McCarty v. State

• Decision Date: 17 May 1999
• Docket Number: No. PC-98-321.,PC-98-321.
• Citation: 989 P.2d 990,1999 OK CR 24
• Parties: Curtis Edward McCARTY, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

989 P.2d 990

1999 OK CR 24

Curtis Edward McCARTY, Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-98-321.

Court of Criminal Appeals of Oklahoma.

May 17, 1999.

Randy D. Evers, Norman, for Petitioner on appeal.

No Response Necessary From the State.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF AND EVIDENTIARY HEARING

LUMPKIN, Vice-Presiding Judge:

¶ 1 Petitioner Curtis Edward McCarty was tried and convicted of First Degree Murder in the District Court of Oklahoma County, Case No. CRF-85-2637. He was sentenced to death. He appealed his conviction to this Court in Case No.F-86-343. We reversed and remanded for a new trial, finding the record "replete with error committed during both stages of the trial...." McCarty v. State, 1988 OK CR 271, 765 P.2d 1215, 1222. ¶ 2 Petitioner was retried in September of 1989. For a second time, Petitioner was convicted of First Degree Murder and sentenced to death. For a second time, Petitioner appealed. On this occasion, we affirmed Petitioner's murder conviction. McCarty v. State, 1995 OK CR 48, 904 P.2d 110 (Lumpkin, J., concurring in part, dissenting in part). However, we reversed Petitioner's death sentence and remanded for a new sentencing stage proceeding because the trial court had refused to instruct the jury on the requested alternative sentencing option of life imprisonment without parole.

¶ 3 Petitioner's resentencing proceeding was held in April of 1996 as a jury trial. For the third time, the jury recommended death. The trial court sentenced Petitioner accordingly. This Court affirmed his sentence in McCarty v. State, 1998 OK CR 61, 977 P.2d 1116. Petitioner filed his Original Application for Post-Conviction Relief in this Court on July 31, 1998 in accordance with 22 O.S.Supp. 1995, § 1089.

¶ 4 Before considering Petitioner's claims, we must again reiterate the narrow scope of review available under the amended Post-Conviction Procedure Act. As we have said numerous times:

[t]he Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 933 P.2d 327, 330 (Okl.Cr.1997) (interpreting Act as amended) cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997); Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995) (same conclusion under Act before amendments). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims which could have been raised in previous appeals but were not are generally waived; and claims raised on direct appeal are res judicata. Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994),

cert. denied, 516 U.S. 840, 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).

Conover v. State, 1997 OK CR 39, 942 P.2d 229, 230. These procedural bars still apply under the amended Act. We have noted the new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker, 933 P.2d at 331. Under 22 O.S.Supp.1995, § 1089(C)(1), only claims which "[w]ere not and could not have been raised" on direct appeal will be considered. A capital post-conviction claim could not have been raised on direct appeal if (1) it is an ineffective assistance of trial or appellate counsel claim which meets the statute's definition of ineffective counsel; or (2) the legal basis of the claim was not recognized or could not have been reasonably formulated from a decision of the United States Supreme Court, a federal appellate court or an appellate court of this State, or is a new rule of constitutional law given retroactive effect by the Supreme Court or an appellate court of this State. 22 O.S.Supp.1995, §§ 1089(D)(4)(b), 1089(D)(9). Should a Petitioner meet this burden, this Court shall consider the claim only if it "[s]upports a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 12 O.S.Supp.1995, § 1089(C)(2). As we said in Walker:

The amendments to the capital post-conviction review statute reflect the legislature's intent to honor and preserve the legal principle of finality of judgment, and we will narrowly construe these amendments to effectuate that intent. Given the newly refined and limited review afforded capital post-conviction applicants, we must also emphasize the importance of direct appeal a the mechanism for raising all potentially meritorious claims. Because the direct appeal provides appellants their only opportunity to have this Court fully review all claims of error which might arguably warrant relief, we urge them to raise all such claims at that juncture.

Walker, 933 P.2d at 331 (footnote omitted, emphasis in original). We now turn to Petitioner's claims.

