Roberts v. State

• Decision Date: 26 January 1996
• Docket Number: No. PC-95-509,PC-95-509
• Citation: 1996 OK CR 7,910 P.2d 1071
• Parties: Michael Donald ROBERTS, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1071

910 P.2d 1071

Michael Donald ROBERTS, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-95-509.

Court of Criminal Appeals of Oklahoma.

Jan. 26, 1996.

An Appeal from the District Court of Oklahoma County; the Honorable Virgil C. Black, District Judge.

Robert W. Jackson, Appellate Defense Counsel, Oklahoma Indigent Defense System, Norman, Appellate Counsel, for Petitioner.

W.A. Drew Edmondson, Attorney General, Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals, Oklahoma City, Appellate Counsel, for Respondent.

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

LUMPKIN, Judge:

Petitioner Michael Donald Roberts appeals to this Court from the denial of post-conviction relief by the District Court of Oklahoma County Case No. CRF-88-677. At the conclusion of a jury trial, Petitioner was convicted of Murder in the First Degree (21 O.S.Supp.1982, Sec. 701.7) and Burglary in the First Degree, After Former Conviction of Two or More Felonies (21 O.S.1981, Sec. 1431 and 21 O.S.Supp.1985, Sec. 51). After finding the presence of three aggravating circumstances--that Petitioner committed the murder to avoid arrest and prosecution; he was previously convicted of a felony involving the use or threat of violence to the person; and there was a probability Petitioner would commit criminal acts of violence that would constitute a continuing threat to society--the jury recommended punishment of death for murder and three hundred-fifty (350) years for the burglary after former convictions. This Court affirmed the convictions on direct appeal, and certiorari was denied by the Supreme Court of the United States. Roberts v. State, 868 P.2d 712 (Okl.Cr.), cert. denied, --- U.S. ----, 115 S.Ct. 158, 130 L.Ed.2d 96 (1994).

I.

Petitioner raised the following propositions of error in his application to the trial court: (1) Ineffective assistance of counsel at both trial and direct appeal stages; (2) Failure to disclose exculpatory evidence; (3) Failure to disclose evidence of circumstances surrounding his arrest, which precluded his being able to have an effective suppression hearing; (4) He was denied investigative assistance; (5) Prosecutorial misconduct; (6) ¹ His video confession contained irrelevant evidence and was highly inflammatory, resulting in an unreliable sentence in violation of the Eighth Amendment; (7) Other violations existed but were not raised because appellate counsel was ineffective (those consisted of (a) the continuing threat aggravating circumstance was unconstitutional; (b) the capital sentencing scheme was unconstitutional because it does not narrow the class of persons eligible for the death penalty; (c) developments in criminal jurisprudence shows the death penalty is cruel and unusual punishment; (d) admission of unadjudicated crimes in the second stage violated the Eighth Amendment; (e) incorrect jury instructions; (f) the prosecutor made improper comments on the role of the jury in assessing the death penalty; (g) the death penalty is unconstitutional because there are no standards limiting prosecutorial discretion in determining when the death penalty should be sought; (h) lethal injection is cruel and unusual punishment); (8) Cumulative effect of errors. In the application, he also requested an evidentiary hearing to prove the claims.

The trial court denied relief in an order dated May 11, 1995 and filed May 12, 1995. ² No evidentiary hearing was held. Petitioner appeals that denial to this Court, setting forth the following propositions: (1) Ineffective assistance of counsel at both trial and direct appeal stages; (2) Failure to disclose exculpatory evidence; (3) Failure to disclose evidence of circumstances surrounding his arrest, which precluded his being able to have an effective suppression hearing; (4) He was denied investigative assistance; (5) Prosecutorial misconduct; (7) ³ Other violations existed but were not raised because appellate counsel was ineffective (those consisted of (a) the continuing threat aggravating circumstance was unconstitutional; and (b) admission of unadjudicated crimes in the second stage violated the Eighth Amendment); (8) Errors in jury instructions (a part of the seventh proposition of error in his application to the trial court); and (9) Cumulative effect of errors.

