Smith v. State

• Decision Date: 24 March 1998
• Docket Number: No. PC-97-982,PC-97-982
• Citation: 955 P.2d 734
• Parties: 1998 OK CR 20 Roderick L. SMITH, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 734

955 P.2d 734

1998 OK CR 20

Roderick L. SMITH, Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-97-982.

Court of Criminal Appeals of Oklahoma.

March 24, 1998.

Alexandra B. Fensterer, Terri L. Marroquin, Jeremy B. Lowrey, Oklahoma Indigent Defense System, Norman, for Petitioner on appeal.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF

STRUBHAR, Vice Presiding Judge:

¶1 Petitioner, Roderick L. Smith, was charged with five counts of First Degree Murder in violation of 21 O.S.1991, § 707.7, in the District Court of Oklahoma County, Case No. CF-93-3968. The case was tried before the Honorable Richard W. Freeman. The State filed a Bill of Particulars alleging five aggravating circumstances. The jury found Petitioner guilty of the crimes charged and found all five alleged aggravating circumstances to exist. ¹ In accordance with the jury's recommendation, Petitioner was sentenced to death on all counts. Petitioner appealed this Judgment and Sentence to this Court and we affirmed both in Smith v. State, 1996 OK CR 50, 932 P.2d 521, cert. denied, --- U.S. ----, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997). Petitioner subsequently filed with this Court an application for post-conviction relief.

¶2 Under the Post-Conviction Procedure Act, the only issues that can be raised on post-conviction are those that "[w]ere not and could not have been raised in a direct appeal ... and ... [which] [s]upport a conclusion either that the outcome of trial would have been different but for the errors or that the defendant is factually innocent." 22 O.S.Supp.1995, § 1089(C)(1) and (2). On review, this Court will determine: "(1) whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist; (2) whether the applicant's grounds were or could have been previously raised; and (3) whether relief may be granted...." 22 O.S.Supp.1995, § 1089(D)(4)(a). Further, this Court will not consider issues which were raised on direct appeal and are barred by res judicata, or issues which have been waived because they could have been, but were not, raised on direct appeal. Cannon v. State, 1997 OK CR 13, 933 P.2d 926, 928.

¶3 In Proposition I, Petitioner claims he was denied a fair trial because the prosecutor improperly withheld information regarding his mental disability that would have been helpful to his defense. This issue could have been raised on direct appeal, but was not. Accordingly, the claim is waived and barred from review under section 1089(C). Petitioner also contends his trial counsel was ineffective because he failed to investigate available information which cast doubt on Petitioner's competence. Claims of ineffective assistance of trial counsel are appropriate under the capital post-conviction procedure statute only if they require fact-finding outside the direct appeal record. 22 O.S.Supp.1995, § 1089(D)(4)(b)(1). Petitioner has not demonstrated that the information giving rise to his claim of ineffective trial counsel was not available to his appellate counsel. Accordingly, this claim must fail. See Walker v. State, 1997 OK CR 3, 933 P.2d 327, 332, cert. denied, --- U.S. ----, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997).

¶4 In his second proposition, Petitioner argues he was deprived of his right to due process because the prosecution committed deliberate acts of misconduct, including misstating the facts of the case and the date that the homicide occurred. Again, because this issue could have been raised on direct appeal, but was not, we find it is waived and barred from review under section 1089(C).

¶5 It is argued in Proposition III, that trial counsel was ineffective for failing to adequately understand, investigate, develop and present evidence of Petitioner's brain dysfunction. He claims that his trial counsel's shortcomings rendered the defense experts' testimony prejudicial and futile to his defense during both stages of trial. The information upon which Petitioner has relied in raising this claim required no "factfinding outside the direct appeal record." 22 O.S.Supp.1995, § 1089(D)(4)(b)(1). Stated otherwise, because the facts generating this claim were available to Petitioner's appellate counsel and could have been used in his direct appeal, this claim of ineffective assistance of trial counsel is barred from review. See Walker, 933 P.2d at 332.

