In December 1990, Wallace was arrested in Arkansas and charged with
the abduction and attempted murder of Ross Allen Ferguson, who advised
that he had been picked in a parking lot up by a man posing as a
police officer. He was then taken to a nearby pond and stabbed 6
times. He pretended to be dead, then jumped up, pushed down his
attacker, jumped in the car and took off.
Wallace was arrested later that night walking in the area of the
abduction. Ferguson identified him in a lineup. Wallace later was
sentenced to three life prison terms, plus 60 years, after pleading
guilty to abducting four other teenagers and trying to kill Ferguson.
Wallace was questioned regarding two bodies previously found in a
pond in Oklahoma. Mark Anthony McLaughlin, 14, was last seen on
November 11, 1990, at a Van Buren convenience store. His body was
found the next day. William Eric Domer, 15, was found on February 23,
Wallace confessed to the murders and led authorities to a pasture
where a .22-caliber pistol was found, later identified as the same gun
used to shoot both McLaughlin and Domer in the back of the head.
According to the confession, Wallace paddled both teenagers with a
paddle during the abduction. While in prison,
Wallace also confessed to 2 murders in North Carolina. At trial,
Wallace took the witness stand and told the judge he wanted to die as
quickly as possible.
Death Penalty Institute of Oklahoma
George Wallace - Executed August 10, 2000
George Kent Wallace was executed via lethal injection by the state
of Oklahoma on August 10, 2000. He was pronounced dead at 9:27pm.
Wallace was the 11th man executed by the state this year and the 30th
since Oklahoma resumed executions in 1990. The only previous year in
which Oklahoma executed more people was in 1933, when 14 persons were
On December 10, 1990, George Wallace, then age 50, from Fort Smith,
Arkansas, was arrested. He was charged with the December 9, 1990,
kidnapping and attempted murder of Ross Allen Ferguson, 18. Ferguson
escaped despite multiple stab wounds and being bound in handcuffs and
leg irons. Wallace was held on a $1.5 million bond.
Police reports indicate that Ferguson was picked up in a grocery
store parking lot in Van Buren, Arkansas, by a man who posed as a
police officer. He was then taken to a pond east of Greenwood.
Ferguson fled his kidnapper after being stabbed at least six times.
He pretended to be dead, then jumped up and pushed down his attacker.
Ferguson ran to the car and left his attacker stranded at the pond. He
reached a home where residents called the police. Ferguson was taken
to a hospital where he was in stable condition.
Wallace was arrested later that night walking in the area of the
abduction. Ferguson identified him in a lineup. Isidro Hernandez, 19,
also reported that a man claiming to be a police officer tried to pick
him up, but Hernandez said he "talked his way out of it."
Another kidnapping victim, James Branson, 18, told police that a
man posing as a plainclothes officer picked him up and took him to the
Le Flore County pond. Branson was shackled and handcuffed but was set
free because of his persistent kicking and screaming.
On December 20, 1990, the body of Alonzo Don Cade, 12, was found in
a gas-well pit near Fort Chaffee. Cade had last been seen alive on
November 24, 1990, at a Westark Community College basketball game.
Wallace was questioned regarding two bodies previously found in a
Le Flore County pond. Mark Anthony McLaughlin, 14, was last seen on
November 11, 1990, at a Van Buren convenience store. His body was
found the next day. William Eric Domer, 15, was found on February 23,
Wallace led authorities to a pasture near Seminole, Oklahoma, where
a .22-caliber pistol was found after a three hour search. According to
Le Flore County district attorney investigator Claudie Higgins,
McLaughlin and Domer were shot in the back of the head with a
Wallace was also questioned, but not charged, regarding the 1976
death of Jeffrey Lee Foster and the 1982 death of Thomas Stewart Reed,
both occurred in Forsyth County, North Carolina. Wallace moved to Fort
Smith in 1986.
Before then, he lived in North Carolina. Wallace was sentenced to
three life prison terms, plus 60 years, after pleading guilty to
abducting four Arkansas teenagers and trying to kill one of them.
First degree murder charges were filed in Oklahoma where authorities
said they would seek the death penalty. Wallace waived extradition.
A Le Flore County district judge, Michael Lee, entered an innocent
plea for Wallace and set a competency hearing. The judge ordered a
mental competency evaluation.
The report, from the Carl Albert Mental Health Center in Heavener,
indicated that Wallace was able to "appreciate the nature of the
charges… and rationally assist in the preparation of his defense." The
judge ordered further psychiatric tests. Doctors at Eastern State
Hospital said that Wallace was competent to stand trial. Wallace’s
attorney, Jeff Smith, entered an innocent plea, but also advised the
court that his client wanted to plead guilty.
Prosecutors were seeking the death penalty based on Wallace’s
previous felony convictions, claims that Wallace would be a continuing
threat to society, and the crime alleged was "especially heinous,
atrocious, or cruel."
Wallace took the witness stand and told the judge he wanted to die
as quickly as possible. The judge issued two death sentences, one on
each count. According to Smith, Wallace ignored his advice about
pleading guilty and personally orchestrated a lack of defense. On
March 27, 1995, the state Court of Criminal Appeals set Wallace’s
execution for May 26, 1995.
The court decided that Wallace could waive his presentation of
mitigating evidence. This execution was stayed by the U.S. Supreme
Court to allow Wallace to file a petition for the high court to review
his case. The petition was denied on October 2, 1995.
