Harris v. State

• Decision Date: 20 August 2007
• Docket Number: No. PCD-2005-665.,PCD-2005-665.
• Citation: 167 P.3d 438,2007 OK CR 32
• Parties: Jimmy Dean HARRIS, Petitioner v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

167 P.3d 438

2007 OK CR 32

Jimmy Dean HARRIS, Petitioner v. STATE of Oklahoma, Respondent.

No. PCD-2005-665.

Court of Criminal Appeals of Oklahoma.

August 20, 2007.

Laura M Arledge, Capital Post-Conviction Division, Oklahoma Indigent Defense System, Norman, OK, Attorney for Petitioner.

W.A. Drew Edmondson, Attorney General of Oklahoma, Preston Saul Draper, Assistant Attorney General, Oklahoma City, OK, Attorney for Respondent.

OPINION DENYING POST-CONVICTION RELIEF AND DENYING REQUEST FOR EVIDENTIARY HEARING

CHAPEL, Judge.

¶ 1 Jimmy Dean Harris was tried by jury and convicted of Murder in the First Degree in violation of 21 O.S.1991, § 701.7, in the District Court of Oklahoma County, Case No. CF-1999-5071. On appeal, this Court reversed the punishment of death recommended by the jury and imposed by the trial court, and remanded the case for resentencing.¹ The jury at Harris's resentencing trial found that Harris knowingly created a great risk of death to more than one person, and constituted a continuing threat to society. In accordance with the jury's recommendation, the Honorable Virgil C. Black imposed the death penalty. This Court affirmed Harris's sentence.²

¶2 On April 16, 2007, Harris filed an application for capital post-conviction relief.³ The only issues appropriately raised under Oklahoma's post-conviction statutes are those which: "(1) [w]ere not or could not have been raised in a direct appeal; and (2) [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."⁴ On review, this Court must determine: "(1) whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, (2) whether the applicant's grounds were or could have been previously raised, and (3) whether relief may be granted...."⁵ The post-conviction process is not a second appeal. The doctrines of res judicata and waiver will apply where a claim either was, or could have been, raised in the petitioner's direct appeal.⁶ Harris raises three propositions of error in support of his application.

¶3 In Harris's first proposition of error he claims that trial and resentencing appellate counsel were all ineffective. In making these claims, he alleges trial counsel was ineffective in several instances and appellate counsel was ineffective for not raising these claims. A claim of ineffective assistance of trial counsel is appropriate for post-conviction review if it has a factual basis that could not have been ascertained through the exercise of reasonable diligence on or before the time of the direct appeal.⁷ A claim of ineffective assistance of appellate counsel may be raised for the first time on post-conviction.⁸ All post-conviction claims of ineffective assistance are reviewed under United States Supreme Court precedents.⁹ Harris must show that counsel's performance was deficient, and that he was so prejudiced by that performance that he was deprived of a fair trial with a reliable result.¹⁰ If we find Harris was not prejudiced by counsel's act or omission, we will not find counsel was ineffective.¹¹ To find prejudice, we must find Harris has shown "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."¹² There is a strong presumption that counsel's conduct is within the wide range of reasonable professional conduct.¹³ Harris must show "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy."¹⁴ We note in this regard that appellate counsel raised a claim of error which required Harris's death sentence to be reversed and remanded for resentencing.

¶4 Harris appears to understand that his claims of ineffective assistance of trial counsel from his first trial could all have been raised on direct appeal and are thus barred or waived. He argues that appellate counsel was ineffective for failing to raise various ineffective assistance claims against first trial counsel. However, he offers "examples of ineffective assistance of counsel, either by counsel, appellate counsel, or both." [Application at 17] Insofar as Harris intends to separately raise claims of ineffective assistance of trial counsel at the first trial, those claims are denied.

