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Bobby Joe FIELDS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery - Drugs
Number of victims: 1
Date of murder: March 2, 1993
Date of arrest: 2 days after
Date of birth: November 18, 1963
Victim profile: Louise J. Schem (female, 77)
Method of murder: Shooting
Location: Oklahoma City, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on February 13, 2003
 
 
 
 
 
 

Summary:

Thinking the elderly homeowner was not at home and seeking money to support a drug habit, Fields decided to burglarize the home of his girlfriend's neighbor.

He opened the screen door, pushed open the front door, crossed the living room to the television and reached to unplug it.

At that moment, the 77 year old homeowner Louise J. Schem entered the room carrying her .25 semi-automatic pistol.

A struggle ensued as the two of them wrestled to control the gun. Despite the fact that Schrem was elderly and only 5' 4" tall, and 114 pounds, their struggle was protracted: it began in the living room, spilled out the front door and down the steps, and ended on the sidewalk in front of Schem's house.

Robert Vallejo happened to be driving by and saw the final seconds of the altercation. He testified that he saw them struggling on the sidewalk, heard Schem cry "Help! Help!", heard a gunshot, and watched Schem fall to the sidewalk.

Fields later admitted that he broke into the home, but that he was protecting himself when he struggled with the woman and the gun went off accidentally. Fields pled guilty to First Degree Murder expecting a sentence of Life Without Parole, but was sentenced to death.

Citations:

Fields v. State, 923 P.2d 624 (Okl.Cr. 1996). (Direct Appeal)
Fields v. State, 946 P.2d 266 (Okl.Cr. 1997). (PCR)

Final Meal:

Fried catfish with hot sauce.

Final Words:

"Stay strong. You all keep fighting." Fields also asked his cousins to take care of his son and told his sister: "Baby girl, stay strong and hold the family together. I love you all. Let's get this out of the way."

ClarkProsecutor.org


Oklahoma Department of Corrections

Inmate: Bobby Jo Fields
ODOC# 141478
Race: Black
Sex: Male
Height: 5 ft. 07 in
Weight: 140 pounds
Hair: Black
Eyes: Brown
Location: Oklahoma State Penitentiary, Mcalester

 
 

Oklahoma Attorney General News Release

News Release - W.A. Drew Edmondson, Attorney General - 11/14/02

Execution Date Set for Fields

The Oklahoma Court of Criminal Appeals today set Jan. 14, 2003, as the execution date for death row inmate Bobby Joe Fields. Attorney General Drew Edmondson requested the date yesterday after the United States Supreme Court denied Fields's final appeal.

Fields was convicted in Oklahoma County District Court of the March 2, 1993, murder of Louise J. Schem. Fields shot Schem,77, when she confronted him with a gun during an attempted burglary at her Oklahoma City home. Fields pled guilty to first degree murder and was sentenced to death March 29, 1994.

Oklahoma has executed four inmates this year. There are currently three executions scheduled for this year. Jerry Lynn McCracken, Tulsa County is scheduled to be executed Dec. 10. Jay Wesley Neil, Comanche County, is scheduled to be executed Dec. 12. Ernest Marvin Carter, Jr., Oklahoma County, is scheduled to be executed Dec. 17. Edmondson has also requested an execution date for Daniel Juan Revilla, who was sentenced to death Oct. 29, 1987, for the murder of a 13-month-old boy.

 
 

ProDeathPenalty.com

Bobby Joe Fields pleaded guilty in 1994 to the 1983 murder of 77-year-old Louise Schem in Oklahoma County. Fields was burglarizing Schem's home for money to support his drug habit when she confronted him, prosecutors say. Fields shot her to death.

On March 1, 1993, Shirley Masterson, Bobby Joe Fields's girlfriend, invited Fields to party at her duplex. Masterson's AFDC check had arrived and she planned on using the money to buy alcohol and cocaine. Shawanda and Yolanda Pittman, Masterson's grown daughters, and Dia Russell, Shawanda and Yolanda's friend, were partying with Masterson and Fields.

The party continued the next day, March 2, 1993. Sometime around noon, Fields walked two doors down to Louise Schem's house ostensibly to ask if he could do yard work for her. She declined. In the mid- to late-afternoon, Fields went to the upstairs-half of Masterson's duplex to ask Albert Anuario if he wanted to buy a television and VCR for $70. Anuario, who had also been drinking, replied that he was interested but that he did not have enough money. Fields decided to steal Schem's television and sell it to buy more cocaine.

Around 5 p.m., he again walked down the block to carry out the robbery, he thought Schem was not at home. He opened the screen door, pushed open the front door, crossed the living room to the television (which was on), and reached to unplug it. At that moment, Schem entered the room carrying her .25 semi-automatic pistol.

A struggle ensued as the two of them wrestled to control the gun. Despite the fact that, at the time, Fields was thirty years-old, 5' 7" tall, and weighed 140 pounds while Schem was elderly, 5' 4" tall, and 114 pounds, their struggle was protracted: it began in the living room, spilled out the front door and down the steps, and ended on the sidewalk in front of Schem's house. Robert Vallejo happened to be driving by and saw the final seconds of the altercation. He testified that he saw them struggling on the sidewalk, heard Schem cry "Help! Help!", heard a gunshot, and watched Schem fall to the sidewalk.

The government's medical examiner testified that the bullet had a flat trajectory ­ it entered the back, left-side of Schem's neck, beneath her left ear, passed through her spinal cord and the back of her mouth, and exited her mouth, fracturing two of her incisor teeth.

The gunpowder residue on the back of her neck indicated that the shot was fired from six to twelve inches. Vallejo drove away a short distance, made a U-turn, and returned to the scene. Fields had fled, but he returned to Masterson's house thirty to forty minutes later. As he walked in Masterson's back door, the pistol went off.

Dia Russell testified that Fields looked hysterical he was talking fast and breathing heavily. Perhaps half an hour after returning to Masterson's house, he went upstairs and sold the gun to Anuario for $40. Shortly after the police and medical personnel started arriving at Schem's house, Russell took Masterson and Fields to Fields's sister's house.

Russell testified that during the drive Fields said that "he didn't have any kind of remorse or guilt" and "he wouldn't lose any sleep" because "white people deserve what they got." In addition, she testified that later, while they were watching a news story of how the police had arrested a different black man for the murder, he said that he was "relieved" that he might not get caught and that "he had thought about being on the television show America's Most Wanted."

Two days after the murder, on March 4, 1993, Fields was arrested and interrogated. He told the police that, thinking Schem was not home, he went to her house to steal her television. When she surprised him with a gun, he jumped at her in self-defense, and they wrestled over the weapon. The struggle spilled out onto the sidewalk, where he pulled the gun from her hands. As he did so, it went off accidentally, killing her.


National Coalition to Abolish The Death Penalty

Henry denies Clemency in Fields case

Feb. 10, 2003

Gov. Brad Henry rejected a clemency recommendation Monday for Bobby Joe Fields, whose execution is scheduled this week for killing an Oklahoma City woman. After reviewing the record and information presented at Fields' clemency hearing, "I have determined that clemency should be denied in this case," Henry wrote in a letter to Stephanie Chappelle, chairwoman of the Pardon and Parole Board. Fields is scheduled to be executed Thursday evening.

The board had voted 3-1 on Jan. 6 to recommend that clemency be granted Fields and that his sentence be commuted to life without parole.

The next day, outgoing Gov. Frank Keating granted a stay to allow time for Henry, who was inaugurated Jan. 13, to review the case and make the decision on whether Fields should be executed. Since that time, Henry said he had looked at arguments and evidence and met with prosecutors and attorneys for Fields. "Both sides were given the opportunity to submit information and make arguments both to me personally and to my legal staff," he said.

Press secretary Kym Koch said Henry, an attorney, viewed Fields' clemency hearing on videotape and asked "a lot of questions" of attorneys. "It was a difficult decision," Koch said. "He looked at the history of all the appeals court decisions in the case and saw no court sentiment that the conviction should be overturned."

It was the fifth time during Keating's eight years in office that the board had recommended clemency for a condemned killer. Keating turned down the recommendation three times. He granted clemency for Phillip Dewitt Smith in March 2001. During Keating's tenure, 50 people were executed, more than under any Oklahoma governor.

Fields, 39, pleaded guilty in 1994 and was sentenced to die for the 1993 killing of Louise Schem, 77, at her Oklahoma City home. Prosecutors contended Fields took a .25 caliber weapon away from the woman and shot her after she caught him stealing a television set. Defense attorneys argued the weapon accidentally discharged during a struggle.

Attorney General Drew Edmondson said Henry made the correct decision, saying no evidence was presented to justify the parole board's clemency recommendation. "I appreciate the governor's careful consideration of this issue and see nothing that should stand in the way of this sentence being carried out," Edmondson said. (source: The Oklahoman)


Oklahoma Execution Alert

Bobby Joe Fields (OK) - February 13, 2003

The state of Oklahoma is scheduled to execute Bobby Joe Fields Feb. 13 for the 1993 murder of Louise Schem. Fields, a black man, allegedly shot the 77-year-old woman in Oklahoma County while burglarizing her home. Although the crime – a felony murder – warrants severe punishment from the state, the death penalty is entirely inappropriate in this instance.

Fields would be serving a life without parole sentence if he had the resources to afford quality legal representation; instead, he unknowingly pled for a death sentence, and is now awaiting execution.

On Jan. 6, the Oklahoma Pardon and Parole Board recommended clemency for Fields by a vote of 3-1. Former Gov. Frank Keating granted a 30-day reprieve in light of the board’s action, handing the case to Gov. Brad Henry, who took over the statehouse Jan. 13. Henry, inexperienced in reviewing death penalty cases from this perspective, should accept the board’s recommendation and commute the sentence immediately.

The board voted for clemency for a multitude of reasons, not the least of which was Fields’ peculiar route to death row. On advice from his state-appointed defense lawyer, who was completely inexperienced in death penalty cases, Fields entered a blind plea in February 1994 under the assumption that this action would eliminate the possibility of a death sentence. This strategy backfired, and the court sentenced him to death shortly thereafter.

Questions surrounding the circumstances of the plea remain unanswered, and Fields maintains his plea was not entirely voluntary. He never went to trial and never stood before a jury; now, he has less than one month before his scheduled execution date.

So far, the appellate courts have ignored the obvious legal errors in Fields’ case; both the Oklahoma Court of Criminal Appeals and the 10th Circuit U.S. Court of Appeals unanimously affirmed his death sentence. However, on November 18, the U.S. Supreme Court announced its decision to reconsider the guidelines for ineffective assistance of counsel appeals in the case of Maryland’s Kevin Wiggins.

The threshold for such claims is currently based on Strickland v. Washington – the landmark 1984 decision that determined what constitutes ineffective assistance of counsel. Considering the fact that poor legal advice essentially fast-tracked Fields to a death sentence, he has a legitimate argument in this regard.

Beyond the strange legal history of this case, Fields’ case contains has several mitigating factors that warrant clemency regardless of the ineffective counsel argument. He has a dreadful history of substance abuse problems, and his addiction to crack cocaine undoubtedly sparked the Schem murder. As the state held, he shot the elderly woman while attempting to rob her for money to buy more drugs.

Unlike some jurisdictions, the Oklahoma statehouse has limited power in the death penalty process. The governor can only intervene if the Pardon and Parole Board gives him a favorable recommendation, which renders his opinion useless in most cases. However, when 3 of the 5 members of the board recommend clemency to the governor, as is the case with Fields, he has the power to commute the sentence. Please write Gov. Brad Henry and encourage him to respect the board’s decision and grant clemency to Bobby Joe Fields.

 
 

Man Executed in 1993 Slaying of City Woman

By Clayton Bellamy - Daily Oklahoman

AP February 14, 2003

McALESTER -- Bobby Joe Fields died Thursday for the 1993 fatal shooting of a 77-year- old Oklahoma City woman, executed despite a clemency recommendation from the state parole board. Fields died at 6:05 p.m., three minutes after receiving a lethal dose of drugs at the Oklahoma State Penitentiary in McAlester for killing Louise J. Schem during a burglary March 2, 1993.

Fields smiled at his sister, Geraldine Banks, and his cousin, then told his two attorneys witnessing the execution to "stay strong. You all keep fighting." "Cousin, if you can, try to look after my boy," Fields said of his estranged son during his final statement. Then to Banks: "Baby girl, stay strong and hold the family together. I love you all." Banks wept and buried her face into her handkerchief as Fields' eyes slowly closed and his head jerked slightly before he became still.

No one on Schem's behalf watched Fields, 39, become the second inmate executed in Oklahoma this year and the 140th in the state's history.

Fields' execution came despite the Oklahoma Pardon and Parole Board's Jan. 6 recommendation that his sentence be commuted to life in prison. Gov. Brad Henry, in his first death penalty review, denied clemency. Fields was to be executed Jan. 14, but former Gov. Frank Keating issued a 30-day reprieve to give Henry time to consider the clemency recommendation. "Bobby Joe Fields was properly convicted and sentenced," Attorney General Drew Edmondson said. "His appeals have been exhausted and the governor has rightfully denied clemency. It is time the execution is carried out."

