McCarty v. State

• Decision Date: 14 June 2005
• Docket Number: No. PCD-2002-1493.,PCD-2002-1493.
• Citation: 114 P.3d 1089,2005 OK CR 10
• Parties: Curtis Edward McCARTY, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

114 P.3d 1089

2005 OK CR 10

Curtis Edward McCARTY, Appellant v. STATE of Oklahoma, Appellee.

No. PCD-2002-1493.

Court of Criminal Appeals of Oklahoma.

June 14, 2005.

John David Echols, Tulsa, OK, Vicki Ruth Adams Werneke, Oklahoma Indigent Defense System, Norman, OK, attorneys for Petitioner on appeal.

W.A. Drew Edmondson, Attorney General, Seth S. Branham, Asst. Attorney General, Oklahoma City, OK, attorney for the State.

OPINION GRANTING APPLICATION FOR POST-CONVICTION RELIEF

LUMPKIN, V.P.J.

¶ 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. However, on appeal this Court 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 1989. For a second time, he was convicted of First Degree Murder and sentenced to death. On appeal we affirmed Petitioner's murder conviction, but reversed his death sentence and remanded for resentencing because the trial court had refused to instruct the jury on the requested alternative sentencing option of life imprisonment without parole. McCarty v. State, 1995 OK CR 48, 904 P.2d 110.

¶ 3 Petitioner's resentencing proceeding was held in 1996, and Petitioner was sentenced to death for a third time. This Court affirmed his sentence in McCarty v. State, 1998 OK CR 61, 977 P.2d 1116 and denied rehearing in McCarty v. State, 1998 OK CR 18, 977 P.2d 1116. Petitioner filed for postconviction relief, but we denied relief. McCarty v. State, 1999 OK CR 24, 989 P.2d 990.

¶ 4 In September of 2003, Petitioner, through counsel, filed his second application for post-conviction relief and request for evidentiary hearing, seeking reversal of his murder conviction and death sentence on the basis of suppression of exculpatory evidence and bad faith by the State of Oklahoma,¹ due process denial, and factual innocence.² Later, the State filed responses in which it waived procedural bars and consented to an evidentiary hearing on several of Petitioner's claims "due to the serious allegations raised."

¶ 5 In April of 2004, this Court remanded the case for an evidentiary hearing on the post-conviction issues raised. We listed sixteen specific questions to be resolved at the evidentiary hearing,³ in addition to certain pro se questions raised concerning the matter of Petitioner's legal representation.⁴ All of these matters were capably adjudicated in hearings before the Honorable Twyla Mason Gray, Oklahoma County District Court Judge, in early October of 2004.⁵ ¶ 6 Judge Gray filed her very thorough findings of fact and conclusions of law with this Court on November 16, 2004. Thereafter, following completion of the district court's record of these proceedings, we received supplemental briefs by both parties in the last week of January 2005.

¶ 7 Before considering Petitioner's claims, we reiterate the narrow scope of review available under the amended Post-Conviction Procedure Act. The Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 1997 OK CR 3, ¶ 3, 933 P.2d 327, 330, cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024. The Act provides petitioners with very limited grounds upon which to base a collateral attack on their judgments. Under 22 O.S.2001, § 1089(C)(1), only claims that "[w]ere not and could not have been raised in a direct appeal" will be considered.⁶ 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." 22 O.S.2001, § 1089(C)(2).

¶ 8 In proposition one, Petitioner contends the suppression of exculpatory evidence and introduction of false testimony by the prosecution rendered his conviction unconstitutional and denied him due process of law and a fair trial as guaranteed by the Fifth and Fourteenth Amendments.⁷ Petitioner claims the State and its agents suppressed lab documents and altered lab notes proving Oklahoma City Police Chemist Joyce Gilchrist had excluded Petitioner as a donor of all crime scene hairs in 1983.⁸ He claims Ms. Gilchrist's written report and trial testimony were false and materially misleading.⁹ He also claims the prosecution and its agents suppressed exculpatory evidence that proved none of Ms. Gilchrist's forensic testing in Petitioner's case was peer reviewed, contrary to the testimony at trial. He also claims the prosecution and its agents failed to disclose that Ms. Gilchrist's serology analysis in Petitioner's case was flawed and her testimony was false.¹⁰ And finally, he claims the prosecution and its agents failed to disclose that Ms. Gilchrist had not completed yearly proficiency tests, contrary to her testimony at trial. ¶ 9 Petitioner claims Ms. Gilchrist's actions and the prosecution's actions violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). He supports his claims with various documents, including copies of Ms. Gilchrist's lab reports and handwritten notes and findings made by the Oklahoma City Police Departmental Review Board (the "Review Board").¹¹

