Malone v. State

• Decision Date: 11 January 2013
• Docket Number: No. D–2010–1084.,D–2010–1084.
• Citation: 293 P.3d 198
• Parties: Ricky Ray MALONE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

293 P.3d 198

Ricky Ray MALONE, Appellant,

v.The STATE of Oklahoma, Appellee.

No. D–2010–1084.

Court of Criminal Appeals of Oklahoma.

Jan. 11, 2013.

An Appeal from the District Court of Comanche County; the Honorable Mark R. Smith, District Judge.

Gary Henry, Matthew Haire, Capital Trial Division, Oklahoma Indigent Defense System, Norman, OK, for Defendant.

Fred Smith, District Attorney, Comanche County Courthouse, Lawton, OK, for the State.

Lee Ann Jones Peters, James H. Lockard, Homicide–Direct Appeals Division, Oklahoma Indigent Defense System, Norman, OK, for Appellant.

E. Scott Pruitt, Attorney General of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, for the State.

OPINION

LUMPKIN, Judge.

¶ 1 Appellant, Ricky Ray Malone, was tried by jury and convicted of First Degree Murder (21 O.S.2001, § 701.7) in the District Court of Comanche County, Case Number CF–2005–147. In accordance with the jury's recommendation, the trial court imposed a sentence of death. This Court affirmed Appellant's conviction, but reversed the sentence and remanded the case for resentencing. Malone v. State, 2007 OK CR 34, 168 P.3d 185.

¶ 2 Appellant waived his right to jury trial and a resentencing trial was held October 18–29, 2010, before the Honorable Mark R. Smith.¹ The trial court found the existence of two (2) aggravating circumstances: (1) “the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution”; and (2) “the victim of the murder was a peace officer ..., and such person was killed while in performance of official duty.” 21 O.S.2001, § 701.12.² The trial court further found that the aggravating circumstancesoutweighed the mitigating circumstances presented and sentenced Appellant to death. Appellant now appeals this sentence.

FACTS

¶ 3 In the late night hours of December 25, 2003, Appellant took his sister's car to a county road in rural Cotton County just east of Devol, Oklahoma. ³ He set up a methamphetamine laboratory and started cooking methamphetamine. Appellant's four meth-making comrades, Tammy Sturdevant (Appellant's sister), Tyson Anthony (her boyfriend), James Rosser and Jamie Rosser (husband and wife) had gathered all of the ingredients necessary to make methamphetamine and loaded them in the car earlier in the day. Appellant went to complete the cook alone because Anthony became ill and stayed behind.

¶ 4 Before Appellant left he asked Anthony if he could borrow his 9mm pistol in case he got pulled over or had trouble with the police. Anthony understood that Appellant wanted the pistol so he could shoot and kill any officer that tried to take him to jail. Appellant had been arrested for possession of methamphetamine on November 10, 2003. On December 21, 2003, he was arrested for conspiracy to manufacture methamphetamine. Following those arrests, Appellant explained to Anthony and his other meth-making comrades that he could not go back to jail because he would be unable to bond out. He threatened that he would shoot and kill the officers before he went back to jail.

¶ 5 Appellant had the lab set up on the ground outside the white four-door car. As the chemicals processed, Appellant fell asleep in the front seat. At 6:20 a.m., the local newspaper delivery person, Abigail Robles, discovered Appellant. Fearing that he was dead, Robles contacted a family friend that lived nearby. Robles traveled to Trooper Nik Green's home and woke him. Green was not scheduled to be on duty until 9:00 a.m. on that date so he reported the circumstances to the Oklahoma Highway Patrol dispatch. When Green learned that no one else was available, he volunteered to enter service early and check out the situation. Trooper Green went on duty at 6:37 a.m., and shortly thereafter he informed dispatch that he had discovered the white car.

¶ 6 Green's patrol unit was clearly marked as an official Oklahoma Highway Patrol car. Green pulled-up behind the white four-door car. His headlights illuminated the vehicle and the ground around the car. Apparently, Green observed the items on the ground and identified them as a meth lab.

¶ 7 Trooper Green was dressed in his OHP brown uniform. He contacted Appellant in the front seat of the car. Green woke Appellant by shining his flashlight and speaking to him. Green informed Appellant he was under arrest. Green had Appellant exit the car and got him face-first on the ground in front of the patrol unit. Green handcuffed Appellant's right wrist. Appellant got up and started fighting Green. Appellant later told his meth-making comrades that he fought Green because he did not want to go back to jail.

