Trice v. State

• Decision Date: 29 February 1996
• Docket Number: No. PC-94-1268,PC-94-1268
• Citation: 912 P.2d 349,1996 OK CR 10
• Parties: Eddie Leroy TRICE, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 349

912 P.2d 349

Eddie Leroy TRICE, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-94-1268.

Court of Criminal Appeals of Oklahoma.

Feb. 29, 1996.

An Appeal from the District Court of Oklahoma County; Richard Freeman, District Judge.

Vicki Ruth Adams Werneke, Patrick J. Ehlers, Jr., Assistant Appellate Indigent Defenders, Norman, for Petitioner.

W.A. Drew Edmondson, Attorney General, A. Diane Blalock, Assistant Attorney General, Oklahoma City, for Respondent.

OPINION AFFIRMING DENIAL OF PETITIONER'S APPLICATION FOR

POST-CONVICTION RELIEF

CHAPEL, Vice Presiding Judge.

Eddie Leroy Trice was tried by jury in Oklahoma County District Court Case No. CRF-87-878 and convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1981, § 701.7 (Count I), First Degree Rape in violation of 21 O.S.Supp.1986, § 1114 (Count II), First Degree Burglary in violation of 21 O.S.1981, § 1431 (Count III), and Assault and Battery with a Dangerous Weapon in violation of 21 O.S.Supp.1982, § 645 (Count IV). Counts II through IV were charged after former conviction of two or more felonies. After finding the aggravating circumstances that Trice had previously been convicted of a violent felony, that he knowingly created a great risk of death to more than one person during the homicide, that the murder was especially heinous, atrocious or cruel and that he posed a continuing threat to society, the jury recommended and the Honorable William R. Burkett imposed a sentence of death for the murder charge. ¹ In accordance with the jury's further recommendation, the judge sentenced Trice to consecutive 999 year sentences on the remaining three counts.

This Court affirmed Trice's conviction and sentence in Trice v. State, ² and subsequently denied his petition for rehearing. The United States Supreme Court denied Trice's petition for writ of certiorari on December 11, 1993. ³ On August 29, 1994, Trice filed an application for post-conviction relief in Oklahoma County District Court. ⁴ That application was denied on November 18, 1994. Trice now appeals the district court's denial of his application for post-conviction relief.

ISSUES BARRED BY RES JUDICATA

Trice argues in his first proposition that the trial court committed reversible error in refusing to allow testimony from a defense witness who planned to inform the jury how many years a convict serving several consecutive life sentences would actually spend in prison. He acknowledges that this very claim was raised and rejected on direct appeal, ⁵ but argues it is not procedurally barred as res judicata because it is grounded in Simmons v. South Carolina ⁶--a case which 1) constitutes an intervening change in constitutional law and 2) impacts his judgment and sentence. ⁷ We find Simmons inapplicable and thus hold Trice's claim procedurally barred as res judicata.

Shortly before his capital murder trial, the petitioner in Simmons pled guilty to and was convicted of several violent felony offenses. As a convicted violent felony offender, Simmons would--under South Carolina law--be rendered parole-ineligible if he were subsequently convicted of another violent felony. That subsequent conviction occurred when the jury in the first phase of Simmons's capital trial found him guilty of first degree murder. Thus, Simmons was parole-ineligible as he entered the penalty phase of his capital trial during which the jury had the option of sentencing him to life imprisonment or death.

Though fully aware that Simmons would never get out of prison if the jury opted for a life sentence rather than death, the prosecution vigorously argued during the penalty phase that Simmons posed a continuing threat to elderly women and urged the jury to consider this fact in fixing the appropriate punishment. In an effort to rebut the prosecution's future dangerousness argument, Simmons asked the trial court to explain to the jury that because he was parole-ineligible, a sentence of life imprisonment would in fact afford him no parole. The trial court refused his request and the jury ultimately returned a sentence of death.