¶ 10 Closely related to the issues raised in proposition one, Petitioner's second proposition claims he has been denied due process because the State of Oklahoma demonstrated bad faith in the "apparent destruction of evidence."¹² He claims this destruction of evidence precluding mtDNA testing, which would have proven his actual innocence.¹³

¶ 11 The remanded evidentiary hearing squarely addressed the issues Petitioner raises in propositions one and two, and the District Court made detailed findings and conclusions with respect to each.¹⁴ While we will not set forth all of those findings and conclusions here, they can be generally summarized and grouped into three categories: (1) there was no competent evidence admitted at the evidentiary hearing that the State or any of its agents (excluding Ms. Gilchrist) intentionally suppressed, neglectfully failed to share, or intentionally destroyed exculpatory evidence or knowingly sponsored false testimony regarding Ms. Gilchrist's findings, opinions, and qualifications;¹⁵ (2) Ms. Gilchrist, while acting as an agent of the State and in relation to her role as an expert in Petitioner's case, withheld evidence, most likely lost or intentionally destroyed important and potentially exculpable (or incriminating) evidence,¹⁶ provided flawed laboratory analysis and documentation of her work, testified in a manner that exceeded acceptable limits of forensic science, and altered lab reports and handwritten notes in an effort to prevent detection of misconduct; and (3) as a result of Ms. Gilchrist's actions, Petitioner did not receive a fair trial and resentencing proceeding.

¶ 12 The record adequately supports these findings and conclusions.¹⁷ This Court affords great deference to a District Court's findings and conclusions on such remanded evidentiary hearings, and here we find no abuse of discretion in relation thereto. Patterson v. State, 2002 OK CR 18, ¶ 19, 45 P.3d 925, 930; Young v. State, 2000 OK CR 17, ¶ 109, 12 P.3d 20, 48; DeLozier v. State, 1998 OK CR 76, ¶ 57, 991 P.2d 22, 33.

¶ 13 We recognize the parties sharply disagree about the State's complicity in (or conscious disregard of) Ms. Gilchrist's actions. Petitioner's attorneys are adamant that the State should have known or were on notice regarding deficiencies in Ms. Gilchrist's opinions and scientific techniques. For example, this Court was extremely critical of Ms. Gilchrist's efforts in Petitioner's first murder trial, and reversed the conviction based almost entirely on her delay and neglect, intentional or neglectful omissions, and improper expert opinions. McCarty v. State, 1988 OK CR 271, ¶ 4-10, 765 P.2d 1215, 1217-20.¹⁸ We noted similar problems in other cases. See e.g., McCarty v. State, 1995 OK CR 48, 904 P.2d 110, 116, 126 (finding one instance of opinion bordering on impropriety and other instances that the defense attacked as to credibility on cross-examination and were thus within the jury's province); Mitchell v. State of Oklahoma, 1994 OK CR 70, ¶ 29, 884 P.2d 1186, 1198 (noting Gilchrist's censure by a professional organization was "highly relevant and exactly the sort of evidence which would be of interest to a jury in determining her credibility."); Miller v. State, 1991 OK CR 6, ¶ 9, 809 P.2d 1317, 1320 (significant omissions in Gilchrist's forensic reporting resulted in a trial by ambush and required reversal); Pierce v. State, 1990 OK CR 7, 786 P.2d 1255, 1259-60 (Gilchrist's credibility attacked by defense witness thereby making the allegation of improper expert testimony a question for the jury to resolve); Fox v. State, 1989 OK CR 51, ¶ 39, 779 P.2d 562, 571 (improper expert opinion found harmless because it was exposed on cross-examination).

¶ 14 Of course, to the extent that the prosecution was "on notice" of these matters, so was the defense.¹⁹ Indeed, following our decision in Petitioner's first trial, it can be safely said that the entire legal community was on notice that this Court was not particularly impressed with Ms. Gilchrist's hair comparison techniques and unscientific opinions in relation to Petitioner.²⁰

¶ 15 While the issue of who knew or should have known what in relation to Ms. Gilchrist's opinions and credentials is fascinating and probably forever debatable (and the subject of pending litigation against Ms. Gilchrist and former Oklahoma County District Attorney Bob Macy), it is not necessary to resolve that issue here.²¹ We are concerned here with...