On October 29, 1995, the state Court of Criminal Appeals set
Wallace’s execution for December 1, 1995. The state Court of Criminal
Appeals granted a stay of execution on November 21, 1995, because
Wallace changed his mind and wanted to appeal his convictions.
Wallace filed his application for Post-Conviction Relief on June 3,
1996. On June 19, 1996, the court issued an order granting additional
time to comply with the rules of the court. Wallace filed his revised
application on July 9, 1996.
On March 18, 1997, the court issued an Order Denying
Post-Conviction Relief, Denying Request for Evidentiary Hearing and
Discovery, and Denying Extension of Time to Amend.
Wallace commenced a habeas action in federal district court and
again moved for discovery and evidentiary hearing. The federal
district court denied all relief and denied a certificate of
appealability. Wallace appealed to the Tenth Circuit of the United
States Court of Appeals.
On September 10, 1999, his appeal was rejected. On June 9, 2000,
the Oklahoma Court of Criminal Appeals set Wallace’s execution date
for August 10.
Wallace waived his right to a clemency hearing by the Oklahoma
Pardon and Parole Board. Of the 29 inmates executed previously, 22
have sought clemency. All petitions for clemency have been denied.
Since capital punishment was reinstated in Oklahoma, this was the 22nd
clemency hearing held for a death row inmate. There has never been a
vote in favor of clemency.
George Kent Wallace
George Kent Wallace, who was convicted of abducting and murdering 2
teenage Arkansas boys and dumping their bodies in Oklahoma, is
scheduled to be executed Aug. 10. Wallace, 59, pled guilty to 2
murders in Oklahoma and later confessed to two murders in North
Charlie Price, a spokesman for Attorney General Drew Edmondson,
said that no legal barriers remain between Wallace and his date with
the executioner. "No, there are no appeals outstanding," Price said.
"We don't see anything to stop this."
Wallace was handed a death sentence in 1991 for the murders of
William Von Eric Domer, 15, of Fort Smith, Ark., and Mark Anthony
McLaughlin, 14, of Van Buren, Ark. The teens' bodies were found 3
years apart in the same pond near Pocola in LeFlore County.
Both had been beaten and then shot. Wallace, a former truck driver
in Fort Smith, lured his victims by impersonating a police officer
before driving them to rural areas and killing them. Wallace plans to
meet Thursday with Allen Gentry, an assistant sheriff in Forsyth
As a convict in 1996, Wallace confessed to the 1976 murder of
Jeffrey Lee Foster and the 1982 murder of Thomas Stewart Reed, Gentry
said. Wallace asked Gentry to meet with him on Thursday.
Gentry said there were no outstanding cases involving Wallace in
North Carolina but that he felt the need to come anyway. "When I
talked to him in 1996, he said he might talk to me about a case in
Oklahoma involving federal property," Gentry said. Although he said
Oklahoma, Wallace could have been referring to the death of
12-year-old Alonzo Cade. Cade's body was found in a gas-well pit in
Fort Chaffee -- federal property -- just east of Fort Smith.
Gary Grimes, the sheriff of Sebastian County, Ark., at the time of
Wallace's arrest, said Wallace was the prime suspect in Cade's death.
Cade's body was discovered shortly after Wallace was captured in
December 1990. His death remains unsolved.
As of Wednesday, Wallace had not requested to speak to Grimes.
Current Sebastian County Sheriff Frank Atkinson, who arrested Wallace,
plans to attend Thursday's execution. Wallace spent more than 3
decades using the authority of phony badges to pick up unsuspecting
teenage boys, who he would then beat with paddles and -- in at least 4
cases -- later kill.
While trying to continue that violent streak, Wallace finally met
his match in a young man who "played possum," survived 6 stab wounds
and then made a daring run to freedom. Wallace had been attempting to
do the same when he picked up Ross Alan Ferguson, then 18, on Dec. 9,
According to reports at the time, Ferguson was in the lot of a Van
Buren grocery store when Wallace approached him. He identified himself
as an officer and told Ferguson he was wanted in connection with a
Wallace shackled Ferguson's hands and ankles and drove him to a
remote location in Sebastian County. As they were driving, Ferguson
said he tried to ask why he was being taken to such a remote location.
Once there, Wallace climbed into the back seat and began beating
After the beating, he walked the young man toward a pond. On the
way there, he stopped and stabbed Ferguson 5 times in the back and
once in the arm. Ferguson said he played possum, pretending to be dead
as Wallace dragged him over the rocks to the bank of the pond.
There, Wallace took off the shackles and readied to throw the body
into the pond. Ferguson jumped up and knocked Wallace to the ground.
He then took off running for Wallace's car. He said he fell countless
times before he got to the car. He credited God for picking him up and
guiding him the last 10 feet to the car.
Once there, he locked the doors. Ferguson said he watched as a
shocked Wallace stood outside the car panting. To his amazement, the
car keys were still in the ignition.
Ferguson drove to a nearby house for help. Then Chief Deputy
Sheriff Frank Atkinson was one of the officers who responded to the
call. Along the way to the home where Ferguson had fled, Atkinson said
he found Wallace walking in a ditch that ran along by the highway.
Ferguson, who is now a paramedic in Arkansas, and Atkinson, who is
now Sebastian County sheriff, are 2 of the people scheduled to view
Wallace's execution. 7 members of the families of Domer and McLaughlin
are also planning to attend the execution, according to the Oklahoma
Attorney General's Office.