Fields' attorneys argued during the clemency hearing that Fields should be spared because he had no advance intention of killing Schem. The board voted 3-1 in favor of clemency, with one abstention. "I understand how the governor has made his decision, but my initial review was that that was not his (Fields') intent, to cause bodily harm," said parole board Chairwoman Stephanie Chappelle, who voted for clemency. But parole board member Susan Bussey, who voted against clemency, said there was nothing presented during the hearing that warranted commuting Fields' sentence.

After a night of drinking and using cocaine, Fields broke into Schem's Oklahoma City house to steal her television, when she walked in with a gun, court records say. Fields and Schem scuffled over the weapon, spilling out onto the sidewalk where Fields shot Schem in the back of the neck as she tried to flee, records say.

Fields and his first attorney, a public defender, expected an Oklahoma County judge to give him life in prison without parole when he pleaded guilty to first-degree murder in 1994. But Judge James L. Gullett ordered capital punishment after the sentencing hearing. The attorney, Catherine Burton, who's now in private practice, was too upset about Fields' execution to comment, her secretary said.

Fields dined on $15 worth of fried catfish with hot sauce just before 1 p.m. Thursday as he waited for his execution. The state limits final meals to $15.


Man Who Killed Elderly Woman in Burglary Executed in Oklahoma

TheDeathHouse.com

McALESTER, Okla. - A man who murdered an elderly woman because he wanted to steal her television was executed by lethal injection at the state prison here Thursday night. Bobby Joe Fields, 39, became the second condemned killer to be executed by the state in 2003.

Fields was convicted of the 1993 murder of Louise Schem, in Oklahoma City. Prosecutors said Fields broke into the victim's home to steal her television. However, Schem had a gun and, during a struggle, Fields took the gun away from the victim and shot her, prosecutors said. Fields, who had pleaded guilty to the murder expecting to receive life in prison instead of a death sentence from a judge, requested and received fried catfish for his last meal. He was pronounced dead at 6:05 p.m. from the lethal combination of chemcials injected into his body.

The Oklahoma Pardon and Parole Board had voted 3-1 to recommend that Fields’ death sentence be commuted to life in prison, but Gov. Brad Henry rejected any mercy, clearing the way for Fields to die. Fields was originally scheduled to die on Jan. 14, but outgoing Gov. Frank Keating, saying he didn’t have enough time to review the pardons panel recommendation, postponed the execution so Henry could make the decision. Fields had broken into Schem's apartment after a night of drug and alcohol use. Fields' lawyers said the shooting was an accident during the struggle over the gun.


PrisonActivist.org

TAKE ACTION NOW !
BOBBY JOE FIELDS
Scheduled Execution Date: Jan. 14, 2003
Oklahoma NCADP - Execution Alert Bobby Joe Fields

The state of Oklahoma is scheduled to execute Bobby Joe Fields January 14 for the 1993 murder of Louise Schem. Fields, a black man, allegedly shot the 77 -year-old woman in Oklahoma County while burglarizing her home. Although the crime - a felony murder - warrants severe punishment from the state, the death penalty is entirely inappropriate in this instance. Fields would be serving a life without parole sentence if he had the resources to afford quality legal representation; instead, he unknowingly pled for a death sentence, and is now awaiting execution.

Struggles with ineffective counsel have plagued this young man's journey through the justice system. On advice from his state-appointed defense lawyer, who was completely inexperienced in death penalty cases, Fields entered a blind plea in February 1994 under the assumption that this action would eliminate the possibility of a death sentence.

This strategy backfired, and the court sentenced him to death shortly thereafter. Questions surrounding t he circumstances of the plea remain unanswered, and Fields maintains it was not entirely voluntary. He never went to trial and never sat before a jury; now, he has less than one month before his scheduled execution date.

So far, the appellate courts have ignored the obvious legal errors in Fields' case; both the Oklahoma Court of Criminal Appeals and the 10th C ircuit U.S. Court of Appeals unanimously affirmed his death sentence. However, on November 18, the U.S. Supreme Court announced its decision to reconsider the guidelines for ineffective assistance of counsel appeals in the ca se of Maryland's Kevin Wiggins. The threshold for such claims is currently based on Strickland v. Washington - the landmark 1984 decision that determined what constitutes ineffective assistance of counsel. Considering the fact that poor legal advice essentially fast-tracked Fields to a death sentence, he has a legitimate argument in this regard.

Beyond the strange legal history of this case, Fields' case contains severa l mitigating factors that warrant clemency regardless of the success of his appeals. He has a dreadful history of substance abuse problems, and his addiction to crack cocaine undoubtedly sparked the Schem murder. As the state held, he shot the elderly woman while attempting to rob her for money to buy more drugs. If the courts refuse his final appeals, the Oklahoma Pardon and Parole Board should recommend a commutation of this sentence in its report to the governor.

Unlike some jurisdictions, the Oklahoma statehouse has limited power in the death penalty process. The governor can only intervene if the Pardon and Parole Board gives him a favorable recommendation, which renders his opinion useless in most cases.

However, if 3 of the 5 members of the board recomme nd clemency to the governor, he has the power to commute the sentence. Gov. Frank Keating, a staunch death penalty proponent, will be leaving offi ce Jan. 13. Over the years, Keating has repeatedly ignored the Pardon and P arole Board's recommendations and sent dozens of inmates to the death chamber.

The incoming governor, Brad Henry, should examine Oklahoma's use of capital punishment and use his executive power more wisely if given the opportunity. Fields will go before the Pardon and Parole Board Jan. 6, 2003, which will likely determine the status of his pending execution. Please write the state of Oklahoma and request a commutation of his death sentence.


Fields v. State, 923 P.2d 624 (Okl.Cr. 1996). (Direct Appeal)

Defendant was convicted, pursuant to blind guilty plea, in the District Court, Oklahoma County, James L. Gullett, J., of first-degree felony murder, and was sentenced to death. Defendant filed petition for writ of certiorari, appealing denial of his motion to withdraw plea and requesting mandatory death sentence review. The Court of Criminal Appeals, Lane, J., held that: (1) defendant's plea was voluntary; (2) defendant was not entitled to withdraw plea; (3) defendant was not denied effective assistance of counsel; and (4) evidence supported aggravating factors found by sentencing judge. Affirmed. Lumpkin, P.J., concurred in result.

Bobby Joe Fields, Petitioner, entered a blind plea to the charge of First Degree Felony Murder in Case No. CF-93-1352 in the District Court of Oklahoma County before the Honorable James L. Gullett, District Judge. Appellant was convicted of First Degree Murder and sentenced to death, upon the trial court's finding that the murder was committed to avoid or prevent lawful arrest or prosecution, that Petitioner was previously convicted of a felony involving the use or threat of violence to the person and that Petitioner constituted a continuing threat to *627 society. Petitioner was sentenced to death. The Judgment of the trial court is AFFIRMED.

OPINION DENYING WRIT OF CERTIORARI

LANE, Judge:

On February 7, 1994, Petitioner, Bobby Joe Fields, entered a blind plea to a First Degree Felony Murder charge in the District Court of Oklahoma County, Case Number CF-93-1352, before the Honorable James L. Gullett, District Judge. The State had filed a Bill of Particulars alleging the presence of three aggravating circumstances: that the crime was committed to avoid or prevent lawful arrest or prosecution; that Petitioner was previously convicted of a felony involving the use or threat of violence to the person; and that Petitioner constituted a continuing threat to society. A sentencing hearing was conducted March 28-29, 1994. On April 7, 1994, the trial court formally sentenced Petitioner to death, finding that the State had sufficiently proven the existence of all three aggravators.

On April 15, 1994, Petitioner timely filed his motion to withdraw plea. On May 13, 1994, a hearing was held and the motion was denied. On November 14, 1994, Petitioner filed his Petition for Writ of Certiorari appealing the denial of his motion to withdraw, and requesting mandatory death sentence review.


Oklahoma Court of Criminal Appeals

1996 OK CR 35
923 P.2d 624

Case Number: C-94-414

Decided: 07/31/1996

Bobby Joe FIELDS, Petitioner,
v.
STATE of Oklahoma, Respondent.

[923 P.2d 626]
An Appeal from the District Court of Oklahoma County; before the Honorable James L. Gullett, District Judge.

Bobby Joe Fields, Petitioner, entered a blind plea to the charge of First Degree Felony Murder in Case No. CF-93-1352 in the District Court of Oklahoma County before the Honorable James L. Gullett, District Judge. Appellant was convicted of First Degree Murder and sentenced to death, upon the trial court's finding that the murder was committed to avoid or prevent lawful arrest or prosecution, that Petitioner was previously convicted of a felony involving the use or threat of violence to the person and that Petitioner constituted a continuing threat to [923 P.2d 627] society. Petitioner was sentenced to death. The Judgment of the trial court is AFFIRMED.

Catherine Burton, Timothy Wilson, Assistant Public Defenders, Oklahoma City, for Petitioner at trial.

Robert H. Macy, District Attorney, Steve Deutsch, Assistant District Attorney, Oklahoma City, for the State at trial.

Wendell B. Sutton, Assistant Public Defender, Oklahoma City, for Petitioner on appeal.

W.A. Drew Edmondson, Attorney General, William H. Humes, Assistant Attorney General, Oklahoma City, for the State on appeal.

OPINION DENYING WRIT OF CERTIORARI

LANE, Judge:

¶1 On February 7, 1994, Petitioner, Bobby Joe Fields, entered a blind plea to a First Degree Felony Murder charge in the District Court of Oklahoma County, Case Number CF-93-1352, before the Honorable James L. Gullett, District Judge. The State had filed a Bill of Particulars alleging the presence of three aggravating circumstances: that the crime was committed to avoid or prevent lawful arrest or prosecution; that Petitioner was previously convicted of a felony involving the use or threat of violence to the person; and that Petitioner constituted a continuing threat to society. A sentencing hearing was conducted March 28-29, 1994. On April 7, 1994, the trial court formally sentenced Petitioner to death, finding that the State had sufficiently proven the existence of all three aggravators.

¶2 On April 15, 1994, Petitioner timely filed his motion to withdraw plea. On May 13, 1994, a hearing was held and the motion was denied. On November 14, 1994, Petitioner filed his Petition for Writ of Certiorari appealing the denial of his motion to withdraw, and requesting mandatory death sentence review.

¶3 Petitioner raises the following propositions of error1 in support of his writ:

¶4 I. The District Court lacked subject-matter jurisdiction to accept Petitioner's guilty plea because the Information failed to state facts to allege each element of First Degree Burglary Felony Murder;

¶5 II. Petitioner did not "knowingly" enter his blind plea of guilty;

¶6 III. The blind plea of guilty entered by Petitioner was a product of improper or undue influence, persuasion, fear, duress or coercion, and was thus not "voluntary";

¶7 IV. Petitioner had viable defenses which should be presented to a jury;

¶8 V. Petitioner was denied effective assistance of counsel as guaranteed by the state and federal constitutions;

¶9 VI. The evidence was insufficient to support the sentencer's finding that the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution;

¶10 VII. The evidence presented was insufficient to support the finding that Petitioner was previously convicted of a felony involving the use or threat of violence to the person;

¶11 VIII. The evidence presented was insufficient to support the finding of a probability that Petitioner would commit criminal acts of violence that would constitute a continuing threat to society;

¶12 IX. The "continuing threat", "avoiding arrest" and "prior violent felony" aggravating circumstances are invalid because they are being applied in an unconstitutionally vague and overbroad manner;

¶13 X. Petitioner was denied a reliable sentencing trial to the extent the sentencing judge relied upon the same evidence to support the "prior violent felony" and "continuing threat" aggravating circumstances;

¶14 XI. One or more mitigating circumstances outweighed any or all of the remaining valid aggravating circumstances;

[923 P.2d 628] ¶15 XII. The death penalty is excessive and disproportionate in this case considering both the crime and the defendant;

¶16 XIII. The sentencer erred in failing to weigh mitigating circumstances collectively against each of the aggravating circumstances separately under 21 O.S.1991, § 701.11;

¶17 XIV. The accumulation of errors in this case so infected the proceedings with unfairness as to deny Petitioner due process of law; and,

¶18 XV. If Petitioner's death sentence is vacated, he is entitled to a remand for jury sentencing.

FACTS

¶19 Petitioner is an admitted cocaine addict. On March 2, 1993, Petitioner, his girlfriend and her two adult daughters had already exhausted their combined March AFDC (Aid for Families with Dependent Children) money on crack cocaine. In an effort to procure funds for more crack, Petitioner asked a neighbor if he would like to purchase a T.V. and V.C.R. for $70. The neighbor was interested but did not have the funds to purchase the items. Likewise, Petitioner did not have either a T.V. or a V.C.R. to sell. Petitioner left the neighbor's house, telling the neighbor he would return shortly.

