Perry v. State, F-87-312

• Citation: 1988 OK CR 252,764 P.2d 892
• Decision Date: 02 November 1988
• Docket Number: No. F-87-312,F-87-312
• Parties: Melvin Tyrone PERRY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 892

764 P.2d 892

Melvin Tyrone PERRY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-87-312.

Court of Criminal Appeals of Oklahoma.

Nov. 2, 1988.

An appeal from the District Court of Oklahoma County; Leamon Freeman, District Judge.

Melvin Tyrone Perry, appellant, was convicted of First Degree Murder, Robbery with a Dangerous Weapon, Kidnapping, Second Degree Burglary, and Unauthorized Use of a Motor Vehicle, all After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CRF-86-2036, was sentenced to life imprisonment, ninety-nine (99) years, nine hundred ninety-nine (999) years, ninety-nine (99) years, ninety-nine (99) years imprisonment, respectively, and appeals. Robbery with a Dangerous Weapon is REVERSED with instructions to DISMISS; the remaining convictions are AFFIRMED.

Redmond P. Kemether, Robert E. Walker, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, JUDGE:

The appellant, Melvin Tyrone Perry, was tried by jury and convicted of First Degree Murder (21 O.S.1981, § 701.7(B)), Robbery with a Dangerous Weapon (21 O.S.Supp.1982, § 801), Kidnapping (21 O.S.1981, § 741), Second Degree Burglary (21 O.S.1981, § 1435), and Unauthorized Use of a Motor Vehicle (47 O.S.1981, § 4-102), all After Former Conviction of Two or More Felonies (21 O.S.1981, § 51) in the District Court of Oklahoma County, Case No. CRF-86-2036, before the Honorable Leamon Freeman, District Judge. The jury set punishment at life imprisonment, ninety-nine (99) years, nine hundred ninety-nine (999) years, ninety-nine (99) years and ninety-nine (99) years imprisonment, respectively. Judgment and sentence was imposed accordingly, the sentences to run consecutively. We affirm in part and reverse in part.

The victim, Robert McClish, was to meet Charlotte Brown on the evening of February 16, 1986, at appellant's house in Oklahoma City. Appellant had arranged the meeting so that McClish could be drugged and robbed. McClish arrived and entered appellant's house with Brown, whereupon appellant and his brother, Marvin Perry, came in with guns and told McClish that they were going to kill him. Brown left the room and when she returned, McClish was face down on the floor, with his hands handcuffed behind him. Appellant grabbed McClish by the hair and shot him in the back of the head. Appellant then ordered Brown to clean up the blood. As she wiped up the blood, appellant removed over one hundred dollars ($100.00) from McClish's wallet. Appellant undressed McClish, leaving him dressed in only his underwear and socks, placed his body in a plastic bag and a sleeping bag and then he and his brother loaded the body into appellant's truck. Brown and appellant drove to the bridge over the Cimarron River and dumped his body into the river. They dumped his clothes about one mile from the bridge.

Brown and appellant then went to McClish's house, where they searched his house and car, taking several items including marijuana, cash, guns, ammunition, cameras and a stereo. They took McClish's car and a few days later, stripped it and left it near McLoud, Oklahoma. On February 21, a wrecker was called to tow the car, and appellant's driver's license was found at the site.

McClish's body was found on March 30, 1986, clad only in underwear and socks. The body was identified through dental records. A plastic bag, a sleeping bag, clothes and towels were recovered about a mile from the bridge. After obtaining a search warrant, police recovered from appellant's house cameras later identified as similar to those taken from McClish's house, a set of handcuffs and some ammunition.

At trial, appellant's case consisted of testimony by Alfred Golden and his brother, who was a co-defendant. Golden testified that Brown was lying, and Marvin Perry testified that he shot McClish in self-defense.

As his first assignment of error, appellant claims the trial court erred in overruling his motion for discovery insofar as the requested information was potentially exculpatory. Although appellant indicates the trial court overruled his discovery motion in part, the record does not support this allegation. Before trial, the parties discussed the discovery motion in the presence of the judge. Both parties agreed that the prosecutor had released to appellant all evidence in his file. Defense counsel agreed that the prosecutor had complied with the discovery request. Based on the record before this Court, appellant's assignment is without merit.