¶ 5 Harris's appellate counsel claims are divided into several categories. We first address his claims rising from his first trial and first direct appeal. Harris argues appellate counsel failed to raise several meritorious claims. Appellate counsel is not required to raise every non-frivolous issue.¹⁵

¶ 6 Harris first argues appellate counsel should have claimed that prosecutorial misconduct occurred in the first stage of Harris's trial. A thorough review of the record does not support Harris's claims. He first cites instances where, he claims, the prosecutor denigrated the defense, defense counsel and witnesses, and made improper comments to the jury. Many of the prosecutor's statements or questions were proper; Harris's objections to some improper questions were sustained; and Harris fails to show how he was prejudiced by comments which might have crossed the line. Harris also argues that the prosecutor attempted to incite societal alarm by referring to the missing murder weapon. Specific references to evidence relevant to this case, or Harris's own actions regarding potential evidence, do not constitute societal alarm. Harris suggests that the alleged misconduct in first stage closing argument amounts to structural error. Without engaging in an analysis of structural error, the record does not support his suggestion that this argument contained errors which prejudiced Harris; thus, the argument certainly could not have constituted structural error. Harris has not demonstrated prejudice from appellate counsel's failure to raise first stage prosecutorial misconduct, and this claim cannot form the basis for a finding of ineffective assistance of appellate counsel.

¶ 7 Harris next argues that appellate counsel failed to claim trial counsel was ineffective. He fails to show that he was prejudiced by appellate counsel's omission. None of these separate claims of ineffective assistance of trial counsel, which were not raised on Harris's direct appeal, form a basis for a finding of ineffective assistance of appellate counsel.

¶ 8 Harris first argues that counsel failed to find or produce microcassette tapes which he alleges were seized by the State in Harris's van. Harris raises the issue of these tapes in his motion for discovery as well. He argues the tapes, allegedly a record of his conversations with his wife Pam concerning what he could take from their home, would show he was acting in accordance with her wishes when he moved certain things from the house. Harris suggests this would have explained why he was so angry when Pam locked up his tools after he moved. Even if this were true, it completely fails to account for the evidence showing Harris took other things which Pam testified were not part of that agreement, and that Harris also defaced the home as he left. In addition, this evidence goes to Harris's relationship with Pam and his reason for being at the AAMCO transmission shop. However, Harris killed a third party, with whom he had no quarrel. Harris fails to show how introduction of the microcassette tapes would have resulted in a different outcome.

¶9 Harris argues that appellate counsel should have claimed trial counsel was ineffective because jurors at his first trial saw Harris in restraints as he was escorted to and from the courtroom and after the guilty verdict was pronounced. While Harris likens this to cases in which a person is tried while shackled, the record shows that Harris was not tried while in restraints. He fails to show any prejudice from any inadvertent view of him handcuffed before trial.¹⁶

¶ 10 Harris claims appellate counsel was ineffective for failing to interview Harris's jurors from the first trial. He suggests appellate counsel would have discovered that some jurors saw Harris in handcuffs. Harris completely fails to show how he was prejudiced by this omission; nor does he show that, as a matter of prevailing professional norms, appellate counsel must interview every trial juror.

¶11 Harris next claims that appellate counsel was ineffective for failing to raise as error several rulings of the trial court. He first claims the trial court should have instructed jurors that the affirmative defense of heat of passion is a defense to murder in the first degree. This jury instruction was not adopted until 2006, several years after Harris's trial. Beyond claiming that he "is not guilty of malice murder", [Application at 35] Harris fails to show any prejudice from the lack of this instruction. Harris next claims the trial court allowed an improper witness opinion in evidence, when a chiropractor who had treated Harris was allowed to state he did not believe Harris was mentally retarded. The trial court commented, "I think anybody can tell somebody that's mentally retarded." Harris claims this was improper as the chiropractor was an expert in something other than mental retardation, and that the trial court's comment was "a gross misstatement" which showed a lack of understanding of the issue. [Application at 35] However, Harris fails to cite any relevant law on either point. A layperson may offer an opinion as to mental retardation.¹⁷ Harris has not shown he was prejudiced by the trial court's ruling and comment. Harris next claims, without argument, that the trial court erred in allowing jurors to see Harris in handcuffs. He fails to show any prejudice arising from this claim.

¶12 In a separate subproposition, Harris claims that his counsel at his resentencing hearing failed to raise several meritorious issues. Again, insofar as Harris may...