¶20 From the neighbor's house Petitioner went down the block to Louise Schem's house to burglarize it, thinking she was not at home. Schem knew Petitioner from the neighborhood. He had been to her house earlier in the day asking for work. Petitioner was hoping he could steal Schem's T.V. and V.C.R. Unfortunately, while in the process of burglarizing the victim's house, she emerged from a bedroom and confronted Petitioner with a gun. The two wrestled each other for the gun, out onto the front porch of the house and down the steps. A passerby heard the victim yell for help, and stopped his car. The witness heard a gunshot and saw Schem fall, but was unable to identify Petitioner as the shooter. After shooting Schem, Petitioner took the gun from her and sold it to the neighbor for $40 instead of selling him the promised T.V. and V.C.R. Petitioner then purchased more crack cocaine with the money. He was arrested several hours later at his girlfriend's house.

¶21 Petitioner admitted killing Schem, but claimed it was accidental. Petitioner alleged the victim's finger was on the trigger when the gun discharged.

¶22 Testimony from the medical examiner was that the gunshot wound entered behind the victim's ear, with a straight line trajectory, and exited out of her mouth, severing her spinal cord in the process. He also testified the wound was not a contact wound and the gun was at least 6 to 12 inches away from the victim when it was fired. The only witness to the crime, while unable to identify Petitioner as the shooter, testified the shooter looked at him (the witness), looked back at the victim, and then fired the gun.

¶23 There was additional testimony Petitioner claimed he was not sorry for the killing; that "white people deserved it" (Petitioner is black, the victim white); and that he wanted to be on "America's Most Wanted". Petitioner also admitted to having smoked crack cocaine the day of the killing.

¶24 Petitioner alleges at Proposition I that the District Court lacked subject matter jurisdiction to accept his guilty plea, because the Information failed to state the facts necessary to allege each of the elements of the underlying felony to support the felony murder Information. The Amended Information in this case read, in pertinent part, as follows:

On or about the 2nd day of March, 1993, A.D., the crime of Murder in the First Degree was feloniously committed in Oklahoma County, Oklahoma, by Bobby Joe Fields, who while in the commission of Burglary in the First Degree, willfully and unlawfully killed Louise Schen (sic) by shooting her with a pistol, inflicting mortal wounds which caused her death on the 2nd day of March, 1993, contrary to the provisions of Section 701.7 of Title 21 of the Oklahoma Statutes, and against the peace and dignity of the State of Oklahoma;

[923 P.2d 629] OR IN THE ALTERNATIVE

On or about the 2nd day of March, 1993, AD., the crime of Murder in the First Degree was feloniously committed in Oklahoma County, Oklahoma, by Bobby Joe Fields, who wilfully, unlawfully and with malice aforethought, killed Louise Schen (sic) by shooting her with a pistol, inflicting mortal wounds which caused her death on the 2nd day of March, 1993, contrary to the provisions of Section 701.7 of Title 21 of the Oklahoma Statutes, and against the peace and dignity of the State of Oklahoma . . .

¶25 An information is sufficient if it (1) contains every essential element of the offense charged, and (2) fairly informs the accused of the charges against which he must defend. See Tiger v. State, 900 P.2d 406, 408 (Okl.Cr. 1995); Miller v. State, 827 P.2d 875, 877 (Okl.Cr. 1992); Lambert v. State, 888 P.2d 494, 504 (Okl.Cr. 1994); Plotner v. State, 762 P.2d 936, 940 (Okl.Cr. 1988). The test to assess the sufficiency of the information is two-pronged: (1) whether the defendant was in fact misled by it, and (2) whether conviction under it would expose the defendant to the possibility of being put in jeopardy a second time for the same offense. Lambert, 888 P.2d at 504; Wolfenbarger v. State, 710 P.2d 114, 115 (Okl.Cr. 1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2915, 91 L.Ed.2d 544 (1986); Jefferson v. State, 675 P.2d 443, 445 (Okl.Cr. 1984). We have previously determined that the elements of the underlying felony are essential to a felony murder charge. Tiger, 900 P.2d at 408.

¶26 In Parker v. State, 917 P.2d 980 (Okl.Cr. 1996), we reviewed our rulings in Tiger and Miller and held that an information need not allege each element of a crime in order to confer jurisdiction. Rather, the question is whether the information gives the defendant notice of the charges against him and apprises him of what he must defend against at trial. Id. at 986. The Information here alleged in the alternative that Petitioner was guilty either of malice murder or felony murder. The Information, while lacking specificity, gave the defendant sufficient notice of the charges against him. It recited the name of the defendant, the date, place, weapon, and method of the crime, identified the crime victim, and specified the statutes under which Petitioner was charged.

¶27 Additionally, Petitioner entered a blind plea to the felony murder charge filed against him. At the hearing where Petitioner entered his plea, he testified that he knew all of the elements of the crime(s) he was charged with and was aware that if he chose to go to trial the burden was on the State to prove each of the elements of the crime(s). At the plea hearing, the following exchange took place between Petitioner and the trial court:

THE COURT: You're swearing under oath the statements you've made in this affidavit are true and correct?

DEFENDANT: Yes, sir.

COURT: That you did on the 2nd day of March, 1993, at 1324 North Indiana in Oklahoma City, Oklahoma County, that "I, Bobby Joe Fields, went into Louise Schem's house. I thought she wasn't home. It was my intention to burglarize her house and to take her television to support my drug habit. After I went into her house, and as I was trying to unhook the TV, she came at me with a gun. We got in a fight over the gun. In the struggle, I shot her one time, causing her death." Is that correct?

DEFENDANT: Yes, sir.

For Petitioner to claim now that he did not know all of the elements of the crimes he was charged with when he specifically testified to the contrary is simply not believable. We find no error here.2

¶28 At Proposition II, Petitioner claims he did not knowingly enter his guilty plea. This Court has determined that trial judges should observe the procedures and guidelines set forth in King v. State, 553 P.2d 529, 535 (Okl.Cr. 1976) in accepting a defendant's guilty plea, to assure that it is knowingly and voluntarily entered. The findings of the trial court should be enunciated on the record for [923 P.2d 630] review to preclude any question on appeal. However, we have long held that the protections of King do not require mechanical compliance. Berget v. State, 824 P.2d 364, 370 (Okl.Cr. 1991), cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992); State v. Durant, 609 P.2d 792, 793 (Okl.Cr. 1980). Neither do we require that the trial court undertake some sort of formal ritual in order to satisfy the minimum standards of due process when accepting a guilty plea. Berget, 824 P.2d at 370; Ocampo v. State, 778 P.2d 920, 923 (Okl.Cr. 1989). Instead, we will examine the entire record before us to determine whether the guilty plea was entered in a knowing and voluntary manner.

¶29 An examination of this record simply does not support Petitioner's claim that he was not fully apprised of the ramifications of entering a plea to felony murder. As a subproposition of error, Petitioner claims he was not advised that he was waiving his right to have a jury determine his sentence by entering a plea. Pursuant to 21 O.S.Supp.1992, § 701.10(B), if a jury trial has been waived by the defendant's entry of a plea of guilty to the charge of first degree murder, the sentencing proceeding shall be conducted by the trial court.3 There is no entitlement to jury sentencing on a first degree murder charge once a guilty plea has been entered. Petitioner admits he did not raise the error in question at the trial court level but claims it is fundamental (plain) and can be raised here for the first time. Petitioner's cited authorities do not support his claim.

¶30 Petitioner has waived the argument by failing to raise it at the withdrawal hearing, and we review it for plain error only. Medlock v. State, 887 P.2d 1333, 1344 (Okl.Cr. 1994); Simpson v. State, 876 P.2d 690, 693 (Okl.Cr. 1994). Does the trial court need to advise Petitioner that he is waiving the right to jury sentencing by entering a guilty plea? Petitioner cites no authority establishing that requirement. We find no such requirement exists and refuse to establish one here.

¶31 Even if such a requirement existed, petitioner is unable to show either surprise or prejudice due to the trial court's failure to specifically advise Petitioner of the waiver. A review of the sentencing hearing reveals that prior to the actual sentencing hearing numerous motions in limine were heard. Numerous defense motions filed with respect to Petitioner's potential jury were dismissed, with defense counsel's statement to the court that the motions were rendered moot by virtue of Petitioner having entered a plea to the charge, as there was no jury. Specifically, defense counsel stated:

Number forty-three. Motion for jury sentencing. We would ask that be stricken. We've done that by virtue of the fact that we've blind pled to this crime to you, sir.

The court struck the motion, as Petitioner requested. Petitioner specifically waived any right, assuming there was one, to be sentenced by a jury. We find no reversible error here. It is also interesting to note that the majority of Petitioner's remaining arguments center around his claim that he was assured that the judge was not going to give him a death sentence. There is no doubt Petitioner knew he was waiving jury sentencing.

¶32 Petitioner then claims he was not advised of the elements of First Degree Burglary Felony Murder. We addressed this issue at Proposition I and will not address it further.

¶33 Petitioner then complains that the sentencing judge was provided with an unredacted copy of his videotaped interview with police which included interrogation accusing him of an unadjudicated homicide. Petitioner complains Judge Gullett viewed a taped police interview wherein Petitioner was questioned concerning another homicide, in addition to the questioning that took place concerning this murder. The tape was provided to the court prior to trial and prior to the plea, in an effort to expedite the Jackson v. Denno4 hearing that would have been required had the case gone to trial. Defense counsel provided the tape to the judge. [923 P.2d 631] When the tape was entered into evidence, counsel for the state and Petitioner agreed that the entire tape should be entered into evidence, with defense counsel stating "No objection whatsoever, Judge." It was at this point that the State indicated its understanding that the court had reviewed the entire tape. Petitioner now claims that had he known the judge was provided with the entire tape, he would not have entered a plea.5

¶34 Judge Gullett, at the plea withdrawal hearing, made a record indicating that he did not review the last portion of the tape containing the interview of the unadjudicated homicide. Petitioner claims the judge's assurances are irrelevant, as he (Petitioner) did not have sufficient information to make an informed decision concerning the entering of the guilty plea.

¶35 Petitioner's argument is meritless. He first claims that had he known the judge was going to see the entire interview, he would not have entered a plea. However, once the judge confirmed that the only portion of the tape viewed was the part concerning Louise Schem's murder, Petitioner then changes his argument to claim that the actual viewing wasn't the issue: the issue was whether he had all evidence available to make an informed decision about entering a plea. The argument becomes even more suspect when the rest of Petitioner's brief is reviewed. As noted above, his actual complaint is that he did not think that the judge would sentence him to death — regardless of the information viewed or not viewed by the court. There is no error here. Random unsubstantiated claims of error supported by no actual injury will not be considered as proper grounds for reversal.

¶36 As his next complaint, Petitioner claims he was not informed that relatives of the sentencer (Judge Gullett) had been victims of home invasion crimes. The crimes referred to occurred in 1973 and 1979. In 1973, Judge Gullett's parents' home was burglarized, and in 1979, his cousin's ex-wife was murdered in a similar crime. Petitioner now alleges he would not have pled had he known of this information. Petitioner cites no authority for his claim that he is entitled to know the background of the sentencing judge, and his claim is overshadowed by his real complaint which is that he did not think the judge would sentence him to death. Petitioner does not claim that the sentence was imposed because the judge's relatives were crime victims almost 20 years ago. He simply claims that he would not have pled had he known of the information.

¶37 This same argument, raised at the hearing on Petitioner's motion to withdraw his plea, was disputed by Judge Gullett who explained that the murder of his cousin's ex-wife and his parent's burglary had not entered his mind for over 15 years, and that the incidents in no way influenced the sentence imposed. The judge stated:

Whether or not the Court has had problems in its background as far as my parents being burglarized some twenty years ago, which I hadn't even thought of until I saw it in this. or my cousin's ex-wife, which was divorced some three or four years, was murdered, I hadn't even thought of that in fifteen years. The first time I would let an incident like that interfere with any decision I would make on this bench, I would tell you and promise you under oath that I would step down from this bench and resign.

Petitioner presents no authority for his position that requires voir dire of sentencing judges. Even if such a requirement were present, the claim was presented and properly rejected at the hearing on Petitioner's motion to withdraw. This argument is without merit.

¶38 The focus of this Court in evaluating whether a defendant should be allowed to withdraw a guilty plea is whether the trial court abused its discretion in failing to allow the plea to be withdrawn. Allen v. State, 821 P.2d 371, 375 (Okl.Cr. 1991). The only concern is whether the plea was entered knowingly and voluntarily. Frederick v. State, 811 P.2d 601, 603 (Okl.Cr. 1991). We find no [923 P.2d 632] abuse of discretion here and nothing to indicate the plea was not knowing and voluntary.

¶39 Lastly, Petitioner claims he was not informed of the limited scope of an appeal from a guilty plea. There is no requirement that Petitioner be informed of the scope of an appeal from a guilty plea, and Petitioner cites no relevant authority in support of this position. The plea taken in this case met all of the requirements of King, and we find that it was knowingly and voluntarily entered. We find no error here.

