Rojem v. State

• Citation: 130 P.3d 287,2006 OK CR 7
• Decision Date: 24 February 2006
• Docket Number: No. D-2003-860.,D-2003-860.
• Parties: Richard Norman ROJEM, Jr., Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

130 P.3d 287

2006 OK CR 7

Richard Norman ROJEM, Jr., Appellant v. STATE of Oklahoma, Appellee.

No. D-2003-860.

Court of Criminal Appeals of Oklahoma.

February 24, 2006.

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An Appeal from the District Court of Washita County; the Honorable Charles L. Goodwin, District Judge.

Craig D. Corgan, James Bowen, Oklahoma Indigent Defense System, Norman, OK, counsels for appellant at trial.

Janet Chesley, Traci Quick, Capital Trial Division, Oklahoma Indigent Defense System, Norman, OK, counsels for appellant at trial and appeal.

Dennis Smith, District Attorney, Christopher Kelly, Assistant District Attorney, Stephanie Jones, Assistant District Attorney, Cordell, OK, counsels for the State at trial.

W.A. Drew Edmondson, Attorney General of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, counsels for the State on appeal.

OPINION

LUMPKIN, Vice-Presiding Judge.

¶ 1 Appellant Richard Norman Rojem, Jr. was tried by jury in the District Court of Washita County, Case No. CRF-84-35, and convicted of Kidnapping, First-Degree Rape, and First-Degree Murder. He was sentenced to one thousand (1,000) years for the kidnapping and rape convictions and to death for his murder conviction. On appeal, this Court affirmed, and the U.S. Supreme Court denied certiorari. Rojem v. State, 1988 OK CR 57, 753 P.2d 359; Rojem v. Oklahoma, 488 U.S. 900, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988).

¶ 2 Appellant then filed for post-conviction relief with the trial court, but his application was denied. We affirmed that decision in Rojem v. State, 1992 OK CR 20, 829 P.2d 683. The Supreme Court denied certiorari once again. Rojem v. Oklahoma, 506 U.S. 958, 113 S.Ct. 420, 121 L.Ed.2d 343 (1992).

¶ 3 Appellant filed a second post-conviction application with the trial court, which denied relief. On appeal, this Court affirmed. Rojem v. State, 1996 OK CR 47, 925 P.2d 70. Appellant then filed a petition for writ of habeas corpus with the U.S. District Court for the Western District of Oklahoma, which denied relief with respect to his convictions but found the trial court had committed instructional error by failing to tell the jury to weigh aggravating and mitigating evidence when deciding whether or not to impose the death penalty. The Court granted conditional relief from the death sentence, and the Tenth Circuit later affirmed that decision. Rojem v. Gibson, 245 F.3d 1130 (10th Cir. 2001).

¶ 4 Accordingly, Appellant was granted a resentencing proceeding, which took place in July of 2003. The jury again sentenced Appellant to death, finding the existence of four aggravating circumstances: (1) Appellant was previously convicted of a felony involving the use or threat of violence to the person; (2) the murder was especially heinous, atrocious or cruel; (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) the existence of a probability that Appellant will commit criminal acts of violence that would constitute a continuing threat to society. Appellant now appeals from that decision.¹

FACTS

¶ 5 The facts in this case have been thoroughly set forth in Rojem v. State, 1988 OK CR 57, 753 P.2d 359. We won't restate those facts here. Suffice it to say that the case involves the brutal kidnapping, rape, and stabbing death of seven-year old Layla Dawn Cummings, Appellant's former stepdaughter. Appellant was connected to the crimes through a "significant amount of circumstantial evidence." Id., 1988 OK CR 57, ¶ 4, 753 P.2d at 362.

PRETRIAL AND JURY SELECTION ISSUES

¶ 6 In proposition four, Appellant claims reversible error occurred when the trial court proceeded to trial without first resolving all discovery and evidentiary hearing issues. As a resentencing proceeding, Appellant admits matters of guilt or innocence "were not, in and of themselves, at issue." Nevertheless, he claims that, because Oklahoma's jury instructions define mitigating circumstances as factors that may lessen "moral culpability or blame" and because both sides were pursuing DNA testing of evidence in the case, the trial court should have required the State to turn that evidence over for testing.