¶ 5 In proposition one, Petitioner contends the "pervasive past practices of the prosecution in misleading juries as to the reliability of informants and willfully misleading juries in general, coupled with the actual unreliability of the informants used against Mr. McCarty, serve to make both the guilt and sentencing stage of Mr. McCarty's trials unreliable, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution." More specifically, he points to the criminal record of informant Theodore John Edgin, Jr.,¹ involving numerous crimes of dishonesty, and the trial practices of Oklahoma County District Attorney Robert H. Macy. Petitioner cites numerous opinions from this Court and federal courts wherein Mr. Macy's trial practices have been discussed, criticized, or condemned.² Petitioner claims Mr. Edgin's documented criminal history and Mr. Macy's criminal trial history, as chronicled in published appellate opinions, combined to make his trial and conviction constitutionally unreliable. He claims this argument is analogous to this Court's current jurisprudence regarding the "continuing threat" aggravator. He also claims his appellate counsel was ineffective for failing to raise this issue.

¶ 6 In Walker, this Court set forth a three-prong test to review claims of ineffective assistance of appellate counsel.³ Under this analysis, the threshold inquiry is whether appellate counsel actually committed the act which gave rise to the ineffective assistance allegation. If a petitioner establishes appellate counsel actually did the thing supporting the allegation of ineffectiveness, this Court then determines whether the performance was deficient under the first prong of the two-pronged test in Strickland v. Washington, 466 U.S. 668, 677-78, 104 S.Ct. 2052, 2059, 80 L.Ed.2d 674 (1984). If this burden is met, this Court then considers the mishandled substantive claim, asking whether the deficient performance supports a conclusion "either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." Walker, 933 P.2d at 333, n. 25, quoting 22 O.S.Supp. 1995, § 1089(C)(2).

¶ 7 Under this analysis, Petitioner's first proposition of error fails, as the record does not show appellate counsel actually committed the act which gave rise to the ineffective assistance allegation. Indeed, appellate counsel in both the direct appeal of Petitioner's trial and Petitioner's resentencing proceeding did in fact raise the same issue several times, albeit in slightly different contexts. In attacking the sufficiency of the evidence, Petitioner's appellate counsel, Jamie D. Pybas, argued:

The testimony of Theodore John Edgin, Jr. also did not rise to the level of credible evidence of Mr. McCarty's involvement in the crime. Edgin, a convicted felon, claimed he never made any agreement with the Oklahoma County District Attorney's Office and had merely volunteered to testify.... He did admit the pending felony charges against him in Oklahoma County were dismissed following the trial....

There is an obvious inherent unreliability in the testimony of witnesses like Edgin. (appellate brief in F-89-1057, Appellant's second direct appeal, at page 33).

Moreover, Petitioner's entire third proposition in his second direct appeal dealt thoroughly with the issue of alleged prosecutorial misconduct by Mr. Macy and his co-counsel. In proposition III.A., Ms. Pybas discussed the prosecutors' "dogged defiance of the ruling of this court in McCarty v. State" and "deliberate tactics to confuse and mislead the jury." In proposition III.C., Ms. Pybas accused the prosecutor of making "an almost identical argument to one which was condemned by this Court in McCarty v. State, 765 P.2d at 1120." Similar arguments appear in proposition III.F. and III.H.

¶ 8 In the appeal from Petitioner's resentencing proceeding, appellate counsel Matthew D. Haire also attacked Mr. Edgin and Mr. Macy. In Proposition IV of his appellate brief, Mr. Haire claimed Petitioner's rights under the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution were violated with the use of inadmissible evidence. Part of that inadmissible evidence, he contended, was the State's use of Theodore Edgin's testimony. Mr. Haire referred to Edgin as a "convicted felon" and "jailhouse snitch," who had a "criminal history composed of crimes involving dishonesty and deceit." Mr. Haire also alleged Edgin had been rewarded for his testimony by the district attorney. Edgin was also discussed in other parts of the brief, including Proposition XV. Concerning Mr. Macy, Haire lodged an aggressive attack on the alleged "misconduct" of Mr. Macy throughout his appellate brief, but most pointedly in Propositions I.B., IV, and XIII.

¶ 9 We recognize there is a slight variance in the way this issue was raised in Petitioner's post-conviction application, i.e. by comparing the use of Edgin's testimony and Macy's trial practices to the way this Court...