¶40 At Proposition III, Petitioner claims that his plea was a product of improper or undue influence, persuasion, fear, duress or coercion, and was therefore not "voluntary". Petitioner's claim here is twofold. He first alleges he was misinformed of his chances of receiving the death penalty versus life or life without parole by entering a plea, and therefore the advice received from counsel was misleading. Secondly, he alleges defense counsel, in discussions with the court, assumed she had some type of assurance from the court that the death penalty would not be imposed.

¶41 Petitioner alleges defense counsel, Catherine Burton, was inexperienced in death cases, which lead to her ineffective assistance in representing him. He fails to mention to the Court that her second chair, Timothy Wilson, was not inexperienced. In fact, at the withdrawal hearing Wilson admitted that he was probably the most experienced death litigator in his office, second only to his boss, the Oklahoma County Public Defender. Regardless of her inexperience in death cases, Burton was not an inexperienced defense attorney. The tone of this entire section of the brief is that counsel had spoken with the court, ex parte, on several occasions, and thought that the chances of having the death penalty imposed by the court were less than the chances that a jury would impose the death penalty.

¶42 We find nothing in the record to indicate Petitioner and defense counsel were not fully aware that the death penalty was a possibility upon entering a plea. In fact, the record is replete with references to the three punishment options available for consideration and the fact that all three would be considered by the trial court. The record reveals no promises of leniency, threats or coercion as the catalyst for Petitioner's entry of a blind plea and Petitioner's answers to questions asked at the plea hearing support that finding.

¶43 We find nothing to support Petitioner's claim that the plea was not knowing and voluntary. This is not to say that Petitioner's plea was entered without immense trepidation and anxiety. Unfortunately, that is not the standard for evaluating a plea of guilty and a subsequent attempt to withdraw the same. Petitioner's claim that counsel's explanation of his chances of receiving the death penalty amounted to coercion, inducing him to unwillingly enter a guilty plea is unsupported by the evidence. There is also no evidence to support his contention that counsel promised him he would not receive the death penalty if he entered a blind plea.

¶44 Likewise, there is nothing in the record supporting defense counsels' claims that they thought they "had a wink and a nod" from the judge indicating Petitioner would not receive the death penalty if he entered a plea. Logically, there would be no plea in any death case if the defendant thought he or she was going to receive the death penalty, so we do not doubt Petitioner's claim that he felt he was not going to receive such a sentence. But that is not the criteria used for evaluating the blind plea entered to the charges here.

¶45 First, it should be noted that there is nothing in the record indicating that any type of plea agreement had been reached with anyone, or any testimony at the withdrawal hearing of such an agreement. Secondly, the complaints voiced reflect more of a "hindsight is 20/20" attitude than anything else. In looking back, defense counsel Wilson now claims the strategy and approach to the case was full of error.

¶46 Public defender Pamela Wagner represented Petitioner at the plea withdrawal hearing. An examination of Wilson's testimony at that withdrawal hearing makes several things abundantly clear. Judge Gullett did not agree to any sentence prior to the [923 P.2d 633] plea and sentencing hearing; Judge Gullett's integrity is not being questioned or impugned, all parties agreeing his behavior is, and was, honorable and above reproach; Petitioner knew he could possibly receive the death penalty and was advised of all of the options available to him; Petitioner was "strongly advised" by defense counsel that his best chance for avoiding the death penalty was to enter a plea; although done with the advice of counsel, Petitioner ultimately made the decision to plead guilty and to testify at the sentencing hearing; Petitioner was not coerced into making the plea; and it was a tactical decision on the part of the public defender's office to recommend to Petitioner that he enter a blind plea.

¶47 Burton also testified at the withdrawal hearing. The gist of her testimony was that in reading the judge, and basing her theory of the case upon it being more of a "burglary 2 gone bad" (as opposed to burglary 1, where Petitioner would have known the victim was home), she thought she could plead the case and Petitioner would not get the death penalty. She testified that she was never told by the judge that Petitioner would not get the death penalty, only that the judge would, assuming the facts were as she presented them, "very, very, very, very, very seriously consider" not imposing the death penalty. The judge during this conversation allegedly told her he was not going to run for reelection, and Burton somehow took this to mean that political pressure for imposition of the death penalty would not be present in Petitioner's case, thereby making the imposition of the penalty less likely.

¶48 Burton claimed at the withdrawal hearing that had she known the State was going to allege the Petitioner knew the victim was at home, she would not have pled him. According to Petitioner, the fact that he was alleged to have known the victim was at home changed the scenario as far as the blind plea and the possibility that the death penalty would have been imposed.6

¶49 Burton then addressed the issue of the unredacted tape. She apparently overheard the judge, prior to the hearing on and entry of the blind plea, but after the plea papers had been signed, make some statement to the District Attorney and investigating officers about two other officers who, on the same tape, had questioned Petitioner concerning another unsolved homicide. She testified that she didn't question the judge about the incident because she didn't want to anger him right before the plea hearing and she still thought Petitioner was going to get life or life without parole. She also stated she did not want everyone to know that she had let the unredacted tape go to the judge when it was her job to make sure that the right tape got to him. During this testimony, Judge Gullett made a record wherein he stated that he only viewed the portion of the tape dealing with the case in question, and that he did not review Petitioner's questioning on the unsolved homicide.

¶50 Burton next discussed the mitigation investigation. Burton was second chair and responsible for the mitigation evidence in LaFevers v. State, 897 P.2d 292 (Okl.Cr. 1995). Her testimony was that she did extensive work on the mitigation evidence presented in that case and that she knew what mitigation work needed to be done in a death case. She then testified that the mitigation investigator for her office had been hospitalized and did not complete the mitigation assignments given to him on Petitioner's case. (The investigator subsequently died during the course of this case.) She claims she did not ask for a continuance of the sentencing hearing, even though she thought she had insufficient mitigation evidence, because she didn't want to ruin Petitioner's chances of life or life without parole by angering the judge, and that she didn't realize she could ask for a continuance.

¶51 Cross-examination of Burton revealed that there was more than a nine month period between the preliminary hearing and the actual trial. Burton extensively questioned and [923 P.2d 634] received co-operation from the various investigating officers and did extensive research advancing her theory that the gun used in the burglary was fired accidentally. Her ballistics investigator re-charted and re-enacted various shell trajectory patterns; Burton went through the crime scene clothing (victim's and Petitioner's); she examined all of the evidence the State intended to introduce, including the gun. Burton admitted that none of the evidence introduced at the hearing came as a surprise. She also indicated that the taped interview provided to the judge was not provided to him intact by the State as an intentional act of wrongdoing, and that she did not know, for a fact, what portion of the tape the judge had viewed. She also confirmed that the State refused to agree to a plea of life without parole and she was told that Petitioner's only other option was to enter a blind plea. Burton reiterated that Petitioner was not coerced into entering the plea, but that she had advised him to plea. Her claim was that she misinformed Petitioner. There was a six week time lag between the entry of the plea and the sentencing hearing. Burton announced ready to proceed at the sentencing hearing, and did not request a continuance.

¶52 Burton testified she "pulled out all the stops" to get Petitioner to plead. She had his sisters talk to him; she evaluated the judge's position and his assurances that he would consider all of the punishments; she had her boss talk to Petitioner; she told him that she thought a jury would give him the death penalty; she told him that since Bob Macy7 was going to be on the case, Petitioner would be in much worse shape with a jury than if some other assistant district attorney was trying the case alone; she tried to "terrify" him. She finally stated that Petitioner would not have pled if she had not pressured him to do so.

¶53 Very telling in this case is the trial court's recollection of the months preceding the plea and sentencing as reflected in the transcripts of the motion to withdraw hearing. Judge Gullett noted that every time he spoke with Ms. Burton it was obvious that she was attempting to get him to indicate what sentence he would impose. He also noted that had Petitioner received life without parole or a life sentence, there would have been no motion to withdraw. Judge Gullett's conclusion was that Petitioner was unhappy with his sentence, but that the plea was voluntarily entered and could not be withdrawn.

¶54 There is nothing in the record to indicate the trial court abused its discretion in refusing to allow the plea to be withdrawn. Despite his protestations to the contrary, there is also nothing to indicate that Petitioner did not knowingly and voluntarily, albeit with some anxiety, enter the guilty plea. There is no error here.

¶55 Petitioner claims at Proposition IV that he had viable defenses to present to a jury which would have negated the State's claim that he specifically intended to kill the victim. Petitioner's argument is irrelevant in light of the felony murder charge. The evidence is quite clear, and Petitioner's testimony confirms it, that he fully intended to burglarize Ms. Schem's home. She was killed during the commission of that crime. There is no specific intent requirement for felony murder. Petitioner also cites no authority for this position, recognizing instead that this Court has previously rejected this same argument. See Frederick, 811 P.2d at 603. We see no reason to change our position on this issue.

¶56 Petitioner next claims at Proposition V that he was denied effective assistance of counsel as guaranteed by the state and federal constitutions, and requests that this Court remand the case to the District Court for an evidentiary hearing on the issue of ineffective assistance. He alleges here that counsel was ineffective for advising him to plea. In analyzing this type of claim, this Court is guided by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Castro v. State, 880 P.2d 387, 388 (Okl.Cr. 1994); Cartright v. State, 708 P.2d 592, 594 (Okl.Cr. 1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986). The basic test for ineffectiveness of counsel is "whether [923 P.2d 635] counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. In determining whether counsel provided "reasonably effective assistance," this Court indulges "a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance. . . ." Id., at 689, 104 S.Ct. at 2065; Castro, 880 P.2d at 390. The petitioner bears the burden of showing both that counsel's performance was deficient and that such deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

¶57 Petitioner's requested relief is unwarranted in light of the record on the motion to withdraw. The record is more than sufficient to determine an ineffective assistance of counsel claim, which, incidentally, is the same claim Petitioner raised at the motion to withdraw. The synopsis of events provided in Proposition III above addresses the issue of ineffective assistance as presented under the guise of Petitioner's claim that his plea was involuntary. There is no error here, and no need for another hearing. The fact that the desired result was not reached in this case does not render defense counsel ineffective. Rather, Petitioner has the burden of proving that but for counsel's actions, the result of this trial would have been different. We see no such evidence before us. We find no error here, and find nothing to support Petitioner's claim that counsel's performance was deficient.

¶58 Petitioner's claim of ineffective assistance is then extended to include a claim that defense counsel was ineffective at the sentencing hearing for failing to present more mitigating evidence. Once again, a review of the record does not support this claim. First, Petitioner does not specify what, if any, additional mitigating evidence could have been presented in his defense. Secondly, he does not show that the failure to introduce additional mitigation evidence, assuming there was any, would have resulted in a different sentence. Lastly, we see nothing in the record to indicate there was any additional mitigating evidence available as Petitioner did not have any of the usual problems which are routinely presented as mitigators. Although Petitioner's mother died when he was three and his father abandoned him, all of the witness testimony indicates his oldest sister raised him in a loving, caring family, took him to church, and encouraged him in school. She and her husband raised Petitioner as their own child, along with their other children and Petitioner's younger sister. His sister's husband taught Petitioner to be a mechanic, and the family warned Petitioner after his initial incarceration that they would not tolerate his drug addiction and its accompanying behavior. Petitioner is a crack addict and had been for approximately 8-10 years at the time of the crime. He had been incarcerated three times during that same time period.

¶59 It is, at best, a misstatement, and at worst, a fabrication, that no mitigation evidence was presented. Petitioner simply did not experience the hardships that many defendants present to somehow justify and/or explain their behavior. Even if additional mitigating evidence had been presented, there is nothing to indicate the outcome of this case would have been different. The record does not support Petitioner's claim of error.

¶60 Petitioner next claims that counsel was ineffective in preparing his application to withdraw the guilty plea, alleging first that he was represented at the withdrawal hearing by the same entity that advised him to enter the original plea. Since there was no error in entering the plea, there could be no error in having the same entity represent Petitioner at the motion to withdraw. Even assuming there was error in entering the plea, a review of the record does not support Petitioner's claim. He was more than adequately represented at the withdrawal hearing. Moreover, we have addressed a similar argument in other death cases where the claim has been that appellate counsel was ineffective because they were from the same office as trial counsel, and that argument has been soundly rejected. See Moore v. State, 889 P.2d 1253, 1255, n. 3 (Okl.Cr.), cert. denied, ___ U.S. ___, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995) (no ineffective assistance based on the claim that trial and appellate [923 P.2d 636] counsel were from the same indigent defense entity). We find no error here.

¶61 He next claims trial counsel was ineffective for failing to argue that the trial judge's participation in the plea negotiations invalidated Petitioner's blind plea as a matter of public policy. In support of this argument, Petitioner cites Rule 11 of the Federal Rules of Criminal Procedure8 as persuasive authority that the trial court is prohibited from participating in plea discussions.

¶62 This argument is spurious. There is nothing to indicate the judge participated in plea negotiations: there was no plea negotiated. The trial court indicated only that it would consider the full range of punishment in the event a plea was entered. There is no error here.

