Wilhoit v. State

• Decision Date: 16 April 1991
• Docket Number: No. F-87-454,F-87-454
• Citation: 816 P.2d 545
• Parties: Gregory Ralph WILHOIT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 545

816 P.2d 545

Gregory Ralph WILHOIT, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-87-454.

Court of Criminal Appeals of Oklahoma.

April 16, 1991.

ORDER

LANE, Presiding Judge.

Appellant was convicted of First Degree Murder, in Case No. CRF-86-8, in the District Court of Osage County, and sentenced to death, from which he has perfected his appeal to this Court, in Case No. F-87-454. On June 16, 1988, appellant filed with this Court a Motion for New Trial on Newly Discovered Evidence and Motion for Evidentiary Hearing Regarding New Evidence and Regarding Effectiveness of Trial Counsel. As per appellant's request, a ruling on this motion was held in abeyance until the defense experts could fully examine the bite-mark evidence. On February 23, 1990, appellant filed with this Court a Motion to Permit Additional Supplementation of Motion for New Trial on Newly Discovered Evidence and Supplementation of Record on Appeal which included the results of the experts' examinations of the bite-mark evidence.

On July 3, 1990, this Court remanded this case back to District Court of Osage County to conduct an evidentiary hearing to determine whether appellant should be afforded a new trial based upon the newly discovered evidence and possible ineffective assistance of counsel. The hearing on this matter was conducted August 28, 30, October 3, 4, and 5, and December 10, 1990, before the Honorable J.R. Pearman, district judge of Osage County. On March 25, 1991, Judge Pearman submitted his Findings of Fact and Conclusions of Law to this Court, which we adopt and incorporate in this matter.

A new trial based upon newly discovered evidence may be granted if the defendant can establish 1) that the evidence is material, 2) that it was not available at the time of trial, or if the evidence was available, the defendant could not, by the exercise of due diligence, have procured the same before trial, 3) that it is not cumulative, and 4) that there is a reasonable probability that the result at trial would have been different. Sheppard v. State, 731 P.2d 989 (Okl.Cr.1987). The district court found that the evidence was material but that appellant's counsel failed to exercise due diligence in procuring the evidence prior to trial. Based upon these findings, the district court found, and we agree, that the Motion for New Trial based upon newly discovered evidence must be denied.

As to appellant's claim that he was denied a fair trial because of ineffective assistance of counsel, he must be able to establish 1) that counsel's assistance was not reasonably effective, and 2) that his deficient performance denied the defendant a fair trial and that but for counsel's deficient performance, the result of the trial could possibly have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). At the evidentiary hearing, there was extensive evidence presented that trial counsel was suffering from alcohol dependence and abuse and brain damage during his representation of appellant. In fact, the Oklahoma Bar Association had found counsel's ability to function as a lawyer was noticeably impaired by alcohol during the time he was representing appellant. Trial counsel even stated in an affidavit that there was no strategic reason for his not pursuing the bite-mark evidence nor for not using a bite-mark expert. This omission is even less excusable in light of the fact that the Wilhoit family had hired a forensic odontologist who was available to examine the bite-mark evidence. Judge Pearman found that because of his failure to investigate the bite-mark evidence, appellant's counsel was deficient and that there is a reasonable probability that the result of the trial would have been different had the defense used an expert. The omission of this evidence cannot be considered a strategic defense tactic.

We find that appellant was denied a fair trial due to ineffective assistance of counsel. We agree with Judge Pearman, as stated in his Conclusions of Law, that "[i]t is imperative that the legal profession allow not even the appearance of misconduct or malpractice." Therefore, appellant's judgment and sentence is REVERSED and REMANDED FOR A NEW TRIAL.

IT IS SO ORDERED.

/s/ James F. Lane

JAMES F. LANE, Presiding Judge

/s/ Gary L. Lumpkin

GARY L. LUMPKIN, Vice Presiding Judge, Specially Concur.

/s/ Tom Brett

TOM BRETT, Judge

/s/ Ed Parks

ED PARKS, Judge

/s/ Charles A. Johnson

CHARLES A. JOHNSON, Judge

APPENDIX

As per your ORDER of July 3, 1990, attached are my Findings of Fact and Conclusions of Law derived from the evidentiary hearing held in this matter on August 28 and 30, October 3, 4 and 5, December 10, 1990.

