Mann v. State

• Decision Date: 15 July 1993
• Docket Number: No. PC-90-0866,PC-90-0866
• Citation: 856 P.2d 992
• Parties: Anthony James MANN, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 992

856 P.2d 992

Anthony James MANN, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-90-0866.

Court of Criminal Appeals of Oklahoma.

July 15, 1993.

ORDER AFFIRMING DISTRICT COURT DENIAL OF POST-CONVICTION RELIEF

Anthony James Mann was tried by jury and convicted of the first degree murder of his ex brother-in-law, Charlie Keene, in Grady County District Court, Case No. CRF-83-45. He was sentenced to death. This Court affirmed judgment and sentence. Mann v. State, 749 P.2d 1151 (Okl.Cr.1988) cert. denied, 488 U.S. 877, 109 S.Ct. 193, 102 L.Ed.2d 163 (1988). Petitioner filed an Application for Post-Conviction Relief in Grady County District Court which held an evidentiary hearing on the matter and denied the application. Petitioner is now before us on appeal from this denial.

In the interest of finality of judgment we first address a collateral issue vigorously asserted by the petitioner. This is that the denial of confidential contact communication between petitioner and counsel has prejudiced the petitioner in the instant appeal by rendering his brief, "of necessity incomplete". We expressly rejected this argument in Mann v. State (Okl.Cr.1993) (64 OBJ 85, January 16, 1993), and we reject it here.

In separate trials four men were tried, convicted, and sentenced to death for the murder of Charlie Keene. Petitioner alone remains on death row. William Wayne Thompson was resentenced to life imprisonment following remand by the United States Supreme Court. See Thompson v. State, 724 P.2d 780 (Okl.Cr.1986), rev'd, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (Eighth and Fourteenth Amendments prohibit execution of defendant convicted of first-degree murder for offense committed when defendant was 15 years old); resentenced, 762 P.2d 958 (Okl.Cr.1988). Richard Jones was acquitted on retrial following reversal by this Court. See Jones v. State, 738 P.2d 525 (Okl.Cr.1987). Bobby Joe Glass was killed on death row.

We affirm the district court denial of petitioner's application for post-conviction relief.

Adjudication of this appeal is governed by the Post-Conviction Procedure Act, 22 O.S.1981, § 1080, et seq. Appeal from denial of a Motion for Post-Conviction Relief is not an opportunity to raise novel issues, resubmit issues already determined in the original appeal, or to raise issues which could have been raised on direct appeal, but were not. Of the thirty-one (31) issues raised in this appeal, all but two (2) are either barred by the doctrine of res judicata for they were raised on direct appeal, or waived for they were not. See Rojem v. State, 829 P.2d 683 (Okl.Cr.1992); Coleman v. State, 693 P.2d 4 (Okl.Cr.1984); Smith v. State, 546 P.2d 1351 (Okl.Cr.1976), 22 O.S.1981, § 1086.

One issue, that the Court failed to address an issue raised on direct appeal, is waived for failure to urge it within twenty days of judgment in a Motion for Rehearing. The viable issue which will be addressed on the merits is ineffective assistance of appellate counsel.

The charge of ineffectiveness is key to this appeal. If we find ineffective assistance of appellate counsel, the doctrines of waiver and res judicata do not bar our consideration of the propositions raised in the application for post-conviction relief. Banks v. State, 810 P.2d 1286 (Okl.Cr.1991).

An accused person is guaranteed assistance of counsel by both the state and federal constitutions. See Okla. Const. art. II, §§ 7 and 20; U.S. Const. amends 6 and 14. This assistance must be reasonably effective to satisfy the constitutional guarantee. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr.1985) (Strickland standard applied to appellate counsel); Banks v. State, 810 P.2d at 1290 (Strickland standard expressly adopted under state constitution).

An appellate brief is constitutionally sufficient if it raises the relevant issues for the court to consider and address. Banks, Id. In the original appeal counsel vigorously raised relevant, well-reasoned issues. We find no evidence of ineffectiveness in the issues raised. See Tibbetts v. State, 778 P.2d 925 (Okl.Cr.1989); Guy v. State, 778 P.2d 470 (Okl.Cr.1989).

Counsel did not raise every conceivable issue. This is not, as post-conviction counsel argues, evidence of ineffectiveness. We made this point in Cartwright, 708 P.2d at 594 by quoting Chief Justice Burger who, writing for the majority in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), quoted Justice Jackson:

Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one ... [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one. (citation omitted).

While all issues which are not frivolous need not be raised in an effective appellate brief, failure to raise an issue warranting reversal, modification of sentence, or remand for resentencing may well prove counsel was ineffective. So too, could inartful argument which is found to be persuasive when it is reasserted. We have reviewed each of the issues raised herein which were or could have been raised on direct appeal, and find none of them warrant reversal, modification, or resentencing. Consequently we find no evidence of ineffective assistance of appellate counsel. These issues will not be considered on the merits as they are barred by res judicata or waived.

Petitioner correctly asserts this Court overlooked one of his propositions of error in the original appeal: that the accumulation of error raised in the original appeal warrants reversal. This issue was raised in the context of another proposition of error, and was not presented in the usual format as a separately numbered proposition of error. When Petitioner did not raise this issue via a Motion for Rehearing within twenty (20) days of the original opinion, the mandate was issued and the judgment became final. Court of Criminal Appeals Rule 3.14, 22 O.S.Supp.1990, Ch. 18, App. This issue is waived. However, because denial of the issue on procedural grounds raises the specter of fundamental unfairness, for this is the very issue which required reversal in Jones, 738 P.2d at 531, we will make further comment.

The apparent force of comparison between the Mann and Jones cases diminishes upon analysis of the facts. First, co-defendants Mann and Jones were tried separately. The only error common to both trials was the introduction of two gruesome pictures of the victim. Beyond this commonality, the cases contrast sharply.

Three errors combined in Jones to cause reversal: (1) introduction of the two gruesome photographs of the decomposing body of the victim; (2) admission of hearsay statements implicating Jones made by co-defendants to friends and relatives in the hours following the murder; the admission of which denied Jones his constitutional right of confrontation; and (3) prosecutorial misconduct consisting of (a) repeated requests for sympathy for the victim...