Shultz v. State, F-89-416

Decision Date08 May 1991
Docket NumberNo. F-89-416,F-89-416
Citation1991 OK CR 57,811 P.2d 1322
PartiesVestor SHULTZ, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
the District Court of Washita County, Case No. CRF-88-21. Appellant was sentenced to twenty (20) years imprisonment and a twenty-five thousand dollar ($25,000) fine in Count I and twenty (20) years imprisonment and a twenty thousand dollar ($20,000) fine in Count II. From this judgment and sentence, Appellant appeals. AFFIRMED
OPINION

LUMPKIN, Vice-Presiding Judge:

Appellant Vestor Shultz was tried by jury and convicted of Knowingly Possessing Sexual Material Involving the Participation of a Minor Child (Two Counts) in violation of 21 O.S.Supp.1986, § 1021.2 in the District Court of Washita County, Case No. CRF-88-21. The jury recommended as punishment twenty (20) years imprisonment and a twenty-five thousand dollar ($25,000) fine in Count I and twenty (20) years imprisonment and a twenty thousand dollar ($20,000) fine in Count II. The trial court sentenced accordingly, and it is from this judgment and sentence that Appellant appeals. We affirm.

In May 1988, David Merkey and his wife M.M. were moving her personal belongings out of the Cordell home of her step-father, the Appellant. While picking up boxes in the attic, Mr. Merkey discovered a large proof sheet containing numerous small photographs of a nude young girl in various pornographic positions. He showed the photographs to his wife who admitted that she was the subject of the photographs and that the Appellant had taken the photographs when she was approximately ten (10) or twelve (12) years old. It was not until three months later that Mr. Merkey was able to convince his wife to turn the photographs over to the police. Based upon information from M.M., a search warrant for Appellant's home was issued. Executed on August 10, 1988 the search warrant yielded approximately eleven (11) videotapes of a pornographic nature and numerous pornographic magazines.

At trial, M.M. testified that Appellant had taken a "couple hundred" nude photographs of her and her younger sister. She also described a home videotape made by Appellant of herself, her sister and their young friends, wherein a portion of the tape shows the girls in various stages of undressing and the Appellant participating in sexual intercourse with M.M.

The Appellant testified in his own behalf and denied taking the nude photographs of M.M. He also denied ownership of the videotape, stating that it belonged to his wife who had long ago promised to destroy it.

In his first allegation of error, Appellant contends that he was denied effective assistance of counsel by trial counsel's filing of a hastily assembled motion to suppress and by counsel's failure to request a hearing on the motion to suppress to prevent admission of evidence seized during an illegal search.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth a two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the defendant makes both showings, "it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687, 104 S.Ct. at 2064.

The record reflects that defense counsel filed a motion to suppress two days before trial. In the motion, counsel moved for suppression of all evidence, tangible or intangible, as it was seized in violation of the constitutional right to be free from unreasonable searches. Counsel also requested a hearing to determine the admissibility of the evidence pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). (O.R. 72-73) Appellant offers no proof that the motion was in fact prepared hastily. Aside from being brief, we find nothing in the record to support Appellant's claim that it was prepared without full thought and consideration. Assuming arguendo that the motion was filed in a hurry, this Court has previously held that trial counsel's lack of sufficient time to prepare, failure to produce important evidence in support of the defense theory, failure to excuse certain jurors, failure to contact key witnesses and failure to object to certain jury instructions was not sufficient to demonstrate inadequate representation under the Strickland standard. Anderson v. State, 719 P.2d 1282, 1284 (Okl.Cr.1986). This Court has refused to adopt a per se rule requiring a specified period of time or a minimum number of hours in which defense counsel must spend in pre-trial investigation and preparation. See Fisher v. State, 736 P.2d 1003, 1012 (Okl.Cr.1987).

As proof of trial counsel's alleged ineffectiveness, Appellant challenges the sufficiency of the affidavit supporting the search warrant. We have reviewed it and find it sufficient. The affidavit stated that it was based upon information obtained from David Merkey who discovered the proof sheet, attached to the affidavit as Exhibit A, in the attic of Appellant's house; M.M., Merkey's wife and the subject of the photographs on the proof sheet; a confidential informant, fifteen (15) years old, also the subject of nude photographs taken by Appellant; and an expert in the field of sexual deviate behavior. Reviewing the affidavit under the standard set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), that being the validity of an affidavit for a search warrant is to be determined by viewing the affidavit as a whole under the totality of the circumstances, we find the reliability of the information received by the affiant sufficient to find that there was probable cause to believe pornographic materials of minors could be found in Appellant's home. See Langham v. State, 787 P.2d 1279, 1280 (Okl.Cr.1990).

