Scott v. State

• Decision Date: 11 July 1997
• Docket Number: No. PC-96-1270,PC-96-1270
• Citation: 1997 OK CR 40,942 P.2d 755
• Parties: 1997 OK CR 40 Sidney Soren SCOTT, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 755

942 P.2d 755

1997 OK CR 40

Sidney Soren SCOTT, Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-96-1270.

Court of Criminal Appeals of Oklahoma.

July 11, 1997.

Randy A. Bauman, Deputy, Capital Post Conviction, Norman, for Petitioner.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF AND

REQUESTS FOR AN EVIDENTIARY HEARING AND DISCOVERY

STRUBHAR, Vice Presiding Judge:

Sidney Soren Scott, Petitioner, was tried by jury in the District Court of McIntosh County, Case No. F-90-34, before the Honorable J.M. LeMasters, Jr., Associate District Judge, and convicted of Murder in the first degree ¹ for the death of Henry Mattocks. ² The jury found two (2) aggravating circumstances ³ and recommended death. The trial court sentenced Scott accordingly. Scott appealed his Judgment and Sentence to this Court and we affirmed. Scott v. State, 891 P.2d 1283 (Okl.Cr.1995). Scott subsequently filed a Petition for Rehearing which we denied on June 6, 1995. ⁴ The United States Supreme Court denied Scott's petition for a writ of certiorari on January 16, 1996. Scott v. Oklahoma, 516 U.S. 1077, 116 S.Ct. 784, 133 L.Ed.2d 735 (1996).

On October 14, 1996, Scott filed in this Court an original application for post-conviction relief together with requests for discovery and an evidentiary hearing. ⁵ The issues that may be raised, as well as our scope of review, in this matter are narrowly defined as follows:

The only issues that can be raised in post-conviction are those which were not or could not have been raised in a direct appeal and support a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. On review, this Court must determine whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, whether the applicant's grounds were or could have been previously raised, and whether relief may be granted.... This Court will not consider an issue which was raised on direct appeal and is therefore barred by res judicata, nor will we consider an issue which has been waived because it could have been raised on direct appeal but was not.

McGregor v. State, 935 P.2d 332, 333-34 (Okl.Cr.1997) (footnotes omitted). Based on the foregoing precepts, we will not review the claims raised in Propositions III, ⁶ IV, ⁷ VII, ⁸ IX, ⁹ X, ¹⁰ XI, ¹¹ XII ¹² or XIII ¹³ because these claims are waived, i.e. the claims could have been raised on direct appeal but were not.

In a proposition labeled preliminary concern, Scott challenges the constitutionality of the recent amendments to the Post-Conviction Procedure Act. He urges this Court to reconsider whether the new post-conviction scheme, both on its face and as applied, denies applicants due process, equal protection, equal and adequate access to the courts or violates the Ex Post Facto Clause. We have consistently rejected this constitutional attack on Oklahoma's current capital post-conviction procedure and we are not persuaded by Scott's argument to hold otherwise. Mitchell v. State, 934 P.2d 346, 349 (Okl.Cr.1997); Rogers v. State, 934 P.2d 1093, 1096 (Okl.Cr.1997); Walker v. State, 933 P.2d 327, 330 (Okl.Cr.1997); Hatch v. State, 924 P.2d 284, 289-293 (Okl.Cr.1996). Accordingly, this proposition is denied.

In his first proposition, Scott argues that the "clear and convincing" burden of proof applied in the trial court's evaluation of his competency to stand trial violates his right to due process. To support his claim, Scott cites Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), in which the United States Supreme Court held that Oklahoma's competency scheme that required defendants to prove their incompetence by "clear and convincing" evidence violated due process. This Court has declined to apply Cooper on post-conviction review. McGregor, 935 P.2d at 334; Rogers, 934 P.2d at 1096; Mitchell, 934 P.2d at 349; Walker, 933 P.2d at 339. As such, this proposition is denied.

In his second proposition, Scott claims the prosecution failed to disclose exculpatory evidence material to the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He argues that this claim could not have been raised on direct appeal because the withheld exculpatory evidence was recently discovered during post-conviction investigation. He further maintains that this withheld exculpatory evidence supports the conclusion that the outcome of the trial would have been different if the exculpatory evidence had been disclosed and/or that the defendant is factually innocent.