On appeal, the United States Supreme Court reversed Simmons's conviction as violative of due process, holding that the State may not "create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole." ⁸ This holding was predicated on the fact that as the jury was contemplating his sentence, Simmons "was legally ineligible for parole and thus would remain in prison if afforded a life sentence." ⁹ That crucial fact is not present in Trice's case: Under Oklahoma law, Trice was not and could not have been parole-ineligible as he faced his sentencing jury. ¹⁰ Accordingly, the due process violation identified in Simmons--committed when the prosecution secured a death sentence at least in part on grounds of Simmons's future dangerousness while at the same time concealing from the jury the fact that he would be parole-ineligible if he received a life sentence--could not have occurred in this case.

Trice's reliance on Simmons is therefore misplaced. The holding in that case is not dispositive of Trice's claim that he should have been allowed to tell his sentencing jurors how many actual years he would spend in prison if they elected to impose consecutive life sentences rather than death. ¹¹ Proposition one is barred as res judicata and will not be reconsidered on the merits.

ISSUES TECHNICALLY WAIVED BUT ULTIMATELY PRESERVED UNDER

RUBRIC OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Trice argues in his second and seventh proposition that his direct appeal attorney was ineffective because, but for unartful presentation, some of the claims counsel raised at that juncture would have warranted relief. These claims are as follows: Trice's confessions to murder and rape should not have been admitted at trial because they were obtained in violation of his State and Federal constitutional rights; the trial court erred in refusing Trice's requested instruction on the defense of intoxication; the trial court erred in admitting prejudicial photographs; prosecutorial misconduct deprived Trice of a fair trial; and, the trial court erred in failing to instruct the jury that if it could not reach a unanimous decision, the trial court would impose a life sentence. These substantive issues are procedurally barred as res judicata. ¹² However, because this is Trice's first opportunity to allege and argue direct appellate counsel's ineffectiveness, we will determine whether Trice's direct appeal attorney's presentation of these issues comported with the Sixth Amendment.

"To prevail on an ineffective assistance of counsel claim, [Trice] must show that his attorneys' performance was deficient and that such deficient performance prejudiced him." ¹³ Assuming Trice were able to show that his direct appeal attorney's performance was deficient, to prove prejudice he would still have to establish a reasonable probability that, but for her unprofessional errors, the result of his direct appeal would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." ¹⁴

In applying the Strickland test to a post-conviction applicant's claim that counsel was ineffective because they unartfully argued an issue on appeal, we have concluded that "an appellate brief meets Sixth Amendment requirements if it presents relevant issues which are supported by facts and authority sufficient to enable this Court to consider them." ¹⁵ It follows that propositions included in an appellate brief are constitutionally adequate if they contain relevant legal arguments which are supported by pertinent facts and legal authority. We have reviewed all five claims which Trice argues were unartfully presented on direct appeal, and find they were adequately and thoroughly argued as well as supported by relevant facts and legal authority.

Post-conviction review does not afford defendants the opportunity to reassert claims in hopes that further argument alone may change the outcome in different proceedings. ¹⁶ Trice's direct appeal attorney's presentation of the issues in question was not deficient, and further argument on post-conviction would not render those issues meritorious. ¹⁷ Propositions two and seven are denied.

In his fifth proposition, Trice additionally claims appellate counsel was ineffective because she failed to raise ineffective assistance of trial counsel on direct appeal and she failed to raise other critical substantive issues on direct appeal. The substantive grounds underlying Trice's ineffectiveness claims are procedurally barred. However, we reiterate that because this is Trice's first chance to test appellate counsel's performance, we will examine these underlying substantive issues "insofar as [they are] dispositive of [Trice's] ineffective assistance of appellate counsel claim[s]." ¹⁸

Trice first argues appellate counsel was ineffective for failing to raise an ineffective assistance of trial counsel claim on direct appeal. In proposition four, Trice sets forth the following ten examples of his trial attorneys' alleged ineffectiveness: (1) they allowed the case to go to trial less than four months after the crime occurred; (2) they failed to investigate, develop and present relevant mitigation evidence during the sentencing phase; (3) they failed to investigate possible defenses at both the guilt/innocence and sentencing stages, and conceded Trice's guilt; (4) they failed to challenge the rape charge; (5) they failed to present an opening statement during the guilt/innocence stage; (6) they failed to support requested jury instructions with relevant authority; (7) they failed to make adequate and proper argument; (8) they waived jury polling after guilty verdict; (9) they failed to challenge...