8/11/00 - Nine members of the 2 boys' families attended Thursday's
execution. Ross Alan Ferguson, whose escape led to Wallace's capture,
also witnessed the executions, along with his wife and father. "It has
been a long time coming," Ferguson said. "I'm here to honor Eric and
Mark. That's why I'm here. "I want him executed for what he did to
them -- not me."
George Kent Wallace
Dressed in dark clothes, toting handcuffs and ankle shackles, and
flashing a mail-order badge, George Kent Wallace terrorized a strip of
the Arkansas-Oklahoma border a decade ago and left 2 teenage boys
dead. Dressed in the light-blue garb of an inmate and covered from the
waist by a thin blanket, Wallace succumbed to the executioner's needle
Thursday night. Wallace declined to offer any last words, merely
mouthing "I love you" to 1 of his witnesses. He was pronounced dead at
Immediately after he was declared dead, one of his victims' family
members exulted with a clap and a few quick words. "Yes! Yes! Yes!
Yes!" came a woman's voice from behind the darkened glass of the
Wallace, 59, murdered William Von Eric Domer, 15, and Mark Anthony
McLaughlin, 14, at a rural location near Pocola in eastern Oklahoma.
Both victims had been beaten, then shot.
While in prison, Wallace also confessed to 2 murders in North
Carolina. Domer's body was discovered Feb. 22, 1987, in a pond near
Pocola in LeFlore County. He had been kidnapped a few miles away in
Fort Smith, Ark., on Feb. 17. McLaughlin's body was found Nov. 12,
1990, in the same pond. He had been reported missing from Van Buren,
Ark., earlier that day.
After being arrested Dec. 9, 1990, for a similar abduction in which
the intended victim managed to escape, Wallace confessed to the
murders of the boys.
Wallace, who posed as a police officer in order to abduct his
victims, received a death sentence for each murder. 9 members of the 2
boys' families attended Thursday's execution.
Ross Alan Ferguson, whose escape led to Wallace's capture, also
witnessed the executions, along with his wife and father. "It has been
a long time coming," Ferguson said. "I'm here to honor Eric and Mark.
That's why I'm here. "I want him executed for what he did to them --
Since his conviction, Wallace confessed to two murders in North
Carolina, authorities said. In 1996, Wallace confessed to the 1976
murder of Jeffrey Lee Foster and the 1982 murder of Thomas Stewart
Reed, said Allen Gentry, Forsyth County, N.C., assistant sheriff.
Wallace was the 1st inmate to be executed at 9 p.m. Since
reinstating the death penalty, executions in Oklahoma had taken place
immediately after midnight on the date scheduled.
The early hour had been used as a means to ensure that executions
were carried out on the proscribed day. Earlier this year, the
Department of Corrections announced that it would be moving executions
to the evening of the day they were scheduled. "We believe it will
meet the needs of the victims' families better, so they're not forced
to make long drives home so early in the morning afterward," Massie
said. "It'll be closer to a normal workday for staff."
Wallace becomes the 11th condemned inmate to be put to death this
year in Oklahoma the the 30th overall since the state resumed capital
punishment in 1990. 3 women and 135 men remain on the state's death
Wallace also becomes the 59th condemned inmate to be put to death
this year in the USA, and the 657th overall since America resumed
executions on January 17, 1977.
Inmate Changes Mind on Appeal of Death Sentence
McALESTER, Okla. (AP) -- One of two Oklahoma death row inmates who
appeared in federal court in an effort to have their executions moved
up apparently has changed his mind, officials say.
George Kent Wallace appeared Tuesday before federal District Judge
Michael Burrage and rescinded a letter he wrote to the court asking
that his execution date be set, a court clerk said.
Wallace, of Fort Smith, Ark., pleaded guilty to two counts of
first-degree murder for the deaths of William Von Eric Domer, 15, of
Fort Smith, and Mark Anthony McLaughlin, 14, of Van Buren, Ark.
Their bodies were found in the same pond near Pocola in Le Flore
County, Dormer's in 1987 and McLaughlin's in 1990. In 1991, Wallace
had asked to waive his appeals, reports said. In 1995, he changed his
mind a month before his scheduled Dec. 1 execution, records show.
Witness to an Execution
Claire Schaeffer-Duffy - National Catholic Reporter Online
January 19, 2001
Oklahoma City - Last summer, Fr. Bryan Brooks, Tulsa priest and
coordinator for the Office of Prison Ministry with the Tulsa diocese,
witnessed the execution of George K. Wallace.
He did so at the request of Wallace’s appellate attorney. An inmate
is allowed seven witnesses, and Wallace had no family members to
“It was,” said Brooks after a long silence, “a very difficult
experience. There is nothing that I can compare it to. There was no
question of his guilt, but the actual experience was very intense as
well as disgusting.” Wallace had murdered two young men and was a
prime suspect in three other homicides. “It was particularly
difficult,” said Brooks, “because the men killed were the same age as
Brooks was required to be at the penitentiary an hour before the
execution. He was taken to the H-unit and then to a witness chamber
reserved for those observing on behalf of the inmate. “The victims’
families were in a separate room,” he said.
After the blind was raised, a microphone was placed in front of the
strapped-down Wallace, and he was asked if he had any statements to
make. Wallace did not. It took him three minutes to die, Brooks said.
