Stafford v. State

• Decision Date: 16 January 1987
• Docket Number: No. PC-86-774,PC-86-774
• Citation: 731 P.2d 1372
• Parties: Roger Dale STAFFORD, Petitioner, v. The STATE of Oklahoma, Gary Maynard, Warden, State Penitentiary at McAlester, Larry Meachum, Director, Oklahoma Department of Corrections, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1372

731 P.2d 1372

Roger Dale STAFFORD, Petitioner, v. The STATE of Oklahoma, Gary Maynard, Warden, State

Penitentiary at McAlester, Larry Meachum,

Director, Oklahoma Department of

Corrections, Respondents.

No. PC-86-774.

Court of Criminal Appeals of Oklahoma.

Jan. 16, 1987.

ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF

BRETT, Presiding Judge.

On October 17, 1979, petitioner, Roger Dale Stafford, was convicted for First Degree Murder in six separate counts in Oklahoma County District Court Case No. CRF-79-926. Judgment and sentence was imposed on October 23, 1979. On June 20, 1983, this Court affirmed petitioner's convictions. See Stafford v. State, 665 P.2d 1205 (Okl.Cr.1983). The petition for rehearing was denied July 26, 1983. The United States Supreme Court remanded petitioner's case to this Court for reconsideration in light of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On remand to this Court, the case was reconsidered and on May 13, 1985, petitioner's claims were denied. Stafford v. State, 700 P.2d 223 (Okl.Cr.1985). Certiorari was denied by the United States Supreme Court on October 1, 1985. The Oklahoma County District Court denied petitioner post-conviction relief on October 2, 1986. From that denial, this appeal has been lodged. The district court order making findings of fact and conclusions of law is attached hereto as an appendix no. 1.

A petition was filed in this Court seeking to examine all of the Oklahoma State Bureau of Investigation files pertaining to petitioner's case, for the purpose of ascertaining if there exists any exculpatory evidence in them. A hearing was held in this Court at the conclusion of which the Honorable Judge Raymond Naifeh, Oklahoma County District Judge, was ordered to conduct an in camera review of all of those records to determine whether or not exculpatory evidence was contained in them. At the conclusion of that review, any exculpatory evidence was made available to petitioner, after which the evidentiary hearing on his post-conviction application was conducted. See appendix 2.

In the brief filed in this Court supporting his appeal, petitioner presents his assignments of error in five propositions.

In his first proposition of error, petitioner asserts that his death sentences should be overturned because he was denied exculpatory evidence by the Oklahoma County District Attorney. In particular, petitioner refers to the statement of Verna Stafford made on March 8, 1979. This issue was determined by this Court when petitioner's regular appeal was considered. This Court stated: "[E]ven if the prosecution did fail to provide the defense with the March 8th statement, it did not affect the outcome of the trial since the prosecution presented this evidence to the jury for their consideration." 665 P.2d at 1215-16. The testimony at the evidentiary hearing revealed that all of the evidence pertaining to this case was retained in one room of the district attorney's offices and that both defense counsels, and the legal intern assisting them had complete access to those files. Consequently, it was made clear that all the materials, whether exculpatory or not, were made available to petitioner and his attorneys.

Unless the alleged omission deprived petitioner of a fair trial, there is no constitutional obligation requiring the verdict to be set aside and absent some constitutional violation there was no breach of the prosecutor's constitutional duty to disclose. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Bagley held that there has to be a showing that Petitioner's second proposition asserts the claim of ineffective counsel. This contention was considered by this Court and determined in Stafford v. State, 700 P.2d 223 (Okl.Cr.1985), when this precise question was remanded to this Court by the United States Supreme Court. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, was the gauge against which counsel's performance was compared. Petitioner's new assertion is insufficient to sustain his contentions.

there is a reasonable probability that had the evidence been disclosed to the defense, the results of the proceeding would have been different. This Court has already held that such reasonable probability does not exist. Stafford v. State, 665 P.2d at 1215-16.

