Jennings v. State, F-85-129
| Decision Date | 07 October 1987 |
| Docket Number | No. F-85-129,F-85-129 |
| Citation | 744 P.2d 212 |
| Parties | James H. JENNINGS, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.
P. Kay Floyd, Asst. Atty. Gen., Oklahoma City, for appellee.
The appellant, James H. Jennings, was charged by Information in the District Court of Washita County, Case No. CRF-83-4, with two counts of Manslaughter in the First Degree. A jury trial was held, and a verdict of guilty on both counts was returned. The appellant was sentenced to ten (10) years on each count, to be served consecutively. From this judgment and sentence, the appellant has perfected this appeal.
On the evening of July 4, 1983, the appellant was involved in a tragic automobile collision which resulted in the deaths of Canute Police Chief Richard Oliver and his civilian passenger, Chris Spitzer. The appellant had been drinking at the Castle Club in Canute, Oklahoma. The evidence is conflicting as to the amount of alcohol consumed by the appellant. Around 10:30 P.M., the appellant left the Castle Club in his GMC Jimmy pickup truck. Apparently, the GMC Jimmy floated a stop sign as it left, catching the attention of Oliver and Spitzer, who were across the street. Oliver and Spitzer decided to follow the GMC, which was heading south on County Road. Approximately three miles outside of Canute, the GMC Jimmy turned around and began traveling north. As the GMC Jimmy topped a hill, it collided with the southbound police car. Expert testimony established that the police car was traveling at a speed of eighty to ninety miles per hour and the GMC at a speed of fifteen to twenty miles per hour. Both people in the police car were killed instantly, and the appellant suffered extensive injuries, including a broken jaw and two broken legs.
As people began to arrive at the accident scene, a reserve police officer for Canute took photographs of both vehicles. These photographs reveal that the appellant was pinned on the passenger side of the vehicle, and the driver side door was opened. A search ensued for another individual, as it appeared that someone had been thrown from the driver's side of the vehicle. When no one was found, the search was abandoned.
It took quite some time to remove the appellant from the vehicle, as his legs were pinned under the dash on the passenger side. Two police officers testified that he had the odor of alcohol as he was taken from the vehicle and placed into the ambulance. After arrival at the hospital, a nurse drew blood from appellant upon the request of one of the officers. This blood sample was submitted to the Oklahoma State Bureau of Investigation for testing of its alcohol content. The test results were admitted into evidence.
Over a month later, on August 9, a police officer and a detective went to the appellant's residence to obtain his consent to use the results of the blood alcohol test. The appellant had just been released from the hospital and was taking pain medication. This conversation was taped by the police officer. According to the tape recording, the appellant acquiesced to the test after a great deal of confusion. A few days after this confrontation, an information was filed, charging the appellant with two counts of Manslaughter in the First Degree.
About five weeks before trial, the appellant asked his attorneys, Mr. Sullivan and Mr. Burch, to investigate the possibility that he was not driving the GMC Jimmy. The appellant gave them names of several people who claimed that the appellant was the passenger rather than the driver of the vehicle. Investigation of this defense was necessary because, as indicated by trial counsel in closing arguments, appellant could not remember the events surrounding the accident. However, Sullivan and Burch summarily dismissed this possible defense because they "didn't believe it." The appellant then became worried and consulted another attorney, who encouraged Sullivan and Burch to investigate this defense. They again failed to investigate and in fact, conceded at trial that the appellant was the driver of the GMC Jimmy. The jury returned a verdict of guilty on both counts of manslaughter.
For his first assignment of error, the appellant asserts that he was denied effective assistance of counsel in direct violation of his Sixth and Fourteenth Amendment rights, according to the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Under the two-pronged test of Strickland, a defendant has the burden of showing that: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different. Id. 104 S.Ct. at 2064, 2067. A reasonable probability is a probability sufficient to undermine the outcome. Id. at 2068. As stated in the Strickland case:
The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
Id. at 2064. Although the appellant's burden is heavy, it is the opinion of this Court that the appellant has met this burden.
At the motion for new trial, appellant's newly-retained counsel, Mr. Raftery and Ms. Scoggins, introduced the testimony of the security guard at the Castle Club, who unequivocally stated that appellant was not the driver of the vehicle, but instead was the passenger. Counsel Raftery introduced further testimony tending to show that another man was present in the vehicle as it left the parking lot of the Castle Club. Counsel Scoggins sought to introduce into evidence several affidavits which named the other man in the vehicle and which corroborated the fact that this man had suffered numerous injuries in the same automobile accident. Appellate counsel has submitted the affidavit of Jerry Matheson, an accident reconstructionist. Mr. Matheson, a former chief of the Oklahoma Highway Patrol and expert in accident reconstruction for twenty-five (25) years, agreed that appellant could not have been the driver of the vehicle, due to the angle of impact and the position of the appellant in the passenger seat.
The trial exhibits include photographs, taken immediately following the accident, which clearly show that the appellant was pinned on the passenger's side of the GMC. These photographs also reveal that the driver's side door was found open, the steering wheel was bent, and blood was found in the area of the driver's seat, indicating the presence of another individual.
With such extensive evidence supporting the appellant's claim that he was not driving, it is inconceivable that trial counsel, Sullivan and Burch, did not question the identity of the driver. In fact, in opening statement, Mr. Sullivan conceded that the appellant was the driver. The appellant repeatedly asked that this possible defense be investigated and gave trial counsel names of individuals who could give information as to the driver. Trial counsel refused, claiming that he "didn't believe it."
Regardless of trial counsel's belief in the appellant's claim, this avenue of defense should have been thoroughly investigated, especially in light of the overwhelming physical evidence which corroborated the theory. Trial counsel's actions towards the most obvious defense do not even approach "a reasonable facsimile of trial strategy." Galloway v. State, 698 P.2d 940, 942 (Okla.Crim.App.1985). When counsel knows of the existence of a person or persons who possess information relevant to his client's defense, and he fails to use due diligence to investigate that evidence, such a lack of industry cannot be justified as "strategic error." Smith v. State, 650 P.2d 904, 908 (Okla.Crim.App.1982). The American Bar Association Standards for Criminal Justice, Defense Function 4-4.1, maintain that:
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.
This blatant lack of investigation indicates a severe deficiency in the performance of trial counsel.
As to the second prong of the...
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