“I felt very numb,” said Brooks who, as a priest, has seen people
die before. But the circumstances were different. “In hospital
emergency rooms, I have seen people die while others are trying to
keep them alive.” “Sterile” is the word Alyson Carson uses to describe
executions at Oklahoma State Penitentiary in McAlester.
As victim witness coordinator for the Attorney General’s Office,
she has observed at least 11 executions. Her job is to guide family
members of the victim through the appeals process right up to the
execution. “If we have a family that didn’t know the execution date,
we do everything possible to let them know what is going on.”
For some families, Carson said, the time in the witness chamber is
their first “reunion” since the murder, because family members often
“stay away from one another” after a homicide. The execution brings
“relief,” an assurance that they don’t have to hear the criminal’s
name again, she said. “Every time they hear the person’s name it
brings them back to the crime.”
Carson is impressed with the efficiency of the execution process at
McAlester. “Once you’re there, everything is ready to go. The
Corrections Department is very professional. They allow him or her to
say a very few words and then go to sleep. That’s it.”
For appellate lawyer Janet Chesley, the execution of her client
Charles Foster was “such a surreal thing.” “There is a long narrow
room. There is a venetian blind in front of you. You kind of file in.
The press comes in. It was so hard for me to believe this was
Chesley doesn’t know if Foster was scared. “Charles had an IQ of 64
and a deep abiding faith,” she said. On the day he died, she spent the
afternoon with him. He told her “ to watch for that feeling” after his
execution. “My soul is going to fly by and wave to you.”
Police Impersonator Executed in Oklahoma
August 11, 2000
Convicted of Two Murders, Suspected in Four Others
McALESTER, Okla. (AP) - A former truck driver who lured his victims
by impersonating a police officer was executed Thursday for the deaths
of two Arkansas teens. George Kent Wallace, 59, was given a lethal
dose of drugs at the Oklahoma State Penitentiary.
Wallace pleaded guilty in 1991 in the deaths of William Von Eric
Domer, 15, of Fort Smith, Ark., and Mark Anthony McLaughlin, 14, of
Van Buren, Ark. The teens' bodies were discovered almost four years
apart -- in 1987 and 1990 -- in the same pond just across the state
line in Oklahoma.
North Carolina killings - Wallace also confessed to killing two men
in North Carolina -- Jeffrey Lee Foster in 1976 and Thomas Stewart
Reed in 1982. He was suspected in the death of another boy in Arkansas
and had indicated he would meet with authorities about the death of
12-year-old Alonzo Don Cade of Fort Smith, but later decided against
The boy's body was found in 1990 in a pond. Wallace was arrested
after an 18-year-old supermarket employee managed to escape after
being stabbed in the back and arm.
Eleventh execution this year in Oklahoma - The man, now 28, told
police Wallace had said he was a police officer and was arresting him.
He said Wallace put him in handcuffs and leg irons, then drove him to
a pond and attacked him. He managed to escape by leaping into the car
and driving away.
Wallace's execution was the 11th this year in Oklahoma, the most in
a year since the state executed 14 men in 1933.
George Kent Wallace
August 11, 2000
Former truck driver George Kent Wallace, 59, was executed by lethal
injection for the deaths of two Arkansas teens. Wallace pleaded guilty
in the deaths of William Von Eric Domer, 15, of Fort Smith, Ark., and
Mark Anthony McLaughlin, 14, of Van Buren, Ark.
teens' bodies were discovered in 1987 and 1990 in the same pond just
across the state line in Oklahoma. Wallace also confessed to killing
two men in North Carolina - Jeffrey Lee Foster in 1976 and Thomas
Stewart Reed in 1982.
Wallace indicated he would meet with authorities about the death of
12-year-old Alonzo Don Cade of Fort Smith, but later decided against
it. The boy's body was found in 1990 in a pond.
Wallace was arrested after an 18-year-old supermarket employee managed
to escape after being stabbed in the back and arm.
man, now 28, told police Wallace had said he was a police officer and
was arresting him. He said Wallace put him in handcuffs and leg irons,
then drove him to a pond and attacked him. He managed to escape by
leaping into the car and driving away.
1995 OK CR 19
GEORGE KENT WALLACE, APPELLANT,
THE STATE OF OKLAHOMA,
Case Number: C-91-309
Oklahoma Court of Criminal Appeals
Appeal from the District Court of LeFlore County; Ted A. Knight,
Associate District Judge.
GEORGE KENT WALLACE, Appellant, entered pleas of guilty to two charges
of Murder in the First Degree (21 O.S.Supp. 1982 § 701.7 [21-701.7](A)
and 21 O.S.Supp. 1989 § 701.7 [21-701.7](A) in LeFlore County Cases
No. CRF-91-1 and CRF-91-2. Following a sentencing hearing, the trial
court found the presence of three aggravating circumstances: Appellant
had previously been convicted of a violent felony (21 O.S. § 701.12
[21-701.12](1)); the murders were especially heinous, atrocious or
cruel (21 O.S. § 701.12 [21-701.12](4)); and Appellant posed a
continuing threat to society (21 O.S. § 701.12 [21-701.12](7)). At a
formal sentencing hearing, Appellant was sentenced to die by lethal
injection. From these judgments and sentences this Court has conducted
a Mandatory Sentence Review. AFFIRMED.