In his third proposition, petitioner asserts that it was error to have admitted the testimony of Pam Lynch and Verna Stafford because it was tainted by hypnotic enhancement. Prior to the attempt to hypnotize her, Verna Stafford had already informed the police of her husband's involvement in the murders. This Court held in Johnson v. State, 665 P.2d 815, 820 (Okl.Cr.1982), that when hypnotic testing does not in any manner affect the testimony of a witness, which is already on record, the testimony may not be tainted. Also, there was little question concerning the ability of Verna Stafford to identify her husband, whether or not she was hypnotized. We fail to see how petitioner was prejudiced by admission of her testimony in this case.

The testimony of Pam Lynch has previously been upheld in Stafford v. State, 669 P.2d 285, 294 (Okl.Cr.1983), in his trial and conviction for three murders in McClain County District Court. Likewise, this holding is consistent with this Court's holdings in Robison v. State, 677 P.2d 1080 (Okl.Cr.1984). We therefore deny this assignment of error.

In his fourth proposition, petitioner asserts that his Constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution were violated by the trial court's instructions in the second stage of his trial.

A. He first asserts that the court's refusal to consider sympathy is a constitutional error. His assertion that the trial court's instruction twelve was erroneous is without merit. This contention was not raised on petitioner's direct appeal from his conviction and is not entitled to be raised on post-conviction appeal. Cartwright v. State, 708 P.2d 592, 594-95 (Okl.Cr.1985), sub. nom Cartwright v. Maynard, 802 F.2d 1203 (10th Cir.1986); Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr.1985). See also Pierre v. Shulsen, 802 F.2d 1282, 1283, (10th Cir.1986), where the U.S. Tenth Circuit Court held petitioner in a death penalty case was barred from raising certain issues regarding the second stage of his trial since he failed to present this issue on direct appeal, as required by Utah law. In addition, in this case no objection was made at trial to this instruction. By statute in Oklahoma, petitioner is entitled to offer any mitigating evidence to the jury, but sympathy is not acceptable.

B. Next petitioner asserts that the court's instructions did not give the jury sufficient discretion to return a verdict for life imprisonment. Again, this contention was not raised on petitioner's direct appeal and is, therefore, not entitled to be raised on post-conviction appeal. Likewise, the court's instructions were not objected to at trial and any objection is now waived. Green v. State, 713 P.2d 1032 (Okl.Cr.1985). Also, the court's instructions comply with the Oklahoma Statutes. This contention is denied.

C. Petitioner asserts that the court's instructions shifted the burden of proof to him to prove that the death penalty should not be assessed. Specific standards for balancing aggravating and mitigating circumstances are not constitutionally required. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Petitioner failed to offer any objections to the court's instructions at the time of trial. He, therefore, has waived any complaint on post-conviction.

D. Petitioner's last contention under this assignment asserts that the nature and function of the mitigating circumstances were not adequately defined. In the present case, the trial court instructed the jury on the mitigating circumstances in accordance with Oklahoma law. The jury was also instructed to consider all of the evidence received by them in open court, as well as all of the evidence offered by petitioner to mitigate or lessen his culpability. In his brief, petitioner states, "The jurors were never told in substance that the law recognizes the existence of circumstances which do not justify or excuse the offense but which may in fairness or mercy be considered as extenuating or reducing the degree of moral culpability or punishment." Citing Spivey v. Zant, 661 F.2d 464, 471 (5th Cir. Unit B.), cert. denied 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982). However, a review of Zant, reveals that the Georgia Trial Court did not instruct on any mitigating circumstances. Whereas, the Oklahoma Statutes provide in 21 O.S. 1981, 701.10, in part, that a defendant may introduce evidence as to any mitigating circumstances. Once those mitigating circumstances are entered, the trial court must instruct the jury that they may consider any of the mitigating evidence as extenuating or as reducing the degree of moral culpability or blame. We, therefore, find the statute is in compliance with constitutional requirements. Cf. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1; Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

In the instant case, the trial court's instruction number eight, given at the second stage of trial recites the following:

You are instructed that mitigating circumstances are not specifically enumerated in the statutes of this State but the law of this State sets up certain minimum mitigating circumstances you shall follow as guidelines in determining which sentence you impose in this case. You shall consider any or all of these minimum mitigating circumstances. You may consider any additional mitigating circumstance, if any, you find from the evidence in this case. What are and what are not additional mitigating...