Mayes v. State

• Decision Date: 10 July 1996
• Docket Number: No. PC-95-1218,PC-95-1218
• Citation: 921 P.2d 367
• Parties: William Raymond MAYES, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 367

921 P.2d 367

William Raymond MAYES, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-95-1218.

Court of Criminal Appeals of Oklahoma.

July 10, 1996.

Mark Hendricksen, Lanita Hendricksen, El Reno, C.S. Thornton, Oklahoma City, for Petitioner.

W.A. Drew Edmondson, Attorney General of Oklahoma, Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals, Oklahoma City, for Respondent.

LUMPKIN, Judge.

Petitioner William Raymond Mayes appeals to this Court from the denial of post-conviction relief by the District Court of Jefferson County, Case No. CRF-89-77. At the conclusion of a jury trial, Petitioner was convicted of Murder in the First Degree (21 O.S.Supp.1982, § 701.7) and Conspiracy to Commit Murder (21 O.S.1981, § 421). After finding the presence of one aggravating circumstance--that the murder was especially heinous, atrocious or cruel--the jury recommended punishment of death for murder and ten (10) years and a $5,000 fine for conspiracy. This Court affirmed the convictions on direct appeal, and certiorari was denied by the Supreme Court of the United States. Mayes v. State, 887 P.2d 1288 (Okl.Cr.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995).

I.

Petitioner raised the following propositions of error in his application to the trial court: (1) ineffective trial counsel (failure to present mitigating evidence); (2) ineffective appellate counsel (failure to present cumulative error argument); (3) cumulative error; (4) this Court improperly weighed evidence presented at the trial; (5) the death penalty statute is unconstitutional; (6) error in instruction (failure to define to the jury what "life without parole" meant). In the application, he also requested an evidentiary hearing to prove the claims.

The trial court denied relief in an order dated August 25, 1995, and filed August 28, 1995. ¹ No evidentiary hearing was held. Petitioner appeals that denial to this Court, setting forth the following propositions: (1) ineffective trial counsel (failure to present mitigating evidence); (2) ineffective appellate counsel (failure to present cumulative error argument); (3) cumulative error ((a) improper questioning of the jury by the trial court concerning ability to impose the death penalty; (b) admission of inadmissible, irrelevant and prejudicial evidence in the form of a civil settlement; (c) improper evidence of prior bad acts and Petitioner's propensity for violence; (d) improper evidence of polygraph examination; (e) error by the trial court in precluding defense counsel from asking questions concerning bias; (f) inadmissible hearsay statements; (g) error in denying proper cross-examination of key witness); (4) this Court improperly weighed evidence presented at the trial; (5) the death penalty statute is unconstitutional; (6) error in instruction (failure to define to the jury what "life without parole" meant); (7) error by the district court in denying post-conviction relief.

II.

The post-conviction procedure is not intended to be a second direct appeal. Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995). This Court does not consider an issue which was raised on direct appeal (and is therefore res judicata ) or an issue which could have been raised on direct appeal but which was not (and is therefore waived). Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994), cert. denied, --- U.S. ----, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992).

III.

In his first proposition of error, Petitioner claims he received ineffective assistance of counsel at the trial level. He bases this on affidavits presented to this Court on direct appeal from various friends and family members who claimed they would have presented mitigating evidence showing Petitioner did not deserve the death penalty. He also presented to the district court in his post-conviction application an affidavit from a psychologist.

We addressed this issue on direct appeal. Mayes, 887 P.2d at 1314-16. Consequently, it is res judicata, and we shall not consider it again. Berget v. State, 907 P.2d 1078, 1081 (Okl.Cr.1995).

That does not dispose of the affidavit from the psychologist. The record reflects that the psychologist, Michael M. Gelbort, PhD., did not interview Petitioner until March 1995, after Petitioner's direct appeal was handed down. There is no evidence in the direct appeal record that Petitioner had any kind of a mental deficiency. Accordingly, this claim is properly before this Court on post conviction. See 22 O.S.1991, § 1080(D)²; Berget, 907 P.2d at 1085. We find no merit to the claim, however.