Jeffrey C. Smith, Poteau, Trial Counsel, for appellant at trial.
Anne M. Moore, Asst. Appellate Public Defender, Norman, Appellate
Counsel, for appellant on appeal.
Mike Sullivan, Dist. Atty., Poteau, Trial Counsel, for appellee at
Susan Brimer Loving, Atty. Gen., Diane Blalock, Asst. Atty. Gen.,
Oklahoma City, Appellate Counsel, for appellee on appeal.
OPINION ON MANDATORY SENTENCE REVIEW, ISSUANCE OF MANDATE,
AND SETTING OF EXECUTION DATE
Appellant George Kent Wallace entered a plea of guilty to two charges
of Murder in the First Degree (21 O.S.Supp. 1982 § 701.7 [21-701.7](A)
and 21 O.S.Supp. 1989 § 701.7 [21-701.7](A) in LeFlore County Cases
No. CRF-91-1 and CRF-91-2. The Hon. Ted A. Knight, Associate District
Judge, ordered he be sentenced to death by lethal injection on each
This case is somewhat unique, in that Appellant presented no defense
during his sentencing hearing; and in fact requested the death
penalty. In Grasso v. State, 857 P.2d 802 (Okl.Cr. 1993), we addressed
the situation which arises when a defendant does not wish to pursue
his direct appeal. Here, we are presented with a problem peripherally
addressed in Grasso: whether a criminal defendant can waive the
presentation of mitigating evidence without running afoul of the ban
against arbitrary and unreliable application of the death penalty
implicit in the Eighth Amendment to the United States Constitution.
See Id., 857 P.2d at 814 n. 5 (Chapel, J., Specially Concurring). We
hold he can.
Appellant's conviction in the murders of two teenage boys, William Von
Eric Domer (CRF-91-1) and Mark Anthony McLaughlin (CRF-91-2)
culminates a decades-long string of brutal, sadistic assaults.
In providing a factual basis for the Domer murder, Appellant told the
court: "Basically, I picked the boy up, took him out to a secluded
area, beat him, and then shot him." He accomplished this on February
17, 1987, by posing as a police officer, picking up the 15-year-old
Domer in Arkansas, handcuffing and shackling him, and transporting him
across the state line to Leard Pond near Pocola in LeFlore County,
Oklahoma. There, he pulled down the boy's pants and underwear and
began beating him with a paddle. When Domer resisted, he pulled up the
boy's pants, got him out of the car, walked him to a nearby cemetery,
and shot him twice in the back with a .25 caliber semiautomatic
pistol. He then put the body in the pond.
The Mark Anthony McLaughlin murder occurred November 11, 1990
(Appellant had been in prison for a non-related offense in the
interim). Appellant told the court: "Impersonating an officer, I
picked him up in Van Buren [Arkansas], shackled him, took him out to
Leard Pond, beat him, shot him, and then put him in the pond." As with
Domer. Appellant first pulled down McLaughlin's pants and underwear
and beat him, this time with a handle of a plunger used to unstop
clogged drains and toilets. After the beating, he pulled up the
14-year-old boy's pants, got him out of the car and shot him once in
the back with a .22 caliber pistol as they walked toward the pond. He
would have shot him again, but the gun jammed. In each case, he had
rented a car and had gone out specifically looking for someone to
beat. He told investigators after his arrest that if he had not been
caught, he would have killed again.
Appellant was apprehended by Arkansas authorities on December 9, 1990.
Earlier that evening, Appellant had again posed as a police officer
and had "arrested" Ross Allen Ferguson, who had recently graduated
from high school. He transported the handcuffed and shackled Ferguson
to an isolated place, pulled down his pants and underwear, and beat
him with the same plunger handle he had used on McLaughlin. After the
beating, he got Ferguson out of the car and began walking him down the
road. Ferguson was aware of the McLaughlin murder, and asked Appellant
if he were going to shoot him now. Appellant smiled and said he would
not shoot Ferguson; he then stabbed him. Ferguson pretended to be dead
and allowed himself to be dragged to a nearby pond, where Appellant
removed the handcuffs and shackles. Ferguson then was able to surprise
Appellant, run up to the car, drive it away and notify authorities.
Appellant was arrested near the scene some 45 minutes later.
Appellant was returned to Oklahoma in late January 1991. He ignored
his court-appointed attorney's advice and told authorities details of
each murder. He also told them he wanted to receive the death penalty,
preferring it to a lifetime in prison. The magistrate ordered
Appellant evaluated to determine competency. After a hearing at which
he was determined competent, Appellant waived preliminary hearing on
February 13, 1991. Despite the earlier determination of competency and
against the protests of both the prosecutor and Appellant's attorney,
the trial court again ordered a "full psychological evaluation at
Eastern State Hospital upon an application to determine competency,"
appointing an amicus curiae to represent Appellant during the
competency proceedings. Appellant was again declared competent. The
next day, on March 12, 1991, Appellant pled guilty to both murders.
The court ordered a pre-sentence investigation.
At a sentencing hearing on April 4, 1991, the court found three
aggravating circumstances: Appellant had previously been convicted of
a violent felony (21 O.S. § 701.12 [21-701.12](1)); the murders were
especially heinous, atrocious or cruel (21 O.S. § 701.12
[21-701.12](4)); and Appellant posed a continuing threat to society
(21 O.S. § 701.12 [21-701.12](7)). Formal sentencing was delayed for
the preparation of a presentence investigation until April 12, 1991,
at which time Appellant was sentenced to die by lethal injection.
