Rojem v. State

• Decision Date: 17 September 1996
• Docket Number: No. PC-95-1127,PC-95-1127
• Citation: 925 P.2d 70,1996 OK CR 47
• Parties: Richard Norman ROJEM, Jr., Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 70

925 P.2d 70

Richard Norman ROJEM, Jr., Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-95-1127.

Court of Criminal Appeals of Oklahoma.

Sept. 17, 1996.

An appeal from the District Court of Washita County; the Honorable Richard Darby, District Judge.

Randy A. Bauman, Deputy Division Chief, Capital Post-Conviction, Oklahoma Indigent Defense System, Norman, for Petitioner on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma and Sandra D. Howard, Assistant Attorney General, Oklahoma City, for Respondent on appeal.

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

CHAPEL, Vice Presiding Judge:

Richard Norman Rojem, Jr. was tried by a jury in Washita County District Court, Case No. CRF-84-35, and convicted of Kidnapping, Rape in the First Degree and Murder in the First Degree of Layla Cummings. The jury recommended Rojem be sentenced to 1,000 years imprisonment for kidnapping, 1,000 years imprisonment for rape, and death for murder. The Honorable Paul C. Braun imposed sentence in accordance with the jury recommendation. Rojem appealed his judgment and sentence to this Court and we affirmed. ¹ This Court denied Rojem's petition for rehearing and the United States Supreme Court denied Rojem's petition for certiorari. ²

On December 12, 1988, Rojem filed an application for post-conviction relief with the district court. The district court denied Rojem's application and Rojem appealed. This Court affirmed the district court's order. ³ On November 2, 1992, the United States Supreme Court denied Rojem's petition for certiorari. ⁴

On January 6, 1994, Rojem filed a second application for post-conviction relief in the district court. The district court dismissed the second application on the grounds that it was not filed in a timely manner. Rojem appealed the order to this Court. This Court found that Rojem's application was filed timely and reversed and remanded the case to the district court for further proceedings. ⁵

On remand, Rojem filed an Amended Second Application for Post-Conviction Relief and for an Evidentiary Hearing. The State responded to the application. After hearing oral argument, the district court denied Rojem's application and request for an evidentiary hearing. The district court also denied Rojem's motion for discovery and motion to hold the case in abeyance. Rojem appeals the district court's orders.

Layla Cummings, a seven-year-old girl, was abducted from her home in Elk City, Oklahoma sometime during the late evening or early morning hours of July 6-7, 1984. Her body was discovered on the morning of July 7 in a field. Cummings was the daughter of Rojem's ex-wife. Circumstantial evidence connected Rojem to Cummings' murder and abduction. ⁶

On appeal of the district court's denial of his second application for post-conviction relief, Rojem raises five propositions of error. We have repeatedly stated that Oklahoma's Post-Conviction Procedure Act ⁷ is not an opportunity to raise new issues, resubmit claims already adjudicated, or assert claims that could have been raised on direct appeal. ⁸ Moreover, when a defendant files a second or subsequent application for post-conviction relief, as Rojem has in this case, 22 O.S.1991, § 1086, provides that:

All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application.

It is against this statutory backdrop that we begin our review of the claims that Rojem raises in his second application for post-conviction relief.

In his first proposition, Rojem makes two arguments. First, he contends that the district court erred in refusing to grant him compulsory discovery. This argument hinges, in part, on Rojem's claim that he recently discovered exculpatory evidence that the State wrongfully withheld from him. Second, and as a corollary to his first argument, Rojem contends this recently discovered evidence was exculpatory and material to his case and the suppression of such evidence violated due process.

The first issue we must address is whether Rojem's discovery request is barred by the doctrine of res judicata. In his first application for post-conviction relief, Rojem argued that "the trial court erroneously denied his Motion to discover the State's entire case file which 'would provide information necessary to prove Mr. Rojem did not commit this crime.' " ⁹ This Court disagreed with Rojem's assertion and found that the trial court properly denied his motion for discovery.

As in his first post-conviction appeal, Rojem claims in his second post-conviction appeal that the trial court erred in refusing to grant complete discovery of the State's entire file. ¹⁰ Rojem specifically requested access to (1) all forensic evidence gathered in the case including all OSBI files on tests run on the acid phosphatase found on the oral swab taken from the crime scene, and testing of any DNA that might have been present in that sample; (2) inspection and copying of all law enforcement files; (3) all crime scene photographs and medical examiner slides; (4) access to the light bulb from Cummings' front porch; (5) reports of State interviews with Dr. Joe Rupp and any reports prepared by Dr. Rupp; and (6) evidence related to the private investigation conducted by Donald Cummings, the victim's natural father. Since the issue of discovery was raised and ruled on in Rojem's first application for post-conviction relief, the doctrine of res judicata bars further litigation of this issue.

Rojem attempts to circumvent this hurdle by contending that new evidence has come to light since the denial of his first application for post-conviction relief was final. In support of this contention, Rojem relies heavily on Oklahoma State Bureau of Investigation ("OSBI") reports regarding Bobby Schoonover and Carl Bounds, which were uncovered during the post-conviction discovery conducted in the case of Adolph Munson. ¹¹ The Schoonover and Bounds documents were not turned over to Rojem's trial counsel. Neither Rojem's direct appeal attorney nor the attorney who represented Rojem in his first post-conviction application had access to these reports. We will examine this evidence to determine whether, in light of this newly discovered evidence, compulsion of further discovery is required.

At the outset, we reiterate the well-established rule that compulsory discovery is not required in post-conviction proceedings. ¹² In Pickens v. State, ¹³ this Court found that the trial court did not err in refusing to order discovery during post-conviction proceedings. In making this finding the Court observed, "although a prosecutor is obligated to turn over any exculpatory evidence, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Appellant has presented nothing indicating this was not done." ¹⁴ Accordingly, this Court found that the decision to not compel further discovery was not erroneous. Likewise in this case, we decline to require blanket compulsory discovery in all post-conviction proceedings. We now examine the two recently discovered OSBI reports to determine whether these reports indicate that the State may have withheld exculpatory evidence in violation of Brady v. Maryland, ¹⁵ as Rojem alleges, and whether, based on this particular failure to disclose, further discovery is required.

"[S]uppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." ¹⁶ As the Supreme Court explained:

[the] touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the Government's evidentiary suppression "undermines confidence in the outcome of the trial." ¹⁷

Here, the district court concluded that the two OSBI reports at issue were not exculpatory and were not material to Rojem's case. We agree with the district court that this evidence was not material.

The OSBI report regarding Bobby Schoonover reveals that Schoonover was staying in a motel in Clinton, Oklahoma on July 12, 1984. There is nothing in the report to suggest that Schoonover was in Clinton or Elk City on July 7, the day on which Cummings was kidnapped and murdered. Staying in a motel in a nearby city several days after a murder is insufficient to connect one to that crime. The report further indicates Schoonover lied to motel personnel by telling them that he was an OSBI agent who was investigating the murder of Alma Hall and "the little girl homicide." Again, this lie is insufficient to connect Schoonover to Cummings' murder. Schoonover also described the wounds inflicted on the child to motel personnel. Rojem attaches great significance to Schoonover's description of Cummings' wounds claiming that this information was not public information at the time Schoonover made his statement to motel personnel. However, to support this claim, Rojem provides only the unsubstantiated contention of an Oklahoma Indigent Defense System ("OIDS") investigator. This is insufficient. Further, in contrast to Rojem's unsubstantiated claim, the OSBI report indicated that in an interview with Schoonover,...