In his brief to this Court, Petitioner also requested an evidentiary hearing be held. However, that request was not supported by affidavit, and nothing in the record reveals any basis which supports the need for an evidentiary hearing. See 22 O.S.SUPP.1994, CH. 18⁴, App. Rules of the Court of Criminal Appeals, Rule 3.11; see also Wilhoit v. State, 816 P.2d 545, 546 (Okl.Cr.1991). In his reply brief, he expanded that to an additional proposition of error, claiming error on the part of the trial court in not holding a hearing. As a new proposition, that is waived, as it was not timely filed. See 22 O.S.Supp.1994, Ch. 18, App. Rules of the Court of Criminal Appeals, Rules 9.3(E) & 3.4(F).

II.

The post-conviction procedure is not intended to be a second direct appeal. Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995), this Court does not consider an issue which was raised on direct appeal (and is therefore res judicata ), or an issue which could have been raised on direct appeal but which was not (and is therefore waived). Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994), cert. denied, --- U.S. ----, 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).

III.

In his first proposition of error, Petitioner claims he received ineffective assistance of counsel at both the trial and direct appeal level. Petitioner was represented at both levels by Irven Box and Diane Clowdus.

Before addressing Petitioner's claims, one matter deserves special attention. Petitioner has included in his post-conviction record a transcription of oral argument conducted on his direct appeal before this Court. The transcription was made by Oklahoma Indigent Defense System personnel after listening to tapes of the oral argument. Petitioner included this transcription as Exhibit 1 in his appendix to his application for post-conviction relief (O.R.109f ). He made reference to this transcription both in his brief to the trial court and in his brief to this Court. We do not consider this exhibit in reaching our decision. The purpose of the tape recording made of an oral argument is to allow judges to review and, if not present, otherwise participate in the decision of the case. 22 O.S.Supp.1995, Ch. 18, App. Rules of the Court of Criminal Appeals, Rule 9.3(F). ⁵ While there are provisions for examining electronically produced media in preparation for an appeal, the appellate review is limited to evidence adduced at trial. See 22 O.S.Supp.1995, Ch. 18, App. Rules of the Court of Criminal Appeals, Rule 1.3(B)(1). As if this were not clear enough, this Court in its January 15, 1995, Order denying Petitioner's motion for a transcript of oral argument observed "[t]he tape recordings of oral argument are the internal work product of the Judges of this Court and are maintained for internal use only. Further, the tape recordings are not part of the record on appeal." Accordingly, the transcription was not properly before the district court, and we shall not consider it here.

Our analysis of a claim of ineffective counsel both at trial and on direct appeal begins with the presumption trial counsel was competent to provide the representation Petitioner needed; therefore, the burden is on Petitioner to demonstrate both a deficient performance and resulting prejudice. Fisher v. State, 736 P.2d 1003, 1011-12 (Okl.Cr.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984)). Petitioner must demonstrate counsel's representation was unreasonable under prevailing professional norms, and the challenged action could not be considered sound trial strategy. Id. (citing Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2064-65; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). To establish prejudice, Petitioner must show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is one that undermines confidence in the outcome. Id. Although we consider the totality of the evidence which was before the fact-finder, the "ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. (quoting Strickland, 466 U.S. at 695, 104 S.Ct. at 2069). We now turn to Petitioner's specific allegations, beginning with the allegation counsel was ineffective at the appellate level.

A.

Petitioner claims counsel was ineffective on appeal because he failed to adequately preserve his claim the prosecution improperly withheld exculpatory material at trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As a part of the evidence used in support of the allegation Petitioner was a continuing threat to society, the prosecution listed twenty (20) specific acts involving rape and burglary, based on a videotaped confession Petitioner gave police. At trial, the State called eleven (11) of those victims to testify to corroborate the taped confession. Petitioner's attorney learned after trial the prosecutors knew before trial some of the remaining victims would not testify. His attorney claimed on direct appeal he was unaware of that fact during the trial. The attorney also claimed on direct appeal some of the victims, including some who testified, had given information to authorities indicating their attacker was white. Appellant is an African-American. On direct...