¶63 Petitioner then claims trial counsel was ineffective for failing to raise specific grounds for relief in the application to withdraw plea of guilty. Citing Medlock v. State, 887 P.2d 1333, 1344 (Okl.Cr. 1994) for the proposition that failure to raise an argument in a withdrawal motion waives it, Petitioner claims that should we find the issues in Propositions II, III or V waived by failure to raise at the withdrawal hearing, then such failure constitutes ineffective assistance. We found no error at Propositions II, III or V, so there was no error to waive.

¶64 Petitioner next claims trial counsel was ineffective at the hearing on the application to withdraw the guilty plea by failing to disqualify Judge Gullett from presiding over the withdrawal hearing. Disqualification would require some showing of partiality, prejudice or bias. There is a general presumption of impartiality on the part of judges as to matters before them. Carter v. State, 879 P.2d 1234, 1242 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995); Pittman v. State, 718 P.2d 366, 369 (Okl.Cr. 1986). In making a claim of bias, a defendant must show some prejudice which denied him due process or fundamental fairness. Carter, 879 P.2d at 1242; Robison v. State, 818 P.2d 1250, 1252 (Okl.Cr. 1991), cert. denied, 503 U.S. 915, 112 S.Ct. 1285, 117 L.Ed.2d 510 (1992). Testimony at the withdrawal hearing indicated that defense counsel in no way thought Judge Gullett was biased, and in fact noted that he was one of the fairest judges she knew. Likewise, there is nothing in Petitioner's petition for certiorari or the record on appeal to indicate that the judge's refusal to allow Petitioner to withdraw his plea was the result of prejudice, bias or partiality. We find no merit in Petitioner's allegations.

¶65 At Proposition VI Petitioner alleges the evidence presented was insufficient to support the finding that the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution. The State's theory was that Petitioner knew the victim could identify him, as he had been to her house earlier that day, his girlfriend lived two doors down from the victim, and he shot her to prevent her from identifying him. All parties agreed that Petitioner did not have a gun, and shot the victim with her own firearm. Petitioner and the victim wrestled and she was subsequently shot, the bullet entering behind her ear, straight line trajectory, severing the spinal cord and exiting through her mouth. Petitioner claimed that he panicked and in fighting with the victim the gun went off. The State argued Petitioner deliberately "executed" Schem, this claim being proven by the nature of the wound.

¶66 The evidence here was sharply disputed. However, the evidence presented by the State, if believed, would support the State's theory. The task of resolving this conflict [weight and credibility of a witnesses testimony] is not an appellate task. The job is properly vested with the jury which is the exclusive judge of the weight of the evidence and the credibility of the witnesses. Scott v. State, 808 P.2d 73, 76 (Okl.Cr. 1991); Raymond v. State, 717 P.2d 1147, 1149-50 (Okl. Cr. 1986). As there was no jury in this case, the decision was to be made by the trial court.

¶67 In Drew v. State, 771 P.2d 224, 227 (Okl. Cr. 1989), we summarized the standard under which claims involving sufficiency of the evidence must be reviewed:

[923 P.2d 637] The test to be utilized by a reviewing court when determining if the State presented sufficient evidence to support a conviction where both direct and circumstantial evidence has been introduced is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202 (Okl.Cr. 1985); Riley v. State, 760 P.2d 198 (Okl.Cr. 1988.)

See also Luna v. State, 815 P.2d 1197, 1199 (Okl.Cr. 1991). The issue here turns on credibility and who the judge chose to believe. Viewing the facts here in the light most favorable to the State, we find that the evidence presented was sufficient to support the aggravator in question.

¶68 At Proposition VII, Petitioner claims the evidence presented was insufficient to support the finding that he was previously convicted of a felony involving the use or threat of violence to the person. Petitioner's prior conviction was for robbery by force. His judgment and sentence was introduced at trial, and the arresting officer testified that Petitioner was captured at the scene and confessed to committing the crime as charged. The judgment and sentence was admitted without objection and provided sufficient proof of the aggravator. We find no error here.

¶69 At Proposition VIII he alleges the evidence presented was insufficient to support the finding that he would commit criminal acts of violence that would constitute a continuing threat. The evidence presented at trial showed that in 1986, Petitioner was convicted of First Degree Robbery against an elderly woman in the parking lot of a local store. The State's position was that Petitioner perpetrated crimes upon elderly women. As additional support for its claim, the State argued that Petitioner was unemployed and an admitted crack addict. The robbery, by Petitioner's own admission, was committed to support his crack habit. Testimony from his expert indicated Petitioner was prone to panic in stressful situations. The evidence also showed that Petitioner left the scene of the murder, sold the victim's gun to an upstairs neighbor, and purchased additional drugs with that money before returning to his girlfriend's house, all within a short period of time.

¶70 When the question on appeal goes to the sufficiency of the evidence presented to support an aggravating circumstance, the determination to be made is whether there was any competent evidence to support the State's charge. That evidence must be viewed in the light most favorable to the State. See Bryson v. State, 876 P.2d 240 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995); Romano v. State, 847 P.2d 368, 387 (Okl.Cr. 1993). Petitioner's previous incarcerations, the calculated nature of the crime here, and his prior history for violently attacking those incapable of defending themselves provided more than sufficient evidence to find the aggravator alleged. We find no error here.

¶71 At Proposition IX, Petitioner argues that the aggravators used to support his death sentence are unconstitutionally vague and applied in an overbroad manner. We have repeatedly rejected this same argument. See Cooper v. State, 889 P.2d 293, 314-15 (Okl.Cr. 1995), rev'd on other grounds, ___ U.S. ___, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996); Malone v. State, 876 P.2d 707, 715-716 (Okl.Cr. 1994); Boyd v. State, 839 P.2d 1363, 1371 (Okl.Cr.), cert. denied, 509 U.S. 908, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1992). We see no reason to change our position here. We find no error.

¶72 Proposition X espouses that Petitioner was denied a reliable sentencing trial because the judge relied on the same evidence to support two different aggravators. We rejected this same argument in Wallace v. State, 893 P.2d 504, 515-516 (Okl.Cr.), cert. denied, ___ U.S. ___, 116 S.Ct. 232, 133 L.Ed.2d 160 (1995); Medlock, 887 P.2d at 1350; Trice v. State, 853 P.2d 203, 220 (Okl. Cr.), cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 597 (1993); and Pickens v. State, 850 P.2d 328, 336 (Okl.Cr. 1993), cert. denied, 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994). We reject it here also.

¶73 Petitioner then claims at Proposition XI, that the mitigators presented in his [923 P.2d 638] defense outweighed the aggravating circumstances alleged, making imposition of the death penalty improper. Petitioner asserts here that the standard for weighing mitigating circumstances against aggravators is that the latter must outweigh the former "beyond a reasonable doubt." There is no such standard. The process is one of balancing. Romano, 847 P.2d at 392. We find there was sufficient evidence to impose the death penalty and find no error here.

¶74 Petitioner's claim at Proposition XII is that the death penalty is disproportionate in this case considering the crime and the defendant. Petitioner acknowledges this Court's refusal to review death sentence proportionality. See Boltz v. State, 806 P.2d 1117, 1125 (Okl.Cr.), cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991); Foster v. State, 714 P.2d 1031, 1041 (Okl.Cr.), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986). The consideration here is whether the death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor, and whether the evidence supports the finding of the enumerated statutory aggravating circumstances. Hawkins v. State, 891 P.2d 586, 598 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995); 21 O.S.1991, § 701.12. There was sufficient evidence to support the aggravators and there is nothing present in the record to indicate that the sentence imposed here was the result of passion, prejudice or any other arbitrary factor.

¶75 At Proposition XIII, Petitioner alleges the sentencer erred in failing to weigh mitigating circumstances collectively against each of the aggravators individually. Petitioner acknowledges that this Court has specifically rejected this argument in the past, and presents no reason why we should change our position in his case. See Allen v. State, 871 P.2d 79, 101 (Okl.Cr.), cert. denied, ___ U.S. ___, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994).

¶76 Petitioner then alleges at Proposition XIV that the accumulation of errors in this case denied him due process. As we have found no error in this case, we cannot find that the proceedings were unfair. We have consistently held that where there is no individual error there can be no reversal for cumulative error. Hansford v. State, 764 P.2d 910, 913 (Okl.Cr. 1988); Woods v. State, 674 P.2d 1150, 1154 (Okl.Cr. 1984). Peninger v. State, 811 P.2d 609, 613 (Okl.Cr. 1991); Shelton v. State, 793 P.2d 866, 877 (Okl.Cr. 1990); Jones v. State, 765 P.2d 800, 803 (Okl.Cr. 1988).

¶77 Finally, in Proposition XV, Petitioner claims that if his death sentence is vacated, he is entitled to have the case remanded for jury sentencing. As we noted in Proposition II, there is no right to jury sentencing where the defendant enters a plea of guilty to first degree murder. 21 O.S.1991, § 701.10(B). Furthermore, we do not find it necessary to vacate Petitioner's death sentence or to remand the case for any reason.

MANDATORY SENTENCE REVIEW

¶78 Pursuant to 21 O.S.Supp.1991, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the trial court's finding of the aggravating circumstances as enumerated in 21 O.S.1991, § 701.12. After carefully weighing the aggravators and all mitigating evidence, we have determined that the aggravating circumstances alleged here (that the crime was committed to avoid or prevent lawful arrest or prosecution; that Petitioner was previously convicted of a felony involving the use or threat of violence to the person; and that Petitioner constituted a continuing threat to society) upon which the death penalty was based were factually substantiated, and amply supported by the evidence presented at trial. We further find no indication in the record that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.

¶79 We find no error present in Appellant's case warranting reversal, modification or dismissal, and therefore AFFIRM the judgment and sentence of the trial court.

JOHNSON, P.J., CHAPEL, V.P.J., and STRUBHAR, J., concur.

LUMPKIN, P.J., concurs in results.

Footnotes:

1 Petitioner alleges fifteen propositions of error, each containing multiple sub-propositions. Only the main proposition of error listed for each alleged error is set out in this opinion. For the record, all of Petitioner's propositions of error were reviewed and considered by this Court, as were his supplemental authorities.

2 This author applies the above reasoning as a result of stare decisions. Otherwise, I would find no error for the reason expressed in my concur in result in Parker.

3 Petitioner does not claim that he is entitled to be sentenced by a jury. Rather he claims he was not informed that he would be sentenced by the trial court upon entering a guilty plea.

4 Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

5 Petitioner made this same argument at the motion to withdraw hearing, where it was considered and rejected.

6 The State argued that Petitioner had been over at the victim's house earlier in the day, he offered to sell his neighbor a T.V. and V.C.R. prior to the burglary/murder, he admitted being in the house to steal a T.V., he knew the victim was home because the front door (from Petitioner's own testimony) was partially open and the victim's car was under the carport. Witness Dea Russell also testified Petitioner told her he had gone to the house to take the victim's purse.

7 Bob Macy, Oklahoma County District Attorney.

8 Fed.R.Crim.P. 11(e)(1).


Fields v. State, 946 P.2d 266 (Okl.Cr. 1997). (PCR)

After defendant's murder conviction and death sentence was affirmed on direct appeal, 923 P.2d 624, defendant petitioned for postconviction relief. The Court of Criminal Appeals, Lane, J., held that: (1) defendant's claim that his death sentence was invalid was waived; (2) defendant was not denied effective assistance of appellate counsel; (3) defendant's claim regarding trial court's alleged bias was barred by res judicata; and (4) defendant was not entitled to evidentiary hearing or discovery. Application denied.


277 F.3d 1203

Bobby Joe Fields, Petitioner-Appellant,
v.
Gary L. Gibson, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 00-6145

Federal Circuits, 10th Cir.

January 17, 2002

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-98-25-T)

Before TACHA, Chief Judge,EBEL and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Bobby Joe Fields appeals the denial of his writ of habeas corpus brought under 28 U.S.C. 2254. A certificate of appealability was granted on the following four issues: (1) whether trial counsels' pressure of Fields to accept a blind guilty plea resulted in its being involuntary; (2) whether trial counsel rendered ineffective assistance in advising Fields to enter a blind guilty plea; (3) whether the same evidence may support different death penalty aggravators; and (4) whether there was sufficient evidence to support the "prior violent felony" aggravator. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and AFFIRM.

BACKGROUND

A. The Murder

On March 1, 1993, Shirley Masterson, Bobby Joe Fields's girlfriend, invited Fields to party at her duplex at 1312 N. Indiana Avenue. Masterson's Aid to Families with Dependent Children check had arrived and she planned on using the money to buy alcohol and cocaine. Shawanda and Yolanda Pittman, Masterson's grown daughters, and Dia Russell, Shawanda and Yolanda's friend, were partying with Masterson and Fields.

The party continued the next day, March 2, 1993. Sometime around noon, Fields walked two doors down to Louise Schem's house (1324 N. Indiana Ave.) ostensibly to ask if he could do yard work for her. She declined. In the mid- to late-afternoon, Fields went to the upstairs-half of Masterson's duplex (1312 1/2 N. Indiana Ave.) to ask Albert Anuario if he wanted to buy a television and VCR for $70. Anuario, who had also been drinking, replied that he was interested but that he did not have enough money.