As his second assignment of error, appellant claims that he was denied a fair trial because the "prosecution failed to reveal the true nature of an agreement regarding lenient treatment" of a witness. At trial, witness Charlotte Brown testified that in exchange for her testimony, she and the district attorney had agreed that she would plead guilty to a robbery charge and be sentenced to a ten (10) year sentence, with five (5) years suspended. The plea proceedings occurred after appellant's trial, and instead of receiving five (5) years suspended, she received eight (8) years suspended. Appellant argues this discrepancy was a denial of due process as it was no different from the situation when the plea bargain is not revealed to the jury. See Hurt v. State, 312 P.2d 169 (Okla.Crim.App.1957).

We find no such violation of due process as it is clear that the "true nature of the plea bargain was in fact revealed to the jury." Diaz v. State, 728 P.2d 503, 511 (Okla.Crim.App.1986). In Binsz v. State, 675 P.2d 448, 450 (Okla.Crim.App.1984), this Court discussed the three-part test for determining whether there has been a denial of due process:

First, whether a key portion of the State's case was presented with information affecting its credibility intentionally concealed; second, whether the prosecution knew or had reason to know of the concealment and failed to bring it to the attention of the trial court; and, third, whether the trier of fact was prevented from properly trying the case against the defendant as a result of the concealment.

As to the first requisite, the supplemental record confirms that the terms of the plea agreement were not "intentionally concealed." Both the prosecutor and Brown's defense counsel signed affidavits which state that the terms of the agreement were correctly stated at trial, but subsequent to trial, Brown's defense counsel negotiated with the district attorney for a larger suspended sentence. Secondly, because there was no intentional "concealment" of any term of the agreement, appellant has failed to show that the prosecutor knew or had reason to know of any changes that would occur in the agreement subsequent to trial. Lastly, the trier of fact was able to weigh the credibility of Brown's testimony. We addressed a similar situation in Roberts v. State, 571 P.2d 129, 137 (Okla.Crim.App.1977) , cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316 (1977). In Roberts, a witness, who was serving two twenty (20) year sentences, testified that the district attorney promised that he would be placed on an honor farm in exchange for his testimony. However, after trial, the witness was resentenced to ten (10) years on both prior convictions. This Court held that sufficient evidence was placed before the jury for them to determine the credibility of the witness. Defense counsel was given the opportunity to argue this point of credibility insofar as the jury knew the witness was to receive some sort of lenient treatment. Similarly, in the present case, the jury was told of the plea agreement of witness Brown, and was able to assess her credibility. Defense counsel had opportunity to argue to the jury regarding Brown's credibility. Accordingly, appellant was not denied due process of law. His assignment is without merit.

In his third proposition, appellant urges he was denied effective assistance of counsel at his preliminary hearing due to a conflict of interest. The record shows that an assistant public defender represented both appellant and his co-defendant at the preliminary hearing, but represented neither at trial. Appellant did not object to his attorney's representation at the preliminary hearing.

Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980), sets forth the criteria which must be met to establish a Sixth Amendment violation based on conflict of interest when the defendant does not object at trial:

We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.

Not until appellant shows that his counsel "actively represented conflicting interests" has he established the constitutional predicate for his ineffective assistance claim. Id. Furthermore, a trial court "may assume that multiple representation entails no conflict," and need not initiate an inquiry unless the "trial court knows or reasonably should know that a particular conflict exists." Cuyler, 446 U.S. at 347, 100 S.Ct. at 1717.

In support of his claim, appellant cites several alleged errors. However, after thorough review, it is evident that appellant has only speculated as to the possibility of conflict rather than demonstrating an actual conflict which caused counsel's performance to be deficient. Many of the alleged errors by counsel were not errors at all, but instead reflect counsel's knowledge and expertise in the area of criminal law. See Spees v. State, 735 P.2d 571, 572 (Okla.Crim.App.1987). The remaining instances involved trial strategy, which fell within the "wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Accordingly, this assignment is without merit.

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