¶ 7 The evidence in question consists of a group of hairs collected from the victim's nightgown and undergarments — hairs that were, supposedly, never before known or tested. Appellant claims an OSBI report concerning these hairs was issued on December 23, 2002, but was not turned over to the defense until April 7, 2003, three months before the resentencing proceeding. The report, we're told, indicated that seven hairs among this group of untested hairs had cellular material present on the root end that was suitable for nuclear DNA testing. Appellant thus claims the trial court violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by holding the resentencing proceeding without first requiring those hairs to be tested.

¶ 8 In bringing this claim, Appellants alleges these seven hairs were previously "unknown." However, it is difficult from this record to ascertain exactly when those hairs were first discovered. The crime occurred more than twenty (20) years ago, in July of 1984. Obviously, the victim's clothing has been part of the evidence in this case since that time and was presumably made available for inspection by both the State and the defense long ago.² Additionally, an April 25, 1985 OSBI report (superceding an October 19, 1984 version) was attached to Appellant's amended application for post-conviction relief, filed February 10, 1989, and it appears the report was originally turned over to defense counsel at Appellant's November 7, 1984 preliminary hearing.

¶ 9 The April 25, 1985 OSBI report listed the victim's nightgown and panties as items 35 and 36. Those items were listed separately from items 33 and 34, which were individual hairs taken from anal, thigh, and perineal areas.³ Later, in the analysis of the nightgown and panties, the report listed four individual scalp hairs taken from those clothes that were "consistent with" hair samples taken from the victim.⁴ No other hairs are mentioned in the report in connection with the nightgown and panties. Thus, we do not know whether the hairs were taken from the nightgown or panties or both. Moreover, while seven hairs were supposedly found to be suitable for nuclear DNA testing, we do not know how many total hairs were discovered.

¶ 10 Thus, Appellant's Brady claim rests upon two pieces of evidence that have been part of this case for more than twenty years and which his own attorneys have had access to and in fact previously inspected. Therefore, his claim that these hairs were "unknown" is somewhat tenuous.

¶ 11 Be that as it may, it appears someone took the initiative to look at these two items of evidence once again, probably in mid 2002,⁵ thereby resulting in the sudden discovery of these not-so-new hairs. But the parties were unable to work together during the next year in order to ensure Appellant had those hairs tested prior to resentencing. Each side blames the other for this failure.

¶ 12 Assuming, arguendo, that the seven hairs were first discovered in late July of 2002, the record indicates the State is primarily to blame for the non-testing from that time forward. On July 26, 2002, Washita County District Judge Richard Darby granted Appellant leave to conduct DNA testing on the evidence in question, thereby confirming an earlier ruling made on November 27, 2001. Thereafter, on August 8, 2002, Judge Darby granted Appellant's oral motion for a continuance in regard to the approaching trial (over the State's objection) so the hairs from the victim's nightgown and undergarments could be tested. The hairs were to be sent from the Washita County Sheriff's Office to the OSBI so an expert could ascertain if DNA testing could be performed.

¶ 13 The OSBI reportedly received the hairs on September 16, 2002 and began its attempts to determine if the hairs were amenable to DNA testing. A scheduled October 3, 2002 status conference on this issue apparently never occurred, but the State informed the defense in December of 2002 that the OSBI report was forthcoming. The OSBI issued its report on December 23, 2002, but did not forward the same to defense counsel. Five months had now passed, and the hair evidence remained fully in the State's control.

¶ 14 A hearing was set for February 20, 2003, but was passed because Appellant had major surgery on February 17. The parties then met on March 27, 2003, but there is no indication the matter of testing was ever addressed. Thus, a total of eight months had passed, and testing still had not occurred.

¶ 15 The parties then met for a hearing on April 3, 2003 before Washita County District Judge Charles Goodwin, who eventually presided over the resentencing proceeding. Defense counsel indicated he had been waiting for "months and months to look at some of the evidence in this case" and that "there was an agreement and an order in this case that there were to be some hairs mounted and looked at by the OSBI to determine whether we could do further testing on those items." But counsel indicated the defense had never been provided with the OSBI report. The District Judge indicated this was to be a very narrow trial and the "issue of guilt or innocence isn't on the table." Defense counsel agreed, but argued that if the subject hairs did not match Appellant, but did match another male, "we think it goes directly to the issue of sentencing and punishment." The State agreed defense counsel had pursued the DNA testing "from the beginning" and that the OSBI had not always followed through with what had been requested. Nevertheless, the State argued that the parties should not even be talking about guilt innocence. The judge eventually ordered the OSBI report delivered to defense counsel by April 10, 2003 and delayed ruling on defense counsel...