¶6 Petitioner goes on to assert that if this Court finds this claim of ineffective assistance of trial counsel could have been raised on direct appeal, the Court should also find that his appellate counsel was ineffective for failing to raise it. Under the Post-Conviction Procedure Act, a claim of ineffective assistance of appellate counsel is not procedurally barred if

it is a claim contained in an original timely application for post-conviction relief relating to ineffective assistance of appellate counsel and the Court of Criminal Appeals first finds that if the allegations in the application were true, the performance of appellate counsel constitutes the denial of reasonably competent assistance of appellate counsel under prevailing professional norms.

22 O.S.Supp.1995, § 1089(D)(4)(b)(2). Applying these statutory guidelines, this Court recently held:

[T]he threshold inquiry is (1) whether appellate counsel actually committed the act which gave rise to the ineffective assistance allegation.... [T]he next question is (2) whether such performance was deficient under the first prong of the two-pronged test in Strickland v. Washington. ² ... If a petitioner meets his or her heavy burden to prove deficient attorney performance, we may then consider the mishandled substantive claim. The question then becomes (3) whether such a claim meets the second prerequisite to capital post-conviction review.

Walker, 933 P.2d at 333 (footnotes omitted).

¶7 Because a review of the record reveals that the above mentioned issue was not raised by appellate counsel on direct appeal, Petitioner has made the threshold showing that counsel committed the act which gave rise to the ineffective assistance allegation. Having found such, we must now determine whether counsel's failure to raise this issue on direct appeal constitutes deficient performance.

¶8 Petitioner presents no facts specifically supporting his allegation that appellate counsel was ineffective for omitting the above issue from his direct appeal. Conclusory allegations, standing alone, will never support a finding that an attorney's performance was deficient. See Valdez v. State, 1997 OK CR 12, 933 P.2d 931, 934. As Petitioner has failed to show his direct appeal attorney's performance was deficient under the first prong of the Strickland test, he has failed to establish ineffective counsel under this Court's test. Accordingly, this proposition of error must fail.

¶9 In Proposition IV, Petitioner raises issues relating to his competency to stand trial. Petitioner contends that he was denied an opportunity to develop and present expert testimony concerning his competence to stand trial. He further contends that trial counsel was ineffective for failing to adequately litigate the issue of competency. We find that issues regarding Petitioner's opportunity to challenge his competency to stand trial could have been raised on direct appeal. As they were not, we find they are waived and barred from review under section 1089(C). We also find that the facts generating Petitioner's claim that his trial counsel was ineffective for failing to fully litigate his competency were available to Petitioner's appellate counsel and could have been raised in his direct appeal. Accordingly, this claim of ineffective assistance of trial counsel is barred from review. See Walker, 933 P.2d at 332.

¶10 Petitioner also complains in his fourth proposition that this Court's direct appeal review of the issues raised regarding his competency to stand trial without remand for an evidentiary hearing failed to remedy the errors concerning the determination of his competency. On direct appeal, this Court acknowledged that in determining Petitioner's competency to stand trial, the trial court had unconstitutionally required Petitioner to prove his incompetence by clear and convincing evidence. ³ This Court reviewed the evidence presented at Petitioner's competency hearing and other relevant evidence contained within the record, and determined that the defense had failed to prove, even by a preponderance of the evidence, that Petitioner was incompetent to stand trial. See Smith, 932 P.2d at 527-28. Petitioner suggests on post-conviction that if this Court would have remanded the matter for an evidentiary hearing instead of resolving the errors by reviewing the evidence presented in the record on direct appeal, previously undisclosed facts impacting the competency determination could have been considered. That the evidence discovered on post-conviction would have been discovered and presented at an evidentiary hearing is speculative. Had Petitioner discovered this evidence and wanted it considered in his competency determination, it should have been raised on direct appeal. As it was not, consideration of this evidence and any impact it may have had is barred from review.

¶11 Next, Petitioner argues in Proposition V, that his constitutional rights were violated because Oklahoma law does not provide for jury instructions on manslaughter due to mental disease or defect. Again, because this issue could have been raised on direct appeal, but was not, we find it to be waived and barred from review under section 1089(C).

¶12 In his sixth proposition, Petitioner complains that he was denied effective assistance of trial counsel because his attorney did not object or request a limiting instruction for prejudicial hearsay testimony regarding the history of domestic violence between Petitioner and the victims. This claim does not require fact-finding outside the direct appeal record as is...