Murphy v. State

• Citation: 54 P.3d 556,2002 OK CR 32
• Decision Date: 04 September 2002
• Docket Number: No. PCD-2001-1197.,PCD-2001-1197.
• Parties: Patrick Dwayne MURPHY, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

54 P.3d 556

2002 OK CR 32

Patrick Dwayne MURPHY, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PCD-2001-1197.

Court of Criminal Appeals of Oklahoma.

September 4, 2002.

Bryan Lester Dupler, Oklahoma Indigent Defense System, Norman, Oklahoma, for Petitioner.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF AND GRANTING EVIDENTIARY HEARING

LUMPKIN, Presiding Judge.

¶ 1 Petitioner Patrick Dwayne Murphy was convicted of First Degree Murder in the District Court of McIntosh County, Case Number CF-1999-164A, and sentenced to death. He appealed his conviction to this Court in Case No. D-2000-705. We affirmed Petitioner's conviction and sentence. Murphy v. State, 2002 OK CR 24, 47 P.3d 876. Petitioner filed his Application for Post-Conviction Relief on February 7, 2002, pursuant to 22 O.S.2001, § 1089. Accompanying that application is Petitioner's motion for evidentiary hearing, filed pursuant to Rule 9.7(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002).

¶ 2 On numerous occasions, this Court has set forth the narrow scope of review available under the amended Post-Conviction Procedure Act. See e.g., McCarty v. State, 1999 OK CR 24, ¶ 4, 989 P.2d 990, 993,

cert. denied, 528 U.S. 1009, 120 S.Ct. 509, 145 L.Ed.2d 394 (1999). The Post-Conviction Procedure 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 (interpreting Act as amended). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims that could have been raised in previous appeals but were not are generally waived; claims raised and addressed on direct appeal are barred by the doctrine of res judicata. Thomas v. State, 1994 OK CR 85, ¶ 3, 888 P.2d 522, 525 (Okl.Cr.1994),

cert. denied, 516 U.S. 840, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995).

¶ 3 The new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker, 1997 OK CR 3, ¶ 4,933 P.2d at 331. Under 22 O.S.2001, § 1089(C)(1), only claims that "[w]ere not and could not have been raised" on direct appeal will be considered. Id. 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.2001, §§ 1089(D)(4)(b), 1089(D)(9).

¶ 4 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). 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 as 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, 1997 OK CR 3, ¶ 5, 933 P.2d at 331 (footnote omitted, emphasis in original). We now turn to Petitioner's claims.

¶ 5 In propositions one and four, Petitioner claims his trial and appellate counsel failed to adequately investigate, develop, and present available mitigating evidence of Petitioner's deprived background, mental retardation, exposure to alcohol and violence at a young age, neuropsychological impairments, and other mitigating evidence through available witnesses, thus denying him effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 2, Sections 7 and 20 of Oklahoma's Constitution. He requests an evidentiary hearing to fully develop the mitigating evidence and to demonstrate prejudice arising from his prior counsels' deficient performances, which allegedly denied him a fair sentencing proceeding under the Eighth Amendment to the United States Constitution and Article 2, Section 9 of Oklahoma's Constitution. He also alleges violations of the Fifth Amendment to the United States Constitution and to Article II, Section 6 of Oklahoma's Constitution.

¶ 6 Petitioner claims his trial counsel should have known a murder conviction was likely, given the fact that three witnesses were scheduled to testify regarding his involvement. Thus, he claims his trial counsel "should have known that a compelling mitigation case in the sentencing phase would be the only reasonable strategy for avoiding the ultimate penalty."

¶ 7 While conceding his counsel presented mitigating evidence through various trial witnesses, Petitioner claims the evidence was "incomplete, disjointed, and failed to emphasize several substantive factors that weighed against the imposition of death." He claims his attorneys reduced him "almost to a clinical instrumentality instead of revealing the wealth of mitigating circumstances that were readily available for the jury's consideration."¹

¶ 8 Furthermore, based upon Dr. John R. Smith's affidavit, Petitioner claims his trial and appellate lawyers were ineffective for failing to discover and present evidence of a "significant neurological dysfunction ... caused by his mother's ingestion of copious amounts of alcohol during pregnancy."

¶ 9 Petitioner claims his case is similar to Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). There, the United States Supreme Court found defendant Williams's trial lawyers failed to investigate and present substantial mitigating evidence to his sentencing jury, thus violating the defendant's right to effective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 10 In so finding, the Supreme Court noted several pertinent matters relating to the assistance provided by the defendant's trial attorneys. They did not begin preparing for the sentencing stage of the defendant's capital trial until a week before trial. They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams's "nightmarish childhood," which included evidence of repeated beatings and criminal neglect the defendant suffered at the hands of his parents. These records were apparently social service documents to which the attorneys wrongly believed they did not have access.² Furthermore, counsel failed to introduce the following available evidence: Williams was borderline mentally retarded and did not get past sixth grade; he had been a good, peaceful prisoner who had been helpful in cracking a prison drug ring; he had earned a carpentry degree while in prison; and he seemed to thrive in the structured prison environment. In granting the defendant a new sentencing proceeding, the Supreme Court placed importance on the fact that the defendant had turned himself in on the crime, expressed remorse for his actions, and cooperated with the police investigations.

¶ 11 The question presented, therefore, is whether the holding in Williams applies equally to this case, i.e., whether Petitioner's trial and appellate counsel rendered effective assistance under Strickland and Williams with respect to the second stage proceedings. To answer this question, we must review the mitigating evidence presented in Petitioner's trial, compare it to the mitigation evidence presented in the post-conviction record, and decide if the post-conviction evidence raises "a reasonable probability that the result of the sentencing proceeding would have been different" if competent counsel had presented and explained the significance of all the available evidence. Williams, 529 U.S. at 399, 120 S.Ct. at 1516.

¶ 12 A thorough review of the trial record reveals the following mitigating, or at least arguably mitigating, evidence was admitted during the first stage of Petitioner's trial: Petitioner claimed he participated in the beating but did not actually kill the victim or amputate the victim's genitalia; Petitioner was extremely drunk³ when the murder was committed; Petitioner testified he drank at least thirty-two beers and told police he was "three sheets to the wind"; the incident arose out of a long-standing domestic situation, i.e., Petitioner's hatred for the victim due in some part to the victim's relationship with Petitioner's so-called "common-law" wife;⁴ during the incident, Petitioner prevented his accomplices from beating Mark Sumka further; Mark Taylor testified Petitioner is not a violent person, does not go looking for fights, and had once blacked out from drinking; Petitioner has a history of alcoholism in his family; he first tasted alcohol at the age of eleven or twelve and drank regularly through his teen years; he became a daily drinker at the age of eighteen or so; he had as many as five arrests relating to public intoxication in his past; he has a good work record; he drank heavily-by his own account he drank in excess of thirty beers a day on weekends and twelve to thirty beers on a normal weekday;⁵ as a result of his drinking, he frequently experienced temporary loss of memory; he is alcohol-dependent, an alcoholic; he...