Fields decided to steal Schem's television and sell it to buy more cocaine. When, around 5 p.m., he again walked down the block to carry out the robbery, he thought Schem was not at home. He opened the screen door, pushed open the front door,1 crossed the living room to the television (which was on), and reached to unplug it. At that moment, Schem entered the room carrying her .25 semi-automatic pistol. A struggle ensued as the two of them wrestled to control the gun. Despite the fact that, at the time, Fields was thirty years-old, 5' 7" tall, and weighed 140 pounds while Schem was elderly,2 5' 4" tall, and 114 pounds, their struggle was protracted: it began in the living room, spilled out the front door and down the steps, and ended on the sidewalk in front of Schem's house.3

Robert Vallejo happened to be driving by and saw the final seconds of the altercation. He testified that he saw them struggling on the sidewalk, heard Schem cry "Help! Help!", heard a gunshot, and watched Schem fall to the sidewalk. The government's medical examiner testified that the bullet had a flat trajectory it entered the back, left-side of Schem's neck, beneath her left ear, passed through her spinal cord and the back of her mouth, and exited her mouth, fracturing two of her incisor teeth. The gunpowder residue on the back of her neck indicated that the shot was fired from six to twelve inches.4

Vallejo drove away a short distance, made a U-turn, and returned to the scene. Fields had fled, but he returned to Masterson's house thirty to forty minutes later. As he walked in Masterson's back door, the pistol went off. Dia Russell testified that Fields looked hysterical he was talking fast and breathing heavily. Perhaps half an hour after returning to Masterson's house, he went upstairs and sold the gun to Anuario for $40.

Shortly after the police and medical personnel started arriving at Schem's house, Russell took Masterson and Fields to Fields's sister's house. Russell testified that during the drive Fields said that "he didn't have any kind of remorse or guilt" and "he wouldn't lose any sleep" because "white people deserve what they got." (Fields is black; Schem was white.) In addition, she testified that later, while they were watching a news story of how the police had arrested a different black man for the murder, he said that he was "relieved" that he might not get caught and that "he had thought about being on [the television show] America's [M]ost [W]anted."

B. Fields's Arrest and Guilty Plea

Two days after the murder, on March 4, 1993, Fields was arrested and interrogated.5 He told the police that, thinking Schem was not home, he went to her house to steal her television. When she surprised him with a gun, he jumped at her in self-defense, and they wrestled over the weapon. The struggle spilled out onto the sidewalk, where he pulled the gun from her hands. As he did so, it went off accidentally, killing her.

Fields was charged with first degree felony murder, and, in the alternative, first degree malice murder. On May 7, 1993, a Bill of Particulars was filed alleging three death penalty aggravators: that Fields previously had been convicted of a felony involving the use or threat of violence ("prior violent felony"); that Fields committed murder to avoid lawful arrest or prosecution ("murdered to avoid arrest"); and that Fields was a continuing threat to society ("continuing threat to society").

Catherine Burton, an assistant public defender, was assigned Fields's case on March 24, 1993. Burton was a relatively new attorney in the Public Defender's Office ("PDO"), having been there only 21/2 years. Up until five days before trial, Burton was handling the case by herself. Her repeated requests for help did not elicit a response from the PDO. Burton was intimidated by the fact that the lead prosecutor in the case was Robert ("Bob") H. Macy.

Originally, Oklahoma Judge James Gullet had set trial for October 4, 1993. Burton asked for a continuance so she could better prepare, and the trial was reset for Monday, February 7, 1994. On Wednesday, February 2, 1994, Tim Wilson, assistant public defender and chief of the PDO's litigation division, the second most experienced death penalty lawyer at the PDO, overheard in the lunch room that Burton was going to trial by herself on the Fields case. He sought Burton out and volunteered his help. She accepted, they talked over the "pleadability" of the case, and she asked him to argue the motions.

Burton thought she had a "done deal" with Judge Gullet: she would convince Fields to accept a blind plea and he would be sentenced to less than death. Burton drew this conclusion from various conversations with Judge Gullet. For example, at a pretrial conference, after hearing the prosecutor recite the facts, Judge Gullet said it did not sound like a death penalty case to him. At another time, Burton was speaking ex parte with Judge Gullet about another case, when he asked her to refresh him on the facts of the Fields case. After she did, he said, "If the facts are as you say they are, I will very, very, very, seriously consider giving him life or life without parole." During that same conversation, he told her he was retiring. Burton took that statement to mean that the judge was indicating that he was more inclined to sentence Fields to less than death because the judge would not have to answer to the media or worry about re-election.

Everyone agreed, however, that Judge Gullet never promised or guaranteed anything to Burton or Fields. Judge Gullet stated on the record that "not once did I advise [Burton] that I would consider one sentencing over another sentencing. Every time that she talked with this Court, what I would advise her, I would consider all three statutory ranges of punishment[: life, life without parole, and death]."

Burton relayed her impressions to Fields. She tried to convince him to enter a blind plea of guilty, but he was reluctant. She drew a line on her legal pad, six inches long, and marked off what she though his chances were of receiving each of the three possible punishments from Judge Gullet: his chance of getting death was half an inch, his chance of getting life was one inch, and his chance of getting life without parole was everything else 41/2 inches. She also advised Fields that if he went to trial before a jury she believed that he would get the death penalty, and that tactically he would be far better off entering a blind guilty plea to the court.

At the hearing on the motion to withdraw the plea, Burton testified that the week before trial she "pulled out all the stops" to convince Fields to accept the blind plea. She persuaded all of Fields's sisters, including the one who raised him, to try to convince him to enter a blind guilty plea. On Sunday, February 6, 1994, the day before trial, Burton and Wilson visited Fields and she told him that while she was fully prepared to go to trial, they both recommended that he take the blind plea because it was his best chance to avoid a death sentence. Finally they convinced him, and on Monday, February 7, 1994, Fields entered the blind guilty plea in open court. Prior to entering his plea, both his trial counsel (Burton and Wilson) and Judge Gullet told Fields that if he pled guilty, he could be sentenced to life, life without parole, or death.

The sentencing hearing took place March 28 - 29, 1994. The State and the defense each put on ten witnesses. Fields testified and was cross-examined. To demonstrate the "prior violent felony" aggravator, the government called Police Detective Robert Cannon. Cannon testified that on March 20, 1986, Fields had snatched a purse from a 58-year-old woman who was walking through a parking lot with her daughter. The daughter chased and caught Fields, who, in breaking free of her grasp, threw her to the ground. The government then introduced, without objection, a certified judgment and sentence stating Fields was convicted of first degree robbery.

In mitigation, the defense showed that Fields's father physically abused his mother, his mother died when he was three years old, his oldest sister raised him in a loving family, he lived in a violent neighborhood, he abused alcohol since age eight, he used drugs since age nine, and he had been addicted to alcohol and cocaine for about twenty years. Dr. Phillip Murphy, a clinical psychologist, testified that Fields is somewhat anxious and agitated, feels tension when faced with anger, and has a propensity to panic in stressful situations. He stated that Fields has a balanced personality and a slightly below normal ("dull-average") I.Q. In his opinion, Fields had his emotional needs met by the loving, tight-knit family in which he was raised, and would not be a continuing threat to society.

After closing arguments, Judge Gullet took a thirty-minute recess to consider the evidence and make a decision. He found that the State had proven the existence of all three aggravating circumstances ((1) "prior violent felony," (2) "murdered to avoid arrest," and (3) "continuing threat to society") and that these aggravators "far outweigh[ed] any mitigating circumstances." Thus, he sentenced Fields to death by lethal injection. The court's final pronouncement of its death sentence took place one week later, on April 7, 1994.

C. Fields's Appeals

Fields timely filed a motion to withdraw his plea on April 15, 1994. On May 13, 1994, Judge Gullet held a hearing on this motion, at which Burton and Wilson testified.

When asked whether she "forced" Fields to plead guilty, Burton replied, "No, I just think I misinformed him. I think I misinterpreted and I misinformed my client." She reluctantly admitted that her advice to Fields was a tactical decision, based on her belief that he had a better chance of avoiding the death penalty if he pled guilty. When Wilson was asked whether Fields pled voluntarily, he said, "We told Mr. Fields that the best way to beat the death penalty was to blind plea. That we thought we had a wink and a nod. Armed with that, Mr. Fields, yes, he knowingly and voluntarily entered his plea." Wilson testified that they "strongly urged" Fields to accept the blind plea but that they made it clear it was "his decision."

Judge Gullet denied the motion to withdraw the plea, stating, "As far as I'm concerned this defendant took his chances. . . . I think the defendant was entered this plea knowingly and voluntarily, and he was adequately represented by counsel."

Fields appealed directly to the Oklahoma Court of Criminal Appeals ("OCCA"), raising fifteen issues, including the four presented to us. See Fields v. State of Oklahoma, 923 P.2d 624, 627-28 (Okla. Crim. App. 1996) (hereinafter, "Fields I"). In a published opinion dated July 31, 1996, the OCCA found no errors warranting reversal and affirmed the death sentence. See id. at 638. On June 9, 1997, Fields filed for state post-conviction relief, raising seven issues, and this, too, was denied by the OCCA. See Fields v. State of Oklahoma, 946 P.2d 266, 273 (Okla. Crim. App. 1997) (hereinafter, "Fields II").

Fields raised thirteen issues in his petition for federal habeas relief, including the four presented to us. In a 52-page Memorandum Opinion, Judge Thompson denied Fields's petition and motion for an evidentiary hearing. Notwithstanding his Memorandum Opinion, however, Judge Thomson granted a certificate of appealability ("COA") on two issues: (1) whether Fields's guilty plea was voluntarily entered due to his trial counsels' coercion, and (2) whether insufficient evidence supported the prior violent felony aggravator.

This court granted COA on two additional issues: (3) whether Fields was denied adequate representation of trial counsel when deciding to enter a blind plea of guilty, and (4) whether the same evidence can be used to support different aggravators in the penalty phase without violating the United States Constitution.

DISCUSSION

Bobby Joe Fields is a drug addict who, in order to feed his addiction, tried to steal a television from a house he arguably thought was empty. At the time of the attempted theft, he was drunk and probably high and was not carrying a weapon. Loiuse Schem surprised him, brandishing her .25 mm pistol. After a struggle during which he got control of the gun, he shot her once through the back of the neck and head, killing her instantly. He then fled. There was evidence that the gun may have had a hair-trigger because it discharged again as he re-entered Masterson's house half-an-hour after the murder. Fields's prior convictions were for first degree robbery for snatching an elderly woman's purse and for unauthorized use of a motor vehicle. Although in many ways this looks like just a burglary gone bad, Bob Macy, the prosecutor, chose to pursue the death penalty.

Because we do not find any reversible error, we affirm Fields's conviction and sentence.

A. Standard of Review

Under the [Antiterrorism and Effective Death Penalty Act of 1996], our review of the state court's proceedings is quite limited . . . . We may not grant habeas relief unless the state court's decision was: "(1) ... contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999) (quoting 28 U.S.C. 2254(d)). Factual findings of a state court are presumed correct and can be overturned by this Court only by a showing of clear and convincing evidence. See 28 U.S.C. 2254(e)(1).

I. Did Fields voluntarily enter his guilty plea?

Fields raised this issue to the OCCA, alleging that he was misinformed of his chances of receiving the death penalty if he accepted the blind plea and that Burton assumed that the trial judge had assured her that he would not sentence Fields to death. See Fields I, 923 P.2d at 632. The OCCA found the facts were to the contrary. "We find nothing in the record to indicate [Fields] and defense counsel were not fully aware that the death penalty was a possibility upon entering a plea. . . . The record reveals no promises of leniency, threats or coercion as the catalyst for [Fields's] entry of a blind plea . . . ." Id. "Likewise, there is nothing in the record supporting defense counsels' claims that they thought they 'had a wink and a nod' from the judge indicating [Fields] would not receive the death penalty if he entered a plea." Id. Thus, the OCCA concluded that "[d]espite his protestations to the contrary, there is . . . nothing to indicate that [Fields] did not knowingly and voluntarily, albeit with some anxiety, enter the guilty plea." Fields I, 923 P.2d at 634.

Whether a plea is voluntary is a question of federal law, but this legal conclusion rests on factual findings and inferences from those findings. See Parke v. Raley, 506 U.S. 20, 35 (1992) (pre-AEDPA case). Fields has not demonstrated a violation of AEDPA because he has failed to show that the OCCA's conclusion that he entered his plea voluntarily "was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court . . . or . . . was based on an unreasonable determination of the facts . . . ." 28 U.S.C. 2254(d).

