and June, 1989, with the trial court denying the application August 17, 1989. It is this denial which the Petitioner appeals. AFFIRMED.

Robert H. Henry, Atty. Gen., David Walling, Asst. Atty. Gen., Oklahoma City, for respondent.

Scott W. Braden, Asst. Appellate Public Defender, Norman, for petitioner.

OPINION

LUMPKIN, Vice Presiding Judge:

Petitioner Alvie James Hale, Jr. has appealed to this Court from an order of the District Court of Pottawatomie County denying his application for post-conviction relief in Case No. CRF-83-348. A direct appeal of Petitioner's conviction was filed with this Court and the conviction and death sentence were affirmed. See Hale v. State, 750 P.2d 130 (Okl.Cr.1988). Petitioner then filed a Writ of Certiorari with the Supreme Court of the United States which was denied. See Hale v. Oklahoma, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164 (1988). Petitioner's subsequent Application for Post-Conviction relief was filed in the District Court of Pottawatomie County in December 1988. Hearings were held through the months of March, May and June, 1989, with the trial court denying the application August 17, 1989. It is this denial which the Petitioner appeals.

Petitioner raises thirteen (13) allegations of error. Eleven (11) of these allegations were either raised on direct appeal or could have been raised on direct appeal. Title 22 O.S.1981, § 1086 provides:

All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application.

We have previously construed this statute to bar the assertion of alleged errors which could have been raised on direct appeal, but were not. Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr.1985); Ellington v. Crisp, 547 P.2d 391, 392-93 (Okl.Cr.1976). Further, we have held that the doctrine of res judicata bars consideration in post-conviction proceedings of issues which have been, or which could have been, raised on direct appeal. Coleman v. State, 693 P.2d 4, 5 (Okl.Cr.1984); Castleberry v. State, 590 P.2d 697, 703 (Okl.Cr.1979). Petitioner is therefore barred from asserting any claims which have been, or which could have been, raised previously in his direct appeal. It is not the purpose of the Post-Conviction Procedure Act, 22 O.S.1981, § 1080, et seq., to provide a "second appeal under the mask of post-conviction application." Ellington v. Crisp, 547 P.2d 391, 393 (Okl.Cr.1976). In addition, only meritorious claims should be presented to ensure the litigation is properly expedited. See Rule 3.1, 3.2, Rules of Professional Conduct, 5 O.S.Supp.1989, Ch. 18, App. 3-A.

In his first assignment of error, Petitioner contends that he was denied effective assistance of counsel. Specifically, Petitioner argues that trial counsel failed to challenge for cause six (6) jurors during voir dire who had preconceived notions of guilt, that counsel failed to investigate or present available evidence that other persons were involved in the kidnapping and death of the victim, that counsel failed to challenge the State's theory of the offense despite the availability of contradictory evidence, and that counsel did not investigate any aspect of Petitioner's background or present any of the available mitigating evidence to rebut the State's aggravating circumstances.

In his direct appeal, Petitioner argued that he was denied effective assistance of counsel. Specifically, he raised as error trial counsel's conduct during voir dire. This Court expressly addressed that allegation and determined that defense counsel's conduct was not deficient stating that "challenges to veniremen are a matter of trial technique which should not be second guessed with the benefit of hindsight." 750 P.2d at 139.

Petitioner's claims that defense counsel failed to use available evidence which was critical to the defense, that counsel failed to present an adequate defense in both first and second stage and that counsel's performance was deficient in failing to present mitigating evidence during the second stage were also raised on direct appeal. This Court determined that decisions concerning whether certain evidence and which witnesses should be used at trial are matters of trial strategy which this Court will generally not second guess on appeal. Further, we found that Petitioner had failed to meet his burden of showing that but for trial counsel's decisions, the result of the trial would have been different. 750 P.2d at 141-142. Therefore, as Petitioner's allegations of ineffective assistance counsel were raised on direct appeal, he is barred from raising them again on post-conviction.

In his second allegation of error, Petitioner again contends that he was denied effective assistance of counsel by the court's denial of trial counsel's motion to withdraw because of personal animosity to Petitioner. This issue was raised and specifically addressed by this Court in the direct appeal. 750 P.2d at 135. Accordingly, Petitioner is barred from raising the issue again on post-conviction.

Appellant contends in his third allegation of error that he was denied his right to a fair and impartial jury when the District Court refused to grant a change of venue. This issue was also raised and specifically addressed by this Court in the direct appeal. 750 P.2d at 134. Petitioner is therefore barred from raising the issue again.

In his fourth allegation of error, Petitioner contends that he is entitled to a new trial on the basis of newly discovered evidence. This new evidence, Petitioner argues, is an affidavit of prosecution witness Janet Miller stating that if she had seen a photograph of a Nick Johnson in addition to a photograph of the Petitioner in 1983, she would not have been able to identify the Petitioner as the man she saw outside her bathroom window. Petitioner also claims that a statement by Burney Bryant that persons other than Petitioner were involved in the kidnapping and murder of Jeff Perry constitutes newly discovered evidence.

In the Appellant's brief on the direct appeal, Petitioner challenged the identification by Janet Miller. This Court refused to accede to the Petitioner's request and concede that the testimony of Ms. Miller was unreliable, stating "... even if it were, defense counsel impeached the witness' testimony, no objection to the identification was raised and the identification issue was not raised in the Petition in Error." 750 P.2d at 136. As this issue was adequately addressed on direct appeal, Petitioner is barred from again raising it on post-conviction.

Burney Bryant gave a statement to the F.B.I. two years after Petitioner was convicted. In that statement, Bryant claimed that he had a conversation with Mayo Bates in which Bates told him that Petitioner was not the only one involved in the murder of Perry. Petitioner states that the defense was furnished with only the first of two pages of the report in July 1987, receiving the second page in October 1989. After reviewing Bryant's statement at the post-conviction hearing, the trial court stated:

The statement obtained from Burney Ray Bryant a.k.a. Butch Bryant in 1986 is unreliable and does not justify relief from this Court. The Court finds specifically that said Burney Ray Bryant a.k.a. Butch Bryant is an inmate in a Federal correctional facility and has numerous felony convictions in both State and Federal courts. The Court also finds that there is evidence to suggest that the said Burney Ray Bryant a.k.a. Butch Bryant has a motive to falsely incriminate Mayo Bates.

The Applicant's evidence does nothing more than establish vague and unproven conjectures that more than one (1) person may have been involved in this murder.

The trial court's findings are supported by the record. Mr. Bryant had at least eight (8) prior convictions (State's Exhibit A). Petitioner has never disputed the fact that he participated in various aspects of the kidnapping and murder scheme. While claiming he was not the only one involved, Petitioner never offered any evidence as to the identity of any others involved in the scheme.

To be grounds for a new trial, newly discovered evidence must be such that it could not reasonably have been discovered prior to trial and have a probable effect on the verdict. 22 O.S.1981, § 952; Bowen v. State, 715 P.2d 1093, 1101 (Okl.Cr.1984); Vickers v. State, 538 P.2d 1134, 1136 (Okl.Cr.1975). Petitioner bears the burden of proving the existence of a probability that the newly discovered evidence, if presented at trial, would have changed the jury's verdict....

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