Stafford v. State

Citation1983 OK CR 86,665 P.2d 1205
Decision Date20 June 1983
Docket NumberNo. F-79-722,F-79-722
PartiesRoger Dale STAFFORD, Sr., Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Roger Dale Stafford, appellant, was convicted on six counts of Murder in the First Degree in Oklahoma County Case No. CRF-79-926. The jury imposed the death penalty on all counts. The appellant perfected an appeal to this Court. The judgments and sentences are AFFIRMED.

Garvin A. Isaacs, Isaacs & Angel, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Appellate Crim. Div., Oklahoma City, for appellee.



Roger Dale Stafford was convicted on six counts of Murder in the First Degree and sentenced to death.

On July 16, 1978, Roger Stafford, his wife, Verna Stafford, and his brother, Harold Stafford, drove from Tulsa to Oklahoma City to rob the Sirloin Stockade Restaurant. The trio waited in the restaurant parking lot until all the customers had left. At around 10:00 p.m. they exited their automobile and Roger Stafford knocked on the side door of the restaurant. The manager answered the door and was greeted by Roger and Harold Stafford pointing guns at him. They forced him to take them to the cash register and the office safe.

Inside the restaurant, the manager began taunting them, saying that he could not understand why people rob others instead of working for themselves. Roger Stafford hit the manager and demanded that he call his employees to the cash register. The manager complied with the demand.

Harold and Verna Stafford held the employees at gunpoint while the appellant and the manager emptied the office safe which contained about $1290.00. After they obtained the money, the employees were ordered inside the restaurant's walk-in freezer. The appellant then asked Harold Stafford to help him in the freezer. Harold reminded the appellant that no one was to be hurt. The appellant retorted that "they are going to get what they deserve." He then shot the only black employee, and both men opened fire on the remaining employees. Verna Stafford testified that she heard a lot of gunfire and screaming.

Roger Stafford then told Verna that it was time for her to take part. He placed his gun in Verna's hand and helped her pull the trigger. All six Sirloin Stockade employees died as a result of the shootings.


The appellant argues that 21 O.S.1981, § 701.11 unconstitutionally shifts the burden of proof to the defendant by requiring him to present evidence in mitigation of the death penalty. Section 701.11 mandates that in order to impose a sentence of death the jury must unanimously find at least one aggravating circumstance beyond a reasonable doubt. Additionally, if the jury does find that an aggravating circumstance exists, it must determine whether the aggravating circumstance(s) is outweighed by the finding of one or more mitigating circumstances.

Section 701.11 clearly places the burden of proof on the State to prove beyond a reasonable doubt the existence of any aggravating circumstances. The defendant is merely required to come forward with evidence of any mitigating circumstances, if he wishes to do so. The mitigating circumstances which exist in any given case are peculiarly within the knowledge of the defendant. We hold that this statutory scheme does not offend the Eighth or the Fourteenth Amendments of the United States Constitution. Parks v. State, 651 P.2d 686 (Okl.Cr.1982). We further find that this procedure was implicitly upheld by the U.S. Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).


Stafford also contends that he should have been granted a preliminary hearing on the aggravating circumstances the State intended to prove. We addressed this issue in Johnson v. State, 665 P.2d 815 (Okl.Cr.1983), and Brewer v. State, 650 P.2d 54 (Okl.Cr.1982), where we rejected the argument that a preliminary hearing is required on the bill of particulars in a capital case. We find these cases to be dispositive of the issue at bar.


Appellant next contends that he was denied the effective assistance of counsel. This case was tried prior to Johnson v. State, 620 P.2d 1311 (Okl.Cr.1980), wherein we prospectively adopted the "reasonably competent assistance of counsel" test. Accordingly, appellant must show that counsel's performance was so ineffective that the trial was reduced to a farce or mockery of justice, or was shocking to the conscience of this Court, or that counsel's services were only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. The burden is a heavy one, and is not satisfied by simply pointing out possible errors in counsel's judgment, or lack of success in the defense. See Phillips v. State, 650 P.2d 876 (Okl.Cr.1982).