Our analysis of a claim of ineffective trial counsel begins with the presumption trial counsel was competent; therefore, the burden is on Petitioner to demonstrate both a deficient performance and resulting prejudice. Fisher v. State, 736 P.2d 1003, 1011-12 (Okl.Cr.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984)). Petitioner must demonstrate counsel's representation was unreasonable under prevailing professional norms, and the challenged action could not be considered sound trial strategy. Fisher, 736 P.2d at 1012 (citing Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2064-65; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). To establish prejudice, Petitioner must show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is one that undermines confidence in the outcome. Id. Although we consider the totality of the evidence which was before the fact-finder, the "ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Fisher, 736 P.2d at 1012 (quoting Strickland, 466 U.S. at 694-95, 104 S.Ct. at 2068). We now turn to Petitioner's specific allegation.

Petitioner claims counsel was ineffective at trial because he did not present any evidence of Petitioner's mental disorders at trial. He claims the neuropsychological evaluation of Petitioner in 1995 shows he suffers from cognitive dysfunction associated with brain damage. The evaluation shows Petitioner had a below-normal intelligence quotient, and his cognitive handicaps allowed him to learn very slowly. His problem solving and reasoning abilities were "moderately impaired," and he exhibited characteristics "indicative of behavioral disinhibition or impulsivity." Despite these defects, the psychologist opined Petitioner was able to "appear 'normal' outwardly," although testing would have revealed "dysfunction in the form of deficits in reasoning, judgment, problem solving, insight, left side sensory motor abilities and slowed cognition" and would have shown Petitioner was "prone to making odd, poorly thought out decisions which reflect a lack of foresight and anticipation of the outcome of his actions." However, the psychologist also admitted in his affidavit Petitioner's mental status "certainly does not completely explain his current situation."

Based on this evidence, Petitioner's claim must fail. The psychologist admitted in his affidavit Petitioner would appear outwardly normal; therefore, there would be nothing indicating Petitioner exhibited any mental impairment. Accordingly, Petitioner has failed to demonstrate counsel's representation was unreasonable under prevailing professional norms: we know of no rule requiring an attorney to conduct a mental evaluation on a defendant who exhibits no signs of needing one, especially as the psychologist did not explain how Petitioner's impairment contributed to his actions in this case.

Furthermore, Petitioner has failed to show prejudice. That Petitioner may have been a slow learner does not mean he could not learn. Petitioner has failed to present evidence to this Court showing that by the time he reached adulthood, he had not learned killing was wrong. That he had a "lack of foresight and anticipation of the outcome of his actions" in no way detracts from the evidence at trial, which showed Petitioner was propositioned well in advance of a plan to kill the victim, and told several friends he was to receive money and a car for his efforts in helping or finding someone who would help kill the victim. After considering the affidavit and comparing it to the evidence adduced at trial, we find Petitioner has failed to present evidence that his 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." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

For these reasons, this proposition is without merit.

IV.

For his second proposition of error, Petitioner claims his counsel on direct appeal was ineffective because she failed to present a "cumulative error" argument. The mere failure of direct appeal counsel to raise a claim does not, in and of itself, deprive a petitioner of "reasonably effective assistance" of counsel, Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, which would amount to constitutionally ineffective counsel on direct appeal. As one federal appeals court has phrased it, "[b]ecause law is not an exact science, an ordinary, reasonable lawyer may fail to recognize or to raise an issue, even when the issue is available, yet still provide constitutionally effective assistance." Pelmer v. White, 877 F.2d 1518, 1523 (11th Cir.1989). Here, Petitioner has not shown that, even if his counsel's performance fell below that which we expect of counsel, he was prejudiced by that failure. Indeed, we conducted a plain-error review of the cumulative error argument in the petition for rehearing, and found it lacking. Mayes, 887...