The Due Process Clause of the Fourteenth Amendment requires that a defendant knowingly and voluntarily enter a plea of guilty. See Boykin v. Alabama, 395 U.S. 238, 242 (1969); Miles, 61 F.3d at 1465. "A plea can be involuntary even if the threats or promises do not come from a person within the criminal justice system." 5 Wayne R. LaFave, et al., Criminal Procedure 21.4(b), at 157 n.33 (2d ed. 1999). "Acts that might constitute coercion if done by the court or a prosecutor may not rise to that level if done by others." Iaea v. Sunn, 800 F.2d 861, 867 (9th Cir. 1986) (citing United States ex rel. Brown v. LaVallee, 424 F.2d 457, 461 (2d Cir. 1970) (explaining that statements that might have been coercive when made by a prosecutor or judge are not coercive when made by defendant's mother and his counsel)).6 "[C]oercion by the accused's counsel can render a plea involuntary." United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988).

"The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970). "A plea may be involuntary when an attorney materially misinforms the defendant of the consequences of the plea," United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990), e.g., by falsely alleging that promises or guarantees exist, see Braun v. Ward, 190 F.3d 1181, 1189 (10th Cir. 1999) (finding a guilty plea voluntary because the defendant was "taking his chances" by relying on his attorney's good-faith advice and there was no evidence of guarantees or promises). In addition, a plea may be involuntary if counsel informs the defendant that he has no choice, he must plead guilty. See United States v. Carr, 80 F.3d 413, 416 (10th Cir.1996) (stating that, to be valid, a plea must represent a "voluntary and intelligent choice among the alternative courses of action open to the defendant") (emphasis added). Fields was neither materially misinformed nor told he had no choice.

The two potential sources of coercion in this case are his trial counsel and his family. As for trial counsel, although Burton and Wilson "pulled out all the stops" and "strongly urged" Fields to accept the blind guilty plea, they never told him they had a promise or guarantee that by pleading guilty he would not receive a death sentence. They couched their advice in terms of probabilities, e.g., Burton's line-diagram that, based on her assessment of Judge Gullet's statements and actions, he was far more likely to sentence Fields to less than death if he pled guilty. "An erroneous sentence estimate by defense counsel does not render a plea involuntary. And a defendant's erroneous expectation, based on his attorney's erroneous estimate, likewise does not render a plea involuntary." Wellnitz v. Page, 420 F.2d 935, 936-37 (10th Cir. 1970) (internal citations omitted). The Supreme Court explained,

Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts.

That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing.

McMann v. Richardson, 397 U.S. 759, 770 (1970).

In a prior case, this court found a guilty plea voluntary despite trial counsel's "vigorous[] urg[ing]" that his client plead guilty because the attorney believed it was in his client's best interest. See Miles, 61 F.3d at 1470. Indeed, one central component of a lawyer's job is to assimilate and synthesize information from numerous sources and then advise clients about what is perceived to be in their best interests. "'Advice even strong urging' by counsel does not invalidate a guilty plea." Williams v. Chrans, 945 F.2d 926, 933 (7th Cir. 1991) (quoting Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir. 1976)); accord Carr, 80 F.3d at 416.

Furthermore, the trial court advised Fields at the change-of-plea hearing that he could be sentenced to life, life without parole, or death. This colloquy between a judge and a defendant before accepting a guilty plea is not pro forma and without legal significance. Rather, it is an important safeguard that protects defendants from incompetent counsel or misunderstandings. At these colloquies, judges take the time to insure that defendants understand the consequences of a guilty plea. See Hardzog v. State, 293 P. 1107, 1108 (Okla. Crim. App. 1930) (stating that a guilty plea "should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea"); cf. Fed. R. Crim. P. 11(c) (entitled "Advice to Defendant" and requiring that a court address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, inter alia, the nature of the charge and the maximum possible penalty provided by law). Had Fields misunderstood or been misinformed about the possibility of receiving the death penalty, Judge Gullet's discussion would have alerted Fields to that fact.

The claim that Fields's family coerced him also fails. While Burton convinced Fields's family to implore him to plead guilty, Fields never alleges that his family members forced or threatened him. By comparison, in Miles, the defendant's family "urged him to plead [guilty] so that they would not have to go to prison." Miles, 61 F.3d at 1469. Yet even there this court upheld the district court's determination that "although Petitioner's family urged him to enter the plea, they did not force, threaten, or coerce him to do so." Id. For the foregoing reasons, we determine that there was no violation of AEDPA. Fields has not demonstrated that the OCCA's conclusion that he entered his blind guilty plea voluntarily "was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court . . . or . . . was based on an unreasonable determination of the facts . . . ." 28 U.S.C. 2254(d).7

II. Did trial counsel render ineffective assistance in advising Fields to enter a blind guilty plea?

"Claims of ineffective assistance of counsel involve mixed questions of law and fact for purposes of review under 2254." Gonzales v. McKune, 247 F.3d 1066, 1072 (10th Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 402-03 (2000) (reviewing question of prejudice in ineffective assistance of counsel claim under 2254(d)(1))), reh'g en banc granted on other grounds, No. 00-3003 (10th Cir. June 18, 2001). "If a state court did not hear the petitioner's claims on the merits, however, we review the district court's legal conclusions de novo and its findings of fact, if any, for clear error." Id. "The Supreme Court has set forth a two-part test for evaluating the claim of a habeas petitioner who is challenging his guilty plea on the ground that he was denied his Sixth Amendment right to effective assistance of counsel." Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998).

First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Hill v. Lockhart, 474 U.S. 52, 57 (1985). "To prove deficient performance, [Fields] must overcome the presumption that counsel's conduct was constitutionally effective. . . . For counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong." Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).

Second, "in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. When assessing "prejudice," a court may consider the likelihood that the correction of an alleged error "would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the [error] likely would have changed the outcome of a trial." Id. See Miller v. Champion, 262 F.3d 1066, 1073 (10th Cir. 2001).

"We may address the performance and prejudice components in any order, but need not address both if [Fields] fails to make a sufficient showing of one." Boyd, 179 F.3d at 914.

Relevant to this appeal are three ways Fields alleges his trial attorneys' performance was constitutionally ineffective: (1) they coerced Fields into accepting the guilty plea, see Opening Brief at 21, 23; (2) they drew unwarranted conclusions from their conversations with Judge Gullet and the prosecutors, id. at 22-23; and (3) they failed to advise him that he was not guilty of either felony or malice murder, id. at 21, 23-27.8

The OCCA addressed the first two of these claims and found "nothing to support [Fields's] claim that counsel's performance was deficient." Fields I, 923 P.2d at 635. It reasoned, "The fact that the desired result was not reached in this case does not render defense counsel ineffective." Id. Fields first raised the third claim on federal habeas review, and the federal district court rejected it on two, alternative grounds: (1) it was procedurally barred and no exceptions to the bar apply, and (2) "the claim itself lacks merit." Memorandum Opinion at 50.

1. Coercion

Fields admits that this argument is merely a re-statement of his argument from Issue One. See Opening Brief at 23 ("Fields would not have pleaded guilty, except for trial counsel's utilization of certain unacceptable tactics herein above discussed in Proposition I, above."). Since we concluded above that Burton and Wilson did not coerce Fields but merely "strongly urged" him to do what they thought was in his best interest, we find this argument fails to demonstrate deficient performance. Accordingly, the OCCA's determination that there was "nothing [in the record] to support [Fields's] claim that counsel's performance was deficient" was not "contrary to, or [did not] involve[] an unreasonable application of, clearly established Federal law as determined by the Supreme Court." 28 U.S.C. 2254(d)(1).

2. Unwarranted Conclusions from Conversations with the Judge

Fields argues that "[t]rial counsel's reliance upon these statements [by Judge Gullet and the district attorneys], as gospel, was deficient . . . ." Lawyers, like Burton, are supposed to draw conclusions from all the evidence in a case and recommend what they think is in their clients' best interest. That is precisely what Burton did, even if her conclusions were, in hindsight, unwarranted.

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Strickland v. Washington, 466 U.S. 668, 689 (1984) (quotations omitted). "The Supreme Court has recognized that because representation is an art and not a science, even the best criminal defense attorneys would not defend a particular client in the same way." Waters v. Thomas, 46 F.3d 1506, 1522 (11th Cir.1995) (en banc) (alterations, quotation marks, and citations omitted). Burton's performance was not completely unreasonable; therefore it was not deficient. See Boyd, 179 F.3d at 914 ("For counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong.").

The facts in this case are strikingly similar to those in Braun v. Ward, 190 F.3d 1181 (10th Cir. 1999). In that case, Braun alleged that "his blind plea of nolo contendere was involuntary because it was induced by the ineffective assistance of trial counsel." Id. at 1188. Braun contended that "his attorneys misled him into entering his plea when they related to him an alleged conversation with the trial judge indicating that the judge was surprised the prosecutors were seeking the death penalty . . . and when they advised him that he had a better shot in front of the judge than a jury of getting life without parole." Id. In addition, Braun complained about his attorneys' observation that "the judge was a veteran and would not feel the pressure" to give a death sentence. Id. at 1189.

This court rejected his claim, writing, "Braun's attorneys made no guarantees regarding his sentence. Based upon their experience and expertise, they properly advised him that he had a better shot in front of the judge. . . . Moreover, it is clear Braun knew when he was entering his plea that he was taking his chances." Id. at 1190. We find no deficient performance in counsel's recommendations that Fields enter into a blind guilty plea based, in part, upon counsel's interpretation of the district judge's sentiments as expressed in ex parte communications.

At oral argument, Fields's counsel argued that Burton's representation was deficient because, in advising Fields, she had relied solely on ex parte discussions with Judge Gullet. We reject this argument for two reasons. First, it is counter-factual. Implicit in Burton's recommendation to Fields that he had a better chance of not receiving the death penalty from a judge than a jury was an assessment by Burton of the merits of the case. Second, while it might have been improper for Burton to have ex parte conversations with Judge Gullet, once they occurred she was under no duty to disregard what she had learned. Again, a lawyer is supposed to take all information she learns and use it to advise her client of his best course of action.

Consequently, the OCCA's conclusion that Fields's counsels' performance was not deficient was not "contrary to, or [did not] involve[] an unreasonable application of, clearly established Federal law as determined by the Supreme Court." 28 U.S.C. 2254(d)(1).

3. Not Guilty of Murder

Fields argues that he was not guilty of burglary, so he could not have been guilty of felony murder. He reasons that he was not guilty of burglary because "there was not forcible entry [into Schem's home], [Fields] was unarmed and he [believed Schem] was not at home at the time of the break-in of her home." Id. The federal district court concluded (1) that this claim is procedurally barred, and (2) that Fields's own testimony establishes that he is guilty of burglary. See Memorandum Opinion at 30-32, 45-50. We need not review the district court's conclusion that this claim is procedurally barred because we can easily find it fails on the merits. See United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (rejecting claim under 2255 on the merits, rather than on the alternative ground of procedural default).

Fields's contentions that he did not forcibly enter, that he was unarmed, and that he believed Schem was not home are not dispositive. "The essential elements of First Degree Burglary are (1) breaking, (2) entering, (3) a dwelling, (4) of another, (5) in which a human is present, (6) with the intent to commit some crime therein." Calhoun v. State, 820 P.2d 819, 821 (Okla. Crim. App. 1991). "The word 'breaking' has been defined as 'any act of physical force, however slight, by which obstructions to entering are removed.'" Pack v. State, 819 P.2d 280, 283 (Okla. Crim. App. 1991).

In Pack, the OCCA found that pushing a door that was already one to two feet open in order to gain entry qualified as "breaking." See id.; see also Dean v. State, 381 P.2d 178, 182 (Okla. Crim. App. 1963) (opening a closed door in order to enter a building constitutes "breaking"). While here it was ambiguous whether Schem's front door was closed or slightly ajar, Fields's action of opening the screen door, pushing open (or opening) the front door, and crossing the threshold into Schem's home satisfies the first two elements of "breaking" and "entering."

Finally, as the district court wrote, "There is no requirement that the defendant know someone is at home to commit First Degree Burglary. Rather, someone must be home." Memorandum Opinion at 49 (emphasis in original). It is undisputed that Schem was, in fact, at home when Fields entered with the intent to steal her television.

Thus, we find this argument without merit.

III. Does using the same evidence to support different death penalty aggravators violate the federal Constitution?

It is unclear whether, in this claim, Fields argues that the federal Constitution was violated because (1) the three aggravators in this case were duplicative or (2) the same evidence was used to support more than one aggravator. Either way, this claim fails on the merits.9

A. Duplicative Factors

"The constitutional validity of aggravating factors is a question of law subject to de novo review." United States v. McCullah, 76 F.3d 1087, 1107 (10th Cir. 1996). In McCullah, this court explained that the presence of "duplicative" aggravating factors results in weighing a factor twice, see id. at 1111-12, and "[s]uch double counting . . . has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally." Id. at 1111.

Accordingly, we held "that the use of duplicative aggravating factors creates an unconstitutional skewing of the weighing process which necessitates a reweighing of the aggravating and mitigating factors." Id. at 1112. To determine whether aggravating factors are duplicative "[t]he applicable test 'is not whether certain evidence is relevant to both aggravators, but rather, whether one aggravating circumstance necessarily subsumes the other[s].'" Smith v. Gibson, 197 F.3d 454, 464 (10th Cir. 1999) (quoting Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir. 1998)).