Dated this 21st day of March, 1991.

s/J.R. PEARMAN

J.R. Pearman

District Judge

FINDINGS OF FACT

1. Dates and events pertinent to this case are:

January 16, 1986--State of Oklahoma filed Information against defendant alleging Murder, 1st degree;

January 30, 1986--Defendant appeared with attorney Pat Thompson; preliminary hearing set for April 15, 1986;

April 15, 1986--Preliminary Hearing continued on defense motion due to defense counsel's hospitalization;

June 19, 1986--Defendant appears for preliminary hearing with Pat Thompson and Larry Gullekson. Part of testimony presented. Preliminary Hearing was continued until July 2, 1986;

July 2, 1986--Defendant appears for preliminary hearing with Pat Thompson and Larry Gullekson--Dr. Keith Montgomery testified regarding bite mark evidence. Dr. Richard Glass was talked to by defense counsel on telephone. Defendant was bound over for district court arraignment to be held on September 3, 1986;

September 3, 1986--District Court Arraignment was passed by agreement of parties to September 17, 1986;

September 17, 1986--District Court arraignment was passed by agreement of parties to October 30, 1986;

October 28, 1986--On defendant's Motion, district court arraignment passed until December 11, 1986;

December 11, 1986--On defendant's Motion, district court arraignment passed until January 13, 1987;

January 29, 1987--Defendant appears for District Court Arraignment with Pat Thompson. Defendant enters plea of not guilty. Jury trial set for May 5, 1987;

March 18, 1987--District Attorney and Defense counsel met with State bite mark experts;

April 9, 1987--Defense counsel, Pat Thompson and Larry Gullekson allowed to withdraw; George Briggs enters appearance;

May 5, 1987--Jury trial begun.

2. The crime committed against the victim Kathryn Wilhoit, was Murder in the first degree beyond all reasonable doubt.

3. The evidence tending to prove that the defendant, Gregory Wilhoit, perpetrated said crime was circumstantial.

4. The most important item of circumstantial evidence tending to prove that the defendant was the perpetrator of said crime was the testimony of Dr. Richard Glass and Dr. Keith Montgomery, rendering their respective opinions concerning the bite mark evidence obtained by investigators and the identity of the person making said mark.

5. Defendant's parents were advised by attorneys Thompson and Gullekson that an expert witness regarding bite mark evidence in favor of the defense was needed, but George Briggs elected not to use such an expert even though he was contacted by one, at the insistence of the Defendant's parents.

6. George Briggs now states that he had no strategical reason for not using a bite mark expert in his defense case.

7. The bite mark evidence was available for inspection by defense experts prior to trial.

8. In spite of the obvious importance of the bite mark evidence, the defense never had the evidence analyzed prior to trial by a defense bite mark expert. Since no defense expert had seen the bite mark evidence, the defense of course did not present any bite mark evidence from a defense expert at trial.

9. The importance of the bite mark evidence was obvious well in advance of trial.

10. Eleven well-recognized forensic odontologists have examined the bite mark evidence and state that the bite mark on Mrs. Wilhoit does not match Mr. Wilhoit's teeth, as shown by affidavits obtained by the defense after trial.

11. Defendant's parents accepted financial responsibility for paying for defendant's attorney fees and costs of defense.

12. Severe personality conflicts developed between defendant and defense counsel, Thompson and Gullekson, such that defendant "fired" his counsel, who then filed their application to withdraw as counsel on April 9, 1987, less than one month prior to the ordered jury trial date.

13. At defendant's request, defense counsel Thompson and Gullekson, were permitted to withdraw as counsel and new defense counsel George Briggs was permitted to enter his appearance.

14. No Motion for Continuance of the jury trial setting was filed by any of defendant's counsel.

15. Defendant had over ten (10) months prior to trial to investigate and develop defense expert testimony.

16. The newly discovered evidence was available to defendant well before trial, possibly as long as ten (10) months.

17. The "newly discovered evidence" alleged by the defendant was of the character which would be used to impeach the testimony of the State's expert witnesses.

18. Defense counsel, George Briggs, had only three weeks from the time he was retained to prepare for trial.

19. Former defense counsel, Gullekson and Thompson were allowed to withdraw as counsel only after affirmations by said counsel that they would assist new counsel, Briggs, to prepare for trial.

20. Defendant, Gregory Wilhoit, was well aware that the jury trial for the charge against him was set for May 5, 1987 and knew that new counsel, whoever that was, would have only three weeks to prepare for trial, yet he insisted that the trial court allow former counsel Gullekson and Thompson to withdraw, and that he be allowed to retain George Briggs.

21. Defense counsel, George Briggs, did call defense witnesses regarding the character and lawfulness of...