Phillips v. State

• Decision Date: 30 August 1982
• Docket Number: No. F-81-193,F-81-193
• Citation: 650 P.2d 876
• Parties: John Wayne PHILLIPS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 876

650 P.2d 876

John Wayne PHILLIPS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-81-193.

Court of Criminal Appeals of Oklahoma.

Aug. 30, 1982.

An Appeal from the District Court of Oklahoma County; David M. Cook, District Judge.

The appellant, John Wayne Phillips, was convicted in the District Court of Oklahoma County of Assault and Battery with a Dangerous Weapon, After Former Conviction of a Felony, sentenced to ten (10) years' imprisonment, and appeals. AFFIRMED.

Thomas J. Ray, Jr., Asst. Public Defender, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

The appellant was convicted in the District Court of Oklahoma County for Assault and Battery with a Dangerous Weapon, After Former Conviction of a Felony, and sentenced to ten (10) years' imprisonment.

Evidence at trial showed that the appellant had been involved in an altercation with his neighbor and former prison inmate, Zak Armstrong, and as a result delivered gunshot wounds to both Armstrong and his ex-wife, Terri Armstrong. The affray occurred after Zak Armstrong and his roommate, Rodney Simmons, found that their apartment had been burglarized. Among items which were missing was Armstrong's stereo sound system. Armstrong contended that prior to the burglary, he had asked the appellant to keep an eye on his apartment while he went out to do his laundry.

After discovering the loss, Armstrong asked the appellant if he had had anything to do with the burglary. The appellant asked if he were being accused and in his anger threw a bottle at Armstrong. When Armstrong began to retaliate with a flashlight and baseball bat, the appellant produced a .357 magnum pistol and fired two or three shots, hitting Zak Armstrong and Terri Armstrong.

The appellant testified he fired the shots in self-defense, intending only to frighten Armstrong away, and not to actually shoot anyone. He denied having had anything to do with the burglary. On rebuttal, the State recalled Zak Armstrong who testified he saw his stereo equipment in the back seat of the car the appellant was driving at the time.

The sole assignment of error asserted on appeal is that the appellant was denied effective assistance of counsel, abridging his Sixth Amendment right to adequate counsel. In support appellate counsel asserts Phillips was severely prejudiced by his trial attorney's inadequate knowledge of the law and inadequacy in courtroom performance and preparation.

Prior to our decision in Johnson v. State, 620 P.2d 1311 (Okl. Cr. 1980), the rule in this jurisdiction was that effective assistance of counsel was to be measured by a determination of whether trial was a farce or mockery of justice:

[R]elief upon the ground of ineffective counsel will be granted only when the trial is a farce or mockery of justice, or is shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. Eide v. State, 551 P.2d 275 (Okl. Cr. 1976).

In Johnson, supra, we adopted the standard of reasonably competent assistance of counsel; this standard, however, was to be applied prospectively. Johnson was decided on October 22, 1980; the appellant's case was tried on September 10 and 11, 1980. Therefore, the former standard of review is applicable in this case. A heavy burden is on the appellant to establish inadequate representation; this burden is not sustained by simply pointing out possible errors in counsel's judgment or lack of success in defense. Neither hindsight nor success is the proper measure for determining the adequacy of legal representation. Walker v. State, 550 P.2d 1339 (Okl. Cr. 1976).

I.

First it is argued that during an in camera discussion regarding the instructions to be given, trial counsel demonstrated his unfamiliarity of the other crimes evidence guidelines established in Burks v. State, 594 P.2d 771 (Okl. Cr. 1979). It is asserted he would have waived the required cautionary instructions had the trial court not explained the instruction to him. After hearing the instruction, however, the trial attorney did request that it be given. Moreover, in Burks, supra, we held that cautionary instructions admonishing the jury as to the limited purposes for which it could consider other crimes evidence must be given by the trial court, whether requested or not.

Inadequate...