The three aggravating factors in this case "prior violent felony," "murdered to avoid arrest," and "continuing threat to society" are not duplicative because none of them "necessarily subsumes" the others. "Prior violent felony" requires that the government prove the defendant has committed, in his past, some violent felony which is unrelated to the crime for which he is being convicted. "Murdered to avoid arrest" requires that the government prove the defendant murdered someone in order to avoid lawful arrest or prosecution for the crime for which he is being convicted. "Continuing threat to society" requires that the government prove, based upon his prior conduct, the defendant will likely be a continuing threat to society in the future. The three aggravators are distinguishable on the basis of the time-frame and conduct necessary to prove their existence. While some of the same evidence may be relevant to proving the existence of each, none of them "necessarily subsumes" any of the others.

The evidence in this case supports this observation. To prove "prior violent felony" the government elicited testimony about a purse-snatching Fields committed in 1986. To prove "murdered to avoid arrest" the government introduced evidence that Fields killed Schem in order to avoid being identified by her. To prove "continuing threat to society" the government relied on the same evidence for the prior two aggravators plus other evidence, e.g., "that [Fields] was unemployed and an admitted crack addict" who "was prone to panic in stressful situations" and that Fields "left the scene of the murder, sold the victim's gun to an upstairs neighbor, and purchased additional drugs with that money before returning to his girlfriend's house, all within a short period of time." Fields I, 923 P.2d at 637. This evidence was used to demonstrate a likelihood that Fields would be dangerous in the future. None of the inquiries "necessarily subsumed" any of the others.

This court has explicitly found that "prior violent felony" and "continuing threat to society" are not duplicative: "[T]he aggravating circumstance of future dangerousness and prior felony conviction are not duplicative. The former is supported by evidence of the petitioner's potentiality for future dangerous acts, the latter by evidence of petitioner's past acts." Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999) (citing Berget v. State, 824 P.2d 364 (Okla. Crim. App. 1991)). Berget explains the difference between "prior violent felony" and "continuing threat to society":

[T]he two aggravating circumstances are clearly individual, calling for unique determinations on the part of the jury. In one instance, the sentencer is called upon to evaluate evidence, the judgments and sentences, which indicate the defendant's prior history of criminal activity. In the second instance, the court must look at evidence, including the circumstances of the defendant's prior crimes, in order to determine the likelihood of a defendant's future violent criminal activity.

Berget, 824 P.2d at 377.

We reject Fields's claim of error on this issue.

B. Using the Same Evidence to Support Different Aggravators

Fields cites no cases to support the proposition that it is improper to use the same evidence to support different aggravators. So long as the aggravators are not duplicative, see supra, we see no problem with this. It is commonplace to use one piece of evidence to prove different aspects of a case. For example, a gun might be used to prove the identity of the defendant (because the gun was registered to the defendant or because it had his fingerprints), the mode of death of the victim (whether he was shot or beaten with the butt), and the existence of a sentencing enhancement (felon in possession of a firearm). There is no error.

IV. Was sufficient evidence presented to support the "prior violent felony" aggravator?

Fields argues that there was insufficient evidence to support the prior violent felony aggravator because the testimony detailing the prior crime snatching a purse from a 58-year-old woman contained no evidence of violence or threats of violence. Notably, Fields does not dispute that he was validly convicted of first degree robbery. Rather, he argues that there was insufficient evidence to show that the facts underlying his robbery conviction included violence or threats of violence. The OCCA rejected this challenge on direct review. See Fields I, 923 P.2d at 637. Given our deferential standard of review, we must affirm.

A. Standard of Review

Fields's sufficiency of the evidence challenge reduces, in essence, to a claim that the state court simply misapplied its own aggravating circumstance to the facts of this case. Because federal habeas corpus relief does not lie for errors of state law, federal habeas review of a state court's application of a constitutionally narrowed aggravating circumstance is limited, at most, to determining whether the state court's finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (citations omitted). "[I]n determining whether a state court's application of its constitutionally adequate aggravating circumstance was so erroneous as to raise an independent due process or Eighth Amendment violation, we think the . . . appropriate standard of review is the 'rational factfinder' standard established in Jackson v. Virginia, 443 U.S. 307 (1979)." Id. at 781. Under the "rational factfinder" standard, a court asks "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the [presence of the aggravating circumstance] beyond a reasonable doubt." Id. (emphasis in original).

Jeffers was decided in 1990, before enactment of AEDPA. AEDPA adds another layer of deferential review and has engendered some confusion in Tenth Circuit case-law in this area:

Prior to AEDPA, we reviewed sufficiency of the evidence challenges de novo. See Moore v. Gibson, 195 F.3d 1152, 1176 (10th Cir. 1999). Under AEDPA, however, our standard of review is not as clear. There is precedent in the Tenth Circuit that a sufficiency of the evidence challenge is a legal question and other precedent suggesting it is a question of fact. See Moore, 195 F.3d at 1176-77 (collecting cases on both sides). If we treat the issue as a legal determination, we look to 28 U.S.C. 2254(d)(1) and determine whether the state court decision was contrary to or an unreasonable application of clearly established federal law. If, on the other hand, it is a factual question, we look to 2254(d)(2) and decide whether the state court decision was an unreasonable determination of the facts in light of the evidence presented to the state court. Further, 2254(e)(1) requires us to afford a presumption of correctness to a state court's factual findings.

Hale v. Gibson, 227 F.3d 1298, 1335 n.17 (10th Cir. 2000); see also Thomas v. Gibson, 218 F.3d 1213, 1227 (10th Cir. 2000) (using same formulation and finding evidence insufficient to support aggravator); Medlock v. Ward, 200 F.3d 1314, 1321 & n.6 (10th Cir. 2000) (using same formulation and finding evidence sufficient to support aggravator); Moore v. Gibson, 195 F.3d 1152, 1176-77 (10th Cir. 1999) (same). Thus, if we treat the issue as a legal determination under 2254(d)(1) we ask whether the state court decision was contrary to or an unreasonable application of the "rational factfinder" standard. On the other hand, if we treat the issue as a factual determination under 2254(d)(2) and (e)(1) we ask whether Fields has rebutted the presumption of correctness by showing, by clear and convincing evidence, that the state court's decision was an unreasonable determination of the facts.

We have held, however, that it is possible to avoid deciding what standard of review applies when the petitioner's claims are clearly meritless under either standard. See Hale, 227 F.3d at 1335 n.17 ("In this case, however, we do not determine which is the more appropriate analysis because Hale's claim lacks merit under either standard of review."). Here, too, we follow this approach because we believe that under either of these highly deferential standards Fields's claim fails.

B. Merits

Oklahoma defines the "prior violent felony" aggravator as "a felony involving the use or threat of violence to the person." Okla. Stat. Ann. tit. 21, 701.12(1). The OCCA has established, [T]he State is required to go beyond simple proof that a defendant in a capital case had prior felony convictions to establish the aggravating circumstance. The State must additionally prove that the prior felonies involved the use or threat of violence to the person. The fact that the prior felonies were committed and that the defendant committed them are properly and most easily proven through the use of the judgment and sentence. However, the element that the felonies involved the use or threat of violence is not so easily and summarily proven. It is therefore necessary that the State present sufficient information concerning the prior felony convictions to support its contention.

Brewer v. State, 650 P.2d 54, 62 (Okla. Crim. App. 1982). The Brewer court offered rape and second-degree murder as two examples of prior felonies that courts and parties might assume involve the use or threat of violence to the person, but that conceivably might not the defendant might have committed statutory rape or second-degree murder by driving while intoxicated. See id. Thus, Brewer requires "the State [to] carry the burden of proving that the circumstances concerning a defendant's prior felony convictions are appropriate to its contention that the defendant should suffer the ultimate penalty of death." Id. at 63.

In this case, police detective Robert Cannon testified that on March 20, 1986, Fields had snatched a purse from a 58-year-old woman in a parking lot. The victim's daughter, who was walking with the victim when the robbery occurred, chased and caught up with Fields, who knocked her down during the struggle to break free from her. Cannon described the crime as "a robbery by force." In addition, the government introduced, without objection, a certified judgment and sentence stating Fields had been convicted of first degree robbery on April 9, 1986. "First degree robbery" is defined in Oklahoma as "[r]obbery, when accomplished by the use of force, or of putting the person robbed in fear of some immediate injury to his person." Okla. Stat. Ann. tit. 21, 797. On this record, we cannot state that the OCCA committed error under either AEDPA standard referred to above.

We affirm because we do not find that the OCCA unreasonably applied the "reasonable factfinder" standard nor do we find that Fields has rebutted the presumption of correctness by showing, by clear and convincing evidence, that the OCCA's factual determination was unreasonable.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court's decision to deny Fields's habeas petition.

*****

NOTES:

1 The record is ambiguous as to whether the front door was closed (and thus he had to open it) or whether it was ajar (and so he only had to push it open). We find the ambiguity irrelevant.

2 A friend of Schem's testified she was "gaining on eighty."

3 Schem's friend described her as "feisty" and "a fighter." (Tr. at 45.)

4 While Fields testified that the pistol accidentally went off as he wrested it from Schem's hand, this evidence was also consistent with the government's theory and with other evidence that Fields wrenched the gun from Schem and, as she ran away, deliberately shot her.

5 The police detective who questioned Fields, Johnny Kuhlman, estimated that Fields told "at least five" different versions of what happened on the evening of March 2. Fields eventually stuck with the following story, related in the text.

6 This court in dicta previously has suggested that only coercion by the State can render a plea involuntary: "We also note that Petitioner's family's urgings do not implicate the due process clause of the Fourteenth Amendment because the influence did not come from the court or the government." Miles, 61 F.3d at 1470. However, this dicta is contrary to our earlier holdings in Laycock v. State of New Mexico, 880 F.2d 1184, 1186 (10th Cir. 1989); United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988); and Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir. 1970). United States v. Wilson, 922 F.2d 1336, 1340-41 (7th Cir. 1991). Cf. Bostic v. Carlson, 884 F.2d 1267, 1272 (9th Cir. 1989); Iaea v. Sunn, 800 F.2d 861, 866-67 (9th Cir. 1986). But cf. LoConte v. Dugger, 847 F.2d 745, 753 (11th Cir. 1988). As dicta inconsistent with prior Tenth Circuit law, we are not bound by it. See United States v. Neal, 249 F.3d 1251, 1258 (10th Cir. 2001).

The Supreme Court expressly has held that the actions of defense counsel (who are not state actors, see Polk County v. Dodson, 454 U.S. 312, 321-22 (1981)) may render a plea involuntary and thus a violation of due process. Hill, 474 U.S. at 56. The state-action rationale supporting the holding in Hill appears to be that state action arises from the sentencing court's enforcement of the agreement and/or the state's holding of the prisoner in custody as a result of the plea. See Wilson, 922 F.2d at 1341 ("The result of enforcing the plea bargain is that a defendant is put in custody, and that assuredly entails state action.").

7 Fields contends that (1) Burton was young and inexperienced and (2) he "is not very intelligent and [] suffers from panic disorders." See Opening Brief at 16-18. However, with regard to Burton's inexperience, "we cannot hold that lack of experience is the equivalent of incompetence for competent defense may be accomplished by inexperienced counsel." United States v. Helwig, 159 F.2d 616, 617-18 (3d Cir. 1947). Absent a finding of incompetence, evidence regarding Fields's below-average intelligence does not establish that the guilty plea was involuntary. See Dusky v. United States, 362 U.S. 402, 402 (1960) (the test of mental competency at the time of trial or the entering of a plea in a criminal case is whether the accused "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him."); Wolf v. United States, 430 F.2d 443, 445 (10th Cir. 1970) ("The presence of some degree of mental disorder in the defendant does not necessarily mean that he is incompetent to knowingly and voluntarily enter a plea as well as aid and assist in his own defense."). None of these factors, separately or considered together, establish that Fields's guilty plea was involuntary.

8 Fields also alleges (4) that his attorneys' investigation and presentation of mitigating evidence was deficient. This issue, however, is outside the scope of the issues on which a certificate of appealability was granted. "[A]ppellate review of the habeas denial is limited to the specified issues" in the certificate of appealability. Ramsey v. Bowersox, 149 F.3d 749, 759 (8th Cir. 1998); see 28 U.S.C. 2253(c). Fields himself treated the two issues as distinct in his federal Petition for Writ of Habeas Corpus.

9 Arguably, neither of these two claims was presented to the OCCA. It addressed and rejected the question of whether Fields's sentencing was unfair because "the judge relied on the same evidence to support two different aggravators." Fields I, 923 P.2d at 637 (emphasis added). The federal district court did not discuss the possibility that these claims were procedurally barred, instead dismissing them on the merits. See Memorandum Opinion at 43-44. We likewise see no need to investigate procedural bar when the claims are so clearly meritless. See United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (rejecting claim under 2255 on the merits, rather than on the alternative ground of procedural default).

 

 

 
 
 
 
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