First, Scott complains about a letter disclosed after trial in which Neal Rinker writes that he cut an unknown old man's throat at some unknown time and place. This letter was the subject of a motion for new trial. The trial court concluded that the letter was not exculpatory. This ruling was not pursued on direct appeal, but could have been. Accordingly, this portion of the claim is waived and further review is precluded. 22 O.S.Supp.1995, § 1089(C).

Next, Scott claims he has recently discovered that J.C. Marshall overheard Rinker confess to Charlotte Rinker that he killed Mattocks. In an affidavit, Marshall claims that he told two officers about the conversation and the officers told him that the conversation was hearsay and that they would not need Marshall at trial.

Under the revised post-conviction procedure act, Scott must show that this claim was not and could not have been raised on direct appeal and that it supports a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. 22 O.S.Supp.1995, § 1089(C)(1) & (2). We have carefully reviewed this allegation, but are unable to conclude that this claim could not have been raised on direct appeal. Moreover, we are unable to conclude that this claim would have changed the outcome of the trial or that it supports the conclusion that Scott is factually innocent since three witnesses excluding Rinker testified that Scott confessed to them the morning after the murder. Accordingly, this proposition is denied.

In his fifth proposition, Scott argues that he was denied his right to the effective assistance of appellate counsel. Scott complains that counsel failed to raise two claims that mandated relief as well as various others. As such Scott maintains that he can show appellate counsel was deficient and that he was prejudiced by the deficient performance. ¹⁴

"Ineffective assistance of appellate counsel claims are properly before us only if the Court finds that if the allegations were true, the performance of appellate counsel would constitute the denial of reasonably competent assistance of appellate counsel under prevailing professional norms." McGregor, 935 P.2d at 335. We analyze appellate counsel ineffectiveness claims using the three-tiered scheme set forth in Walker, 933 P.2d at 333.

Scott argues appellate counsel was deficient because she failed to raise the following substantive claims: exculpatory evidence was withheld from the defense (also raised in Proposition II); required instructions on voluntary intoxication, second degree murder and first degree manslaughter were omitted from the jury charge (also raised in Proposition III); the trial court utilized an erroneous burden of proof in the competency proceeding and the competency determination was unreliable (also raised in Propositions I & IX); Scott was deprived of experts necessary to his defense (also raised in Proposition IV); trial counsel was ineffective (also raised in Proposition VI); prosecutorial misconduct (also raised in Proposition VII); the State used duplicative aggravating circumstances (also raised in Proposition VIII); the "avoid arrest" aggravator is unconstitutional (also raised in Proposition X); improper gruesome photographs were admitted (also raised in Proposition XI); and the trial judge was biased (also raised in Proposition XIII).

The record reveals that appellate counsel failed to raise the substantive claims listed above. As such Scott has satisfied our threshold inquiry and established that appellate counsel actually committed the conduct giving rise to the allegations of ineffective assistance. McGregor, 935 P.2d at 336. We thus reach the next level of inquiry, which is whether appellate counsel's omission of these claims constituted deficient performance of appellate counsel. Walker, 933 P.2d at 335. To support his contention that appellate counsel's performance was deficient under prevailing professional norms, Scott has submitted an affidavit from appellate counsel stating that she was not given any formal training when she joined the Oklahoma Indigent Defense System, that Scott's brief was the second brief she had written, that in addition to Scott's case she was given a full caseload and was extremely busy during the briefing time of Scott's appeal, that she was the primary caretaker of her terminally ill father who died two months prior to the filing of Scott's brief, that the death of her father had a profound effect upon her, that she "missed" the issues concerning intoxication and lesser offense instructions, prosecutorial misconduct and lack of expert assistance at trial and that she misunderstood the law concerning the claims of withholding exculpatory evidence and trial counsel ineffectiveness. See Exhibit G. Scott also submits an affidavit from appellate counsel Lee Ann Jones Peters who states that appellate counsel Walker's performance fell below reasonable professional norms. See Exhibit H.

As we stated in Walker, we require post-conviction applicants to "set forth sufficient facts and law to enable this Court to fully assess appellate counsel's allegedly deficient performance." Walker, 933 P.2d at 333. "When a criminal defense attorney attests to his or her own ineffectiveness in an effort to...