¶ 8 A tremendous struggle ensued on the side of the road. Green dropped his service weapon during the fight and resorted to striking Appellant with his baton. Appellant lost the pistol that Anthony had loaned him. The two men fought down into a ditch, through a barb wire fence and back again into the ditch. During the struggle Appellant found Green's service weapon laying on the ground. This gave Appellant the upper hand. Appellant put the gun to Green's head and Green stopped struggling.

¶ 9 Appellant forced Trooper Green to lie face down in the ditch with his arms and legs spread out wide. Appellant was on top of Green so he could not get back up. Green told Appellant that he could run and leave him if he wanted. Green explained to Appellant that he had children and pleaded with him “[i]n the name of Jesus Christ.” (Tr. 5B, 975).

¶ 10 Appellant repeatedly asked Green where the handcuff keys were at. When Green indicated that he did not know where the key was at, Appellant explained “[t]hen you'll die.” (Tr. 5B, 977). Green continued to plead for Appellant not to harm him throughout the exchange. Appellant asked Green “[w]here did you drop your gun, at?” ⁴ Green pleaded “Don't shoot me.” (Tr. 5b, 982). Appellant promised that he would not shoot Green. After several more requests for the keys, Green told Appellant that the keys were in his pocket. Appellant rolled Green slightly and searched his pocket. Green asked Appellant if he found the keys. When Appellant responded negatively, Green volunteered: “There's some more in my unit.” Appellant stated, “I don't need to know.” (Tr. 5B, 999).

¶ 11 Unable to find the handcuff keys or the other firearm, Appellant could not prevent the Trooper from taking further action after he left. Appellant decided to kill Trooper Green. Green recognized Appellant's thought process and began to pray. Appellant shot Green in the back of the head. Eleven seconds later, Appellant shot Green in the back of the head for the second time. Appellant cleaned up the meth lab, put the components in the car, and drove away.

¶ 12 Appellant drove directly to his sister's house. He told all four of his meth-making comrades: “I just killed [sic] an f'ing Hi–Po.” (Tr. 5B, 1021, 1037). Appellant explained that he killed the cop to avoid going back to jail. Appellant's comrades helped him get rid of the car, the gun, and his clothes. Appellant apologized to each of the four. When he noticed that Jamie Rosser was upset the following evening, Appellant explained to her that he had gotten everything cleaned up and that he had left nothing to identify to him. Mrs. Rosser asked him about the patrol car video and Appellant responded “Oh, fuck.” (Tr. 3, 143–44).

¶ 13 Based upon the dashcam video from Trooper Green's patrol unit, Appellant was quickly identified. The Oklahoma State Bureau of Investigation questioned Appellant about Trooper Green's murder. Appellant informed Agent Perry Unruh that Tyson Anthony's account of what had occurred was “probably true” but then claimed “maybe it was an accident.” (Tr. 5B, 1045–49). When questioned further Appellant stated: “I can't, I can't say anything or I'll get the death penalty.” (Tr. 4, 104).

TRIAL ISSUES

¶ 14 Appellant contends in his second proposition of error that in two separate instances he was denied the effective assistance of counsel. This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Mitchell v. State, 2011 OK CR 26, ¶ 139, 270 P.3d 160, 190. The Strickland test requires an appellant to show: (1) that counsel's performance was constitutionally deficient; and (2) that counsel's deficient performance prejudiced the defense. Bland v. State, 2000 OK CR 11, ¶ 112, 4 P.3d 702, 730 ( citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). Unless the appellant makes both showings, “it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Ryder v. State, 2004 OK CR 2, ¶ 85, 83 P.3d 856, 875 ( quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).

¶ 15 The Court begins its analysis with the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Appellant must overcome this presumption and demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. This Court has stated that the issue is whether counsel exercised the skill, judgment and diligence of a reasonably competent defense attorney in light of his overall performance.Mitchell, 2011 OK CR 26, ¶ 140, 270 P.3d at 190.

¶ 16 When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Phillips v. State, 1999 OK CR 38, ¶ 103, 989 P.2d 1017, 1043 ( citing Strickland, 466 U.S. at 697, 104 S.Ct. at 2069). To demonstrate prejudice an appellant must show that there is a reasonable probability that the outcome of the trial would have been different but for counsel's unprofessional errors. Bland, 2000 OK CR 11, ¶ 112, ...