Appellant made it clear he did not want to appeal his convictions;
indeed, he signed a waiver to that effect the day of formal
sentencing.1 The trial court on May 7, 1991, appointed the
Oklahoma Indigent Defense System to represent him on appeal. This
Court on July 9, 1991, remanded for an evidentiary hearing to
determine Appellant's representation and to determine whether
Appellant had in fact waived all appeals but his mandatory sentence
review. The trial court filed its Findings and Conclusions with this
Court on July 29, 1991, observing Appellant "has stated he wishes to
waive all appeals other than the mandatory review of his sentence. He
has not retracted those statements and this is his position even as of
today." Despite that declaration, the trial court found there were
issues which should be raised; and decided "he should be allowed a
direct appeal of all issues in this matter."2 This Court
granted an appeal out of time on August 29, 1991.3 However,
Appellant did not file an application to withdraw his plea of guilty,
which is a jurisdictional requirement for a certiorari appeal from a
plea of guilty. See 22 O.S. 1991, Ch. 18, App. Rules of the Court of
Criminal Appeals, Rule 4.1. Therefore, the case is only before this
Court for mandatory sentence review. See 21 O.S. 1991 § 701.13
At no time did Appellant present, or allow his attorney to present,
any mitigating evidence on his behalf. That is the subject of the
Appellant's attorney argues the Eighth Amendment to the United States
Constitution requires the sentencer to consider mitigating evidence to
reach a rational and individualized determination of the appropriate
sentence; and because Appellant refused to present such evidence, the
death sentence was imposed in an arbitrary and unreliable manner.
It is beyond question mitigating evidence is critical to the sentencer
in a capital case. See Skipper v. South Carolina, 476 U.S. 1, 106
S.Ct. 1669, 90 L.Ed.2d 1 (1986); Lockett v. Ohio, 438 U.S. 586, 98
S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, none of the United States
Supreme Court cases cited by Appellant deal with the situation which
occurs when a defendant willingly and knowingly refuses to place any
mitigating evidence before the sentencer.
Appellant does not contest a defendant may waive his right to present
mitigating evidence. We agree. See Singleton v. Lockhart, 962 F.2d
1315, 1322 (8th Cir. 1992) (In dealing with the issue of incompetent
counsel, the court stated: "If a defendant may be found competent to
waive the right of appellate review of a death sentence, we see no
reason why a defendant may not also be found competent to waive the
right to present mitigating evidence that might forestall the
imposition of such a sentence in the first instance."); Silagy v.
Peters, 905 F.2d 986, 1008 (7th Cir. 1990) (Discussing a defendant's
right to proceed pro se, the court observed: "The implication of the
[Supreme] Court's decision in Blystone [v. Pennsylvania, 494 U.S. 299,
110 S.Ct. 1078, 108 L.Ed.2d 255 (1990)], then, is that one can choose
to forego the presentation of mitigation evidence even over the
contrary advice of counsel and warnings of the court."); Clark v.
State, 613 So.2d 412, 413 (Fla. 1992).4 However,
Appellant's attorney argues that to ensure a sentence is imposed in a
constitutionally reliable manner, the State must ensure mitigating
evidence is presented even if it is against the wishes of the
The argument is not without authority. See State v. Koedatich, 112
N.J. 225, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct.
813, 102 L.Ed.2d 803 (1989); Morrison v. State, 258 Ga. 683, 373
S.E.2d 506 (1988), cert. denied, 490 U.S. 1012, 109 S.Ct. 1658, 104
L.Ed.2d 172 (1989). However, there are countervailing arguments that
persuade us no constitutional violation occurs if no mitigating
evidence is presented in a defendant's behalf.
Initially, a rule requiring the presentation of mitigating evidence
would not be enforceable. Even if the court could force an attorney to
attempt to present mitigating evidence, it cannot force an unwilling
defendant to provide that evidence to his attorney. See Gray v. Lucas,
677 F.2d 1086, 1094 (5th Cir. 1982), cert. denied, 461 U.S. 910, 103
S.Ct. 1886, 76 L.Ed.2d 815 (1983) (Noting petitioner steadfastly
maintained that he did not want anyone to testify on his behalf and
refused to identify any witnesses; court said the refusal did not
negate the attorney's duty to investigate, but added "the scope of
that duty was limited by Gray's refusal"); see also Hamblen v. State,
527 So.2d 800, 804 (Fla. 1988) ("there is no power that could have
compelled [a defendant] to cooperate and divulge such information.").
This holding is consistent with past holdings of this Court. See e.g.,
Brown v. State, 871 P.2d 56, 76 (Okl.Cr. 1994) (In discussing an
appellant's allegation trial counsel was ineffective when an appellant
failed to inform him of possible mitigating evidence, we said "[t]rial
counsel cannot be ineffective for failing to raise claims as to which
his client has neglected to supply the essential underlying facts when
those facts are within the client's possession; clairvoyance is not
required of effective trial counsel." (quoting Dooley v. Petsock, 816
F.2d 885, 890-91 (3d Cir. 1987)).
