Johnson v. State, F-78-396

• Decision Date: 22 October 1980
• Docket Number: No. F-78-396,F-78-396
• Citation: 620 P.2d 1311
• Parties: Reford Dewayne JOHNSON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1311

620 P.2d 1311

Reford Dewayne JOHNSON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-78-396.

Court of Criminal Appeals of Oklahoma.

Oct. 22, 1980.

Rehearing Denied Jan. 7, 1981.

An appeal from the District Court of Oklahoma County, Creston B. Williamson, Judge.

Reford Dewayne Johnson, appellant, was convicted of Robbery With Firearms, After Former Conviction of a Felony; was sentenced to sixty (60) years' imprisonment, and appeals. AFFIRMED.

Bay, Hamilton, Lees, Spears & Verity, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Michael Jackson, Asst. Atty. Gen., Jim Wilcoxen, Legal Intern, for appellee.

OPINION

BRETT, Judge:

The sole issue on appeal is the effectiveness of legal representation afforded this appellant by a young assistant public defender. His conviction for Robbery With Firearms, After Former Conviction of a Felony, in Oklahoma County Case No. CRF-77-3762, resulted in a sentence of sixty (60) years' imprisonment.

The core of the State's case consisted of identification of the appellant by the victim, M. W., and a young witness. The victim testified that two young black men robbed her at about 1:00 to 1:15 p. m. October 7, 1977, in the vicinity of the Oklahoma Health Sciences Center. She positively identified the taller man, who had held a gun on her, as a result of having looked directly into his face for several minutes. However, the description she gave the police was vague: A black male, 18 to 30 years of age, wearing a dark hat with a rim; having large eyes and possibly with hair on his chin. At the preliminary hearing she testified, "I was too scared. I don't remember anything else."

After four lineups, two photographic and two in person, she was able to identify the defendant at the second personal lineup, more than a week following the robbery. His presence at the first three showups, personally or by photograph, was not established. A 14-year-old girl identified the defendant as the robber after testifying that she hadn't really gotten a good look at him as she witnessed the crime from a half block distance.

For the defense, a male friend testified that he had been with the appellant until 12:30 or 12:45 p. m. and again at 2:00 p. m. He testified that he and the appellant had begun drinking at about 12:15 and that he wasn't sure of how many crimes he himself had been convicted. The appellant's common-law wife testified that she was with the appellant from about 12:55 to 1:30 p. m.

There is one assignment of error, consisting of several contentions, in which the appellant alleges that trial counsel was ineffective, abridging his Sixth Amendment right to adequate counsel and rendering the trial a farce and a mockery of justice. Specifically, the following alleged acts were said to be characteristic of inadequate representation: (1) failure to use the preliminary hearing transcript to highlight discrepancies in testimony at trial; (2) inadequate cross-examination; (3) inadequate defense; (4) failure to object to evidence, request an instruction, or enter a motion; (5) failure to object to identification of appellant by the State's witnesses or to request an in-camera hearing on identification; (6) failure to insure preservation of voir dire, opening statement, and closing argument for appellate review.

Before addressing the Sixth Amendment right, this Court must elucidate the standard by which this issue will be reviewed. The established rule in this jurisdiction is that effective assistance of counsel must be measured by a determination of whether or not the purported representation was a sham. As stated in Eide v. State, Okl.Cr., 551 P.2d 275 (1976) at page 277:

(R)elief upon the ground of ineffective counsel will be granted only when the trial is a farce or mockery of justice, or is shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.

Cited with approval in Hill v. State, Okl.Cr., 567 P.2d 516 (1977).

Recently, however, the United States Court of Appeals for the 10th Circuit issued an opinion which is in accord with a majority of the other circuits in raising the standard to one more consistent with the constitutional guarantee of effective assistance of counsel. See Dyer v. Crisp, 613 F.2d 275 (10th Cir. 1980). The case originated in an Oklahoma State court, and the federal court concluded that, although the legal representation lacked vigor, it did not fall below the minimum standard of reasonable skill and competence. Abandoning the sham and mockery test, that court held:

The 'sham and mockery' test originally developed under Fifth and Fourteenth Amendment due process analysis. See Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667 (D.C.Cir.) cert. denied 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945). Thus, unless counsel was so grossly inadequate as to render the entire trial a mockery of the judicial adversary system such that it shocked the conscience of the reviewing courts, it did not amount to a constitutional deprivation. Following the Supreme Court's recognition in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) that the Sixth Amendment guarantees the right to the assistance of counsel to criminal defendants, the courts have focused less on due process rights and more on the Sixth Amendment in evaluating assistance of counsel issues. The Sixth Amendment has been interpreted as guaranteeing the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90...