A number of alleged instances of attorney ineffectiveness are set out in appellant's briefs. He contends that the motion for new trial was "feeble", reflecting incompetence. He appears to complain of the omission from that pleading of many of the allegations of error now urged on appeal.

The office of the motion for new trial is to put the trial judge on notice of alleged errors so that he or she can take curative action, and specific statement of the allegations of error in the motion for new trial is necessary in order to preserve such error for appellate review. See McDuffie v. State, 651 P.2d 1055 (Okl.Cr.1982). We have fully reviewed the errors alleged on appeal, and we find that none are sufficient to warrant reversal or modification. The omission of nonmeritorious arguments from the motion for new trial does not evidence attorney incompetence. See People v. Tedder, 83 Ill.App.3d 874, 39 Ill.Dec. 53, 404 N.E.2d 437 (1980).

Appellant next contends that trial counsel permitted television cameras in the courtroom to appellant's detriment. However, it is clear that appellant personally approved the presence of such equipment after being fully advised of his rights in open court by the trial judge. [Transcript of Hearing as to Televised Proceedings, 3-6.] This is consistent with his prior action at an earlier stage of the proceedings while represented by other counsel. [Appearance Docket, O.R. 364.]

There is no indication that Canon 3(A)(7), 5 O.S.1981, Ch. 1, App. 4, which limits the number and kind of cameras and microphones and enjoins the disruptive use of such equipment, was not strictly complied with in this matter. Finally, the jury was sequestered, and there is no showing that they were exposed to the resulting news coverage.

Appellant further contends that trial counsel unethically solicited the representation, improperly contracted for publication rights in the case, and breached a promise to provide all the funds necessary for the defense. These contentions rest on alleged facts wholly outside the record. We denied a motion to remand for an evidentiary hearing on similar allegations. Stafford v. State, F-79-722 and F-80-256, November 4, 1981.

In order to prove the necessary facts, appellant has submitted with his brief the unverified affidavit of present counsel relating the hearsay statements of named and unnamed third persons, and a purported but unauthenticated page from defense trial notes in the case. We deem it improper to permit the litigation of such factual issues by ex parte affidavits and attachments on appeal. Such procedure has been condemned in other jurisdictions. See United States v. Thompson, 475 F.2d 931 (D.C.Cir.1973); State v. Gross, 221 Kan. 98, 558 P.2d 665 (1976); Pollan v. State, 612 S.W.2d 594 (Tex.Cr.App.1981); People v. Penn, 70 Mich.App. 638, 247 N.W.2d 575 (1976).

However, we are of the opinion, from a careful reading of the entire transcript and original record, that there is a sufficient record before us to resolve the appellant's allegation that he was prejudiced by the existence of a contract between himself and trial counsel, J. Malone Brewer, because Brewer failed to uphold his end of the bargain, to wit: the investigation and presentation of a defense at trial. We have reviewed each of the alleged flaws in counsel's performance in light of the alleged conflict of interest. The trial transcript amply demonstrates that Stafford was neither prejudiced nor otherwise adversely affected by the possible existence or breach of any contract with his trial counsel. See United States v. Hearst, 638 F.2d 1190 (9th Cir.1980), cert. den. 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325. Even if there was proof of the existence of a contract, it would merit his cause nothing. An ethical violation, standing alone, does not constitute ineffective assistance of counsel.

Appellant urges that trial counsel failed to investigate appellant's psychiatric background since he did not offer such evidence in mitigation during the sentencing hearing. This argument supposes the existence of favorable psychiatric testimony. The record does not support the supposition.

Appellant was delivered to Eastern State Hospital in Vinita, Oklahoma, on March 27, 1979, for various treatments, including "complete psychological profile" and "complete psychiatric examination and evaluation." He was to be held up to sixty days, but was discharged a short time later on April 18, 1979. Prior to trial, trial counsel moved for the production of the psychological evaluation expressing the belief that it would be exculpatory. Although the disposition of this request is not clear, a communication from the prosecutor's office to defense counsel dated October 4, 1979, indicates that all requested reports were delivered to trial counsel.

Appellant has the burden of proving his ineffectiveness of counsel argument. Phillips v. State, supra. The crucial psychological evaluation is not in the record on appeal, and we...

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