Additionally, to reverse a sentence because a defendant presented no
mitigating evidence could be counterproductive. As the California
Supreme court has observed:
knowledgeable defendant desiring to avoid the death penalty could
[proceed prose] and then decline to present any mitigating evidence at
the penalty phase, secure in the knowledge that any death judgment
would be reversed by this court, while a defendant genuinely desiring
death could circumvent the rule by presenting a bare minimum of
mitigating evidence. A rule so easily evaded or misused is clearly
unsound. The sanction of appellate reversal is not the answer, nor has
any alternative method been suggested to compel an unwilling defendant
to present an effective penalty defense.
While the United States Supreme Court has frequently stated that the
Eighth Amendment and evolving standards of societal decency impose a
high requirement of reliability on the determination that death is the
appropriate penalty in a particular case [citations], the high court
has never suggested that this heightened requirement for reliability
requires or justifies forcing an unwilling defendant to accept
representation or to present an affirmative penalty defense in a
capital case. . . . . Rather, the required reliability is attained
when the prosecution has discharged its burden of proof at the guilt
and penalty phases pursuant to the rules of evidence and within the
guidelines of a constitutional death penalty statute, the death
verdict has been returned under proper instructions and procedures,
and the trier of penalty has duly considered the relevant mitigating
evidence, if any, which the defendant has chosen to present. A
judgment of death entered in conformity with these rigorous standards
does not violate the Eighth Amendment reliability requirements.
People v. Bloom, 48 Cal.3d 1194, 774 P.2d 698, 718-19, 259 Cal. Rptr.
669, 688-90 (1989). See also People v. Sanders, 51 Cal.3d 471, 797
P.2d 561, 594, 273 Cal. Rptr. 537 (1990); People v. Lang, 49 Cal.3d
991, 782 P.2d 627, 652-53, 264 Cal. Rptr. 386 (1989). The same
philosophy was enunciated in Hamblen, where the Florida Supreme Court
Society's interest in the proper administration of justice is
preserved by giving a defendant the right freely to present evidence
in mitigation, by requiring the sentencing body to find aggravating
factors before imposing the death penalty, and by requiring that a
sentence of death be reviewed by this court. These practices are to
assure that the death penalty will not be imposed arbitrarily.
Hamblen, 527 So.2d at 804 (quoting People v. Silagy, 101 Ill.2d 147,
181, 77 Ill.Dec. 792, 461 N.E.2d 415, 431-32 (1984), cert. denied, 469
U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984)).
We therefore hold Appellant's decision not to present mitigating
evidence did not deprive the State of its interests in seeing that his
sentence was imposed in a constitutionally acceptable manner. The
prosecution was required to present evidence of aggravating
circumstances, which the court was required to find beyond a
reasonable doubt before it could impose the death sentence; the court
was required to afford Appellant the opportunity to present mitigating
evidence, which it did; and this Court is required to review the
evidence in this case to determine if the sentence was imposed in an
arbitrary or unreliable manner.
Appellant points to Koon v. Dugger, 619 So.2d 246 (Fla. 1993), where
the Florida Supreme Court established a prospective rule dealing with
refusal to present mitigating evidence.5 We decline to
adopt such a rule, as we foresee problems which would inevitably occur
were we to force trial counsel to produce mitigating evidence when he
receives absolutely no information from his client which he could use
as a starting point to gather mitigating evidence.6
Nonetheless, we find merit in establishing guidelines to assist trial
courts in dealing with a situation such as the one presented here.
These guidelines must be used both in guilty/nolo contendere pleas and
in a trial when a defendant refuses to allow the presentation of
mitigating evidence in the sentencing stage.
Pursuant to Grasso, the court must fully determine a defendant is
competent to waive the right to an appeal. There, we said:
defendant sentenced to death will be able to forego a state appeal
only if he has been judicially determined to have the capacity to
understand the choice between life and death and to knowingly and
intelligently waive any and all rights to appeal his sentence.
Id., 857 P.2d at 806 (quoting Franz v. State, 296 Ark. 181, 754 S.W.2d
839, 843 (1988)). This is the basic standard we use here. Toward that
end, the court must ensure the defendant has an understanding of his
or her rights both in the plea process and in the sentencing process:
The court must inform the defendant of the right to present mitigating
evidence, and what mitigating evidence is.
The court must inquire both of the defendant and his attorney (if not
pro se) whether he or she understands these rights.
The court should also inquire of the attorney if he or she has
attempted to determine from the defendant whether there exists any
evidence which could be used to mitigate the aggravating circumstances
proven beyond a reasonable doubt by the prosecution.
If such information has been given, the attorney must advise the court
what that mitigating evidence is; if the defendant has refused to
cooperate, the attorney must relate that to the court.
The trial court must inquire of a defendant and make a determination
on the record whether the defendant understands the importance of
mitigating evidence in a capital sentencing scheme, understands such
evidence could be used to offset the aggravating circumstances proven
by the prosecution in support of the death penalty, and the effect of
failing to present that evidence.
After being assured the defendant understands these concepts, the
court must inquire of the defendant whether he or she desires to waive
the right to present such mitigating evidence.
Finally, the court should make findings of fact pursuant to Grasso of
the defendant's understanding and waiver of rights.
By using these guidelines, trial courts can provide valuable
information and help preserve the record for the mandatory sentence
Appellant's attorney also argues the absence of mitigating evidence
deprives this Court of its ability to perform its mandatory sentence
review. We disagree. Section 701.13 of Title 21 reads in pertinent
Whenever the death penalty is imposed, and upon the judgment becoming
final in the trial court, the sentence shall be reviewed on the record
by the Oklahoma Court of Criminal Appeals. . . . .