We have also reviewed Appellant's allegations that probable cause was based on stale information, that the search warrant itself lacked specificity in the description of material to be seized, and the existence of a technical imperfection on the return of service. None of these alleged errors would have caused the search warrant to fail. The search and seizure of Appellant's home was constitutional, therefore, trial counsel was not ineffective for failing to argue these specific allegations. The accused assumes the risk of ordinary error in his attorney's assessment of law and facts, Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir.1978). The fact that another lawyer would have followed a different course during the trial is not grounds for branding the appointed attorney with the opprobrium of ineffectiveness, or infidelity, or incompetency. Williams v. Beto, 354 F.2d 698, 706 (5th Cir.1965). Absent a showing of incompetence, the Appellant is bound by the decisions of his counsel and mistakes in tactic and trial strategy do not provide grounds for subsequent attack. Davis v. State, 759 P.2d 1033, 1036 (Okl.Cr.1988).

Here, trial counsel clearly exercised the skills of a reasonably competent attorney. Merely because he was not successful in his challenge to the search and seizure is no reason to brand him incompetent. Reviewing counsel's overall performance, we cannot say that Appellant was denied effective assistance of counsel. Accordingly, this assignment of error is denied.

Appellant alleges in his second assignment of error that he was denied a fair trial by prosecutorial misconduct in the opening statement, questioning of witnesses, and closing argument. Addressing first the opening statement, Appellant directs this Court's attention to four allegedly improper comments. Of these comments, only two received contemporaneous objections at trial and these objections were overruled. It is well settled that if no objection was made to allegedly improper comments at trial, all but fundamental error review has been waived. Ashinsky v. State, 780 P.2d 201, 205 (Okl.Cr.1989); Gaines v. State, 568 P.2d 1290, 1293 (Okl.Cr.1977). Reviewing only the comments met with an objection, we do not find that these two comments, which addressed whether the child in the video tape was intoxicated and the length of the video tape, were so improper as to require reversal. Failure to prove all remarks in opening statement in the absence of a showing bad faith and prejudice, is not grounds for reversal. Kennedy v. State, 640 P.2d 971, 980 (Okl.Cr.1982); Ragland v. State, 404 P.2d 84, 86 (Okl.Cr.1965). After carefully reviewing the record, we find no showing of bad faith or prejudice upon which error can be predicated.

Prosecutorial misconduct is also alleged to have occurred in the direct examination of M.M. and Appellant's wife Della, and in the cross-examination of Appellant. Three of four allegedly improper questions were met with contemporaneous objections, which were subsequently overruled. The prosecutor's questions to which Appellant objected concerned M.M.'s knowledge of the type of videotapes Appellant kept in his home. We do not find this inquiry to have prejudiced Appellant in light of the pornographic material admitted into evidence. As Appellant was not injured by this inquiry, reversal is not warranted.

The alleged improper inquiry during the direct examination of Della Shultz concerned the identification of clothing worn by the girls in the videotape. Appellant's objection was overruled. In light of...

To continue reading

Request your trial
23 cases
  • Romano v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 19 Diciembre 1995
    ...of the prosecutor to prove all remarks made in opening statement is error only upon proof of bad faith and prejudice. Shultz v. State, 811 P.2d 1322, 1328 (Okl.Cr.1991). Appellant claims bad faith is apparent because: (1) the prosecutor was intimately familiar with the issues and testimony ......
  • Mayes v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 24 Junio 1994
    ...v. State, 812 P.2d 384, 397-99 (Okl.Cr.1991), cert. denied, 503 U.S. 973, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992); Shultz v. State, 811 P.2d 1322, 1332 (Okl.Cr.1991). We find absolutely no merit to this Appellant next complains the photographs introduced at trial should not have been introdu......
  • Young v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 6 Septiembre 2000
    ...prove all remarks made in opening statement in the absence of a showing of bad faith and prejudice is not grounds for reversal. Shultz v. State, 1991 OK CR 57, ¶ 11, 811 P.2d 1322, ¶ 41 Here, defense counsel conceded the State did not act in bad faith when it did not produce a witness refer......
  • Braun v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 7 Agosto 1995
    ...Brown v. State, 871 P.2d 56, 62 (Okl.Cr.), cert. denied, 513 U.S. 1003, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994); Shultz v. State, 811 P.2d 1322, 1329-30 (Okl.Cr.1991). Merely showing that pre-trial publicity was adverse to him is not enough. Id.; Bear v. State, 762 P.2d 950, 953 (Okl.Cr.1988)......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT