Ullery v. State
| Decision Date | 07 October 1999 |
| Docket Number | No. F-97-965.,F-97-965. |
| Citation | 1999 OK CR 36,988 P.2d 332 |
| Parties | Brent Douglas ULLERY, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Debbie Maddox, Robert G. Perrine, Capital Trials Division Indigent Defense System, Norman, Oklahoma, Attorneys For Defendant at Trial.
Tim Kuykendall, District Attorney, R. Richard Sitzman, Assistant District Attorney, Norman, Oklahoma, Attorneys For The State at Trial.
Lee Ann Peters, Indigent Defense System, Norman, Oklahoma, Attorney for Appellant on Appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer B. Miller, Assistant Attorney General, Oklahoma City, Oklahoma, Attorneys For Appellee on Appeal. CHAPEL, Judge:
¶ 1 Brent Douglas Ullery was tried by jury and convicted of Murder in the First Degree in violation of 21 O.S.1991, § 701.7, in the District Court of Cleveland County, Case No. CF-93-496. The jury found that the murder was especially heinous, atrocious or cruel. In accordance with the jury's recommendation the Honorable William C. Hetherington, Jr. sentenced Ullery to death. Ullery appeals from this conviction and sentence. After a thorough review of the record, we affirm Ullery's conviction. However, we have determined the sentence must be modified to life without the possibility of parole.
¶ 2 On March 24, 1993, Ullery went to Nancy Neal's Norman home to test drive her Mazda sports car, which she had advertised for sale. After they returned to the house, Ullery sprayed Mace in Neal's face. She ran for the door, but Ullery grabbed her and dragged her into the kitchen. As she screamed, he threw her on the ground and began kicking her head. When she continued to scream and struggle, he stabbed her five times in the back of the neck. He wiped the knife blade off, disabled the kitchen telephone, took the car keys, and drove the car to his Norman apartment. There he picked up his packed belongings and left. Ullery spent the night near Stillwater and drove northwest. He was stopped in Colorado after committing an armed robbery and shooting at a police officer. He confessed to Colorado and Oklahoma officers. He was committed for several months and tried in Colorado before being returned to Oklahoma for trial on the murder charge.
¶ 3 Ullery admitted he stabbed Neal but raised an insanity defense. Evidence at trial showed he suffers from schizoaffective disorder, a brain disorder characterized by major depression and psychotic symptoms, including delusions and hallucinations. This disease manifested itself when Ullery was still in high school. A genius, Ullery attended the Oklahoma School of Science and Mathematics. He concentrated in physics and was a brilliant student. His teachers and classmates agreed he had the potential for a remarkable academic future. Between Ullery's junior and senior years of high school his best friend and roommate was killed in a car accident. In the months thereafter Ullery became visibly depressed. He complained to friends of hearing voices and began listening to music constantly in an effort to minimize those hallucinations. More than once friends saw him cut his arms. He told them he sometimes had to see blood and feel pain to know he was in reality. Although Ullery's school performance dropped dramatically he was accepted at both MIT and CalTech. However, he was unable to afford either university and enrolled at OU for the fall 1992 term on full scholarship. His school and social performance continued to deteriorate. That autumn he began seeing a mental health counselor at Goddard Health Center. She arranged for the university to allow Ullery to move out of the dormitories and in January, 1993, he moved to an apartment. Ullery stopped attending classes in January or February of 1993. His girlfriend, a student in California, broke up with him. The Goddard staff diagnosed him as moving into a major depression and prescribed Prozac (which he took only briefly). Ullery spoke to friends about his fear that he could not control himself, mentioned his hallucinations, and continued to cut his arms.
¶ 4 On February 11, 1993, Ullery told his counselor that he might kill himself or someone else, confirmed that he had a plan but would not disclose it, and refused to sign a contract stating that he would not harm himself or others. Alarmed, the counselor made some efforts to have Ullery temporarily committed under an emergency order of detention, but these failed. A supervising director at Goddard told Ullery's mother that he was a danger to himself or others and they could not treat him as an outpatient, and urged her to have him committed. She explored other treatment options. Ullery was alarmed at the thought that police might come to lock him up and determined to resist. He bought two shotguns and a knife, then went to a final counseling session where he confronted his counselor and said he was afraid the police would be after him. Thereafter he continued to deteriorate. He seldom slept, and his roommate did not see him between February and the time of the murder.
¶ 5 According to his own account and medical testimony, Ullery's hallucinations included voices talking and a man appearing to him; all these apparitions told him bad things about himself and suggested he do bad things to others. His delusions included a belief that police would lock him up in a snake pit from which he would never emerge; that he was doomed if he stayed in Oklahoma, which was somehow responsible for his difficulties; that there was something sinister about and wrong with the red dirt in Oklahoma; that he had to escape; and that he had to die. He was unable to carry out any plans to kill himself, and decided to commit a crime that would force someone else to kill him or put him in a position where he had no choice but to commit suicide. He jotted notes apparently planning several types of robbery and wrote an apologetic document leaving his possessions to friends and family. He decided he had to steal a car and leave the state. Acting on this, he called Neal and arranged to see her car. He took the knife with him in case the Mace did not stop Neal from calling for help.
PRETRIAL ISSUES
¶ 6 In his first proposition Ullery claims his conviction must be reversed and the charge of murder dismissed because the trial was not commenced within the time constraints of the Interstate Agreement on Detainers Act [IADA].1 Ullery was arrested in Colorado in March 1993. On March 21, 1996, the State of Oklahoma filed a request for temporary custody under Article IV of the IADA. On June 20, 1996, Ullery filed a request for final disposition under Article IV of the IADA, which prosecutors and the Oklahoma court received on June 29. Ullery arrived in Oklahoma on July 16, 1996, and his trial began April 7, 1997. Ullery now alleges he was not brought to trial within 120 days, the time allotted under an Article III disposition, or 180 days, the time allotted under an Article IV disposition. He urges this Court to find Article III governs, find he was not timely tried, and apply the statutory remedy of dismissal.
¶ 7 Ullery raised this issue for the first time after the verdicts were rendered. In a special hearing on his motion to vacate the verdicts and dismiss the case, counsel apologized for not raising the issue sooner. We have held that for IADA purposes a trial commences when jury selection begins.2 The State argues Ullery waived his rights under the IADA when he failed to raise his claim before trial began. In Rackley v. State3 we found the IADA did not apply, but stated in dicta that Rackley had apparently waived his IADA claim when he went to trial without challenging the transfer from federal to state custody. Ullery cites Gallimore v. State4 to support his argument that this issue is jurisdictional and cannot be waived. However, in finding the IADA was violated, Gallimore did not discuss subject matter jurisdiction and noted Gallimore had not waived his IADA rights.5 Ullery also claims, should we find he waived his IADA rights, that counsel was ineffective for failing to make this claim before trial. Given the importance of this issue of first impression, we choose not to rely on dicta or avoid the issue by finding waiver. Despite indications that Ullery may have waived his claim we will address this issue.6 We find the IADA was not violated and counsel was consequently not ineffective for failing to raise a timely IADA claim.
¶ 8 This case presents an issue of first impression for this Court: when both the State and the defendant initiate transfer under the IADA, which time limit should apply? Which Article governs? The IADA is a uniform act adopted to encourage the "expeditious and orderly disposition" of untried charges pending against prisoners in other states.7 The IADA is remedial in nature and should be liberally construed in the defendant's favor.8 Under Article IV, when a state initiates a request for temporary custody the trial must begin no later than 120 days from the date the defendant arrives in that jurisdiction.9 Under Article III, when a defendant requests a final disposition of retainer the time limit is 180 days from the date of receipt of the prisoner's request.10
¶ 9 Nationwide, courts have taken three different approaches to this problem. The State urges us to follow the few jurisdictions holding that where the defendant initiates Article III proceedings he invariably waives his Article IV rights (including the shorter time limit).11 These cases determine that, as Article IV procedures and Article III procedures are inconsistent, an Article III filing automatically waives those Article IV procedures favorable to the defendant. Other jurisdictions reject this approach and hold the determining factor is which party first initiates IADA procedures.12 Finally, several jurisdictions apply both Articles when both parties initiate IADA procedures and look to see which,...
To continue reading
Request your trial
-
Hooks v. State, D-98-1231.
...983 P.2d at 510; Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674, 693 (1984). 59. Ullery v. State, 1999 OK CR 36, 988 P.2d 332, 351; Hooper, 947 P.2d at 1111. 60. Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). 61. Le, 947 P.2d ......
-
Browning v. State
...125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005); Wiggins, 539 U.S. at 521, 123 S.Ct. at 2527. 25. Hooks, 19 P.3d at 317; Ullery v. State, 1999 OK CR 36, 988 P.2d 332, 351. 26. Williams v. Taylor, 529 U.S. 362, 394, 120 S.Ct. 1495, 1513-1514, 146 L.Ed.2d 389 27. Hooks, 19 P.3d at 317. 28. Rompi......
-
State v. Adams
...means" prosecutions in Wyoming, see Bloomquist v. State, 914 P.2d 812, 819 (Wyo.1996), and Oklahoma, see Ullery v. State, 1999 OK CR 36, 988 P.2d 332, ¶ 32, fn.48 ("In the absence of any underlying felony convictions, this Court will support a general verdict of murder only where 45 N.E.3d ......
-
Hain v. Gibson
...on an insanity defense,6 which, under Oklahoma law, is applicable to both malice aforethought and felony murder. See Ullery v. State, 988 P.2d 332, 351 (Okla.Crim.App.1999). Third, our review of the record leads us to conclude the evidence presented at trial was more than sufficient to supp......