With regard to the sentence, the court shall determine:
Whether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor; and
Whether the evidence supports the jury's or judge's finding of a
statutory aggravating circumstance as enumerated in Section 701.12 of
With this directive in mind, we shall examine the remainder of the
testimony, the court-ordered presentence investigation and other
evidence presented at Appellant's sentencing hearings.
Appellant's record shows he has been involved in violent behavior
since 1966. His prior convictions consist of six (6) convictions for
kidnapping; four (4) convictions for assault and battery on a minor
with a deadly weapon; one (1) conviction for attempted murder; and two
(2) convictions for felonious possession of a firearm. This evidence
more than supports the trial court's finding Appellant has been
convicted previously of a violent felony (21 O.S. § 701.12
[21-701.12](1)) in both CRF-91-1 and CRF-91-2.
As noted above, Appellant told investigating authorities he would have
continued his sadistic practices in the future had he not been
apprehended. This was re-enforced by Appellant's own statement at the
hearing, when he told the court "It is also accurate to say that had I
not been caught, I would be doing the same thing today." Appellant
also told authorities he intended to use a butane fireplace lighter
found in his glove compartment to torture future victims.
Additionally, the prosecution presented evidence from Robert Hill, a
North Carolina resident. Hill testified that in 1976, when he was 15
years old, Appellant offered him a ride. As they reached Hill's
destination and Hill attempted to get out of the car, Appellant locked
Hill's door, grabbed him and shoved him head first into the
floorboard, telling Hill to put his hands behind his back. When the
boy refused, Appellant hit him at least six times with a claw hammer.
Despite these repeated blows, Hill managed to stumble from the car and
begin to run away. Appellant backed his car up in an attempt to pursue
Hill, then sped off as Hill reached a place of safety. This evidence
also amply supports the trial court's finding Appellant would likely
commit future acts of violence which would constitute a continuing
threat to society (21 O.S. § 701.12 [21-701.12](7)) in both CRF-91-1
The trial court also found in each case the murder was especially
heinous, atrocious or cruel (21 O.S. § 701.12 [21-701.12](4)). This
requires a more thoughtful look at the evidence. The medical examiner
testified that both Domer and McLaughlin were likely killed instantly
by the gunshots; then after they were dead were dragged to the pond
and put in the water. Therefore, for this aggravating circumstance to
stand, there must be evidence of torture or serious physical abuse
before that point.
In McLaughlin's case, there is little doubt torture and serious
physical abuse occurred before he was shot. The medical examiner
reported McLaughlin's wrists and ankles bore contusions and abrasions
from the handcuffs and leg irons Appellant had bound him with. In
addition, there was considerable hemorrhaging on the boy's buttocks,
indicating hard blows made by a rod-shaped instrument. The medical
examiner noted the presence of least four or five such injuries, and
Appellant told authorities the boy "received quite a few licks." This
evidence of Appellant's sadistic behavior towards McLaughlin supports
the trial court's finding in CRF-91-2 that torture or serious physical
abuse occurred before death.
The evidence concerning Domer is less plentiful. Appellant told
authorities the boy was "calm" when they arrived at the pond.
Furthermore, although Appellant began to beat the boy, he resisted the
beating by turning to a position where Appellant could not paddle him.
Appellant himself confirmed this, saying "he didn't let me whip him
long enough to cry," adding later "he was obviously determined not to
take — uh — a beating." Appellant also told authorities the boy did
not know he had a pistol; Appellant had not displayed it before
shooting Domer in the back. He also told authorities the boy was "dead
when he hit the ground." Based on this, we find insufficient evidence
to support the trial court's findings in CRF-91-1 that the murder of
Domer was especially heinous, atrocious or cruel.
Despite Appellant's refusal to present mitigating evidence, the trial
court ordered a pre-sentence investigation, which was included in the
record. An examination of that record reveals discussions of versions
of the murders, criminal record, personal and family data, his
residences, education background, employment history, health, military
history, financial condition and future plans. It shows nothing by way
of mitigation. The prosecutor made a statement to the court at the
conclusion of the sentencing hearing during which he said:
these two cases here today, I've looked at the facts, the
circumstances, and all the evidence that surrounds those two murders.
I've studied this defendant, his background, his remarks, the reports
that we have on him, competency and otherwise. And without hesitation,
I can tell this Court that I find no mitigating circumstances
whatsoever in either murder.
(4-4 Tr. 111). In response, Appellant's attorney told the court he
"cannot take issue with anything [the prosecutor] has said," adding
"The defendant is bound to show mitigation in order for the Court to
consider some other form of punishment, and we have shown none." (4-4
From this information, we conclude there was no real mitigating
evidence to be presented to the trial court. In light of this lack of
mitigation, and examining the record as we are required to do by 21
O.S. 1991 § 701.13 [21-701.13](C), we find in CRF-91-2 all three
aggravating circumstances are supported by the record, and the
sentence of death was not imposed under the influence of passion,
prejudice, or any other arbitrary factor.
In CRF-91-1, even though we have found insufficient evidence to
support the finding the murder was especially heinous, atrocious or
cruel, upon reweighing the remaining evidence we find the remaining
two aggravating circumstances support the court's judgment of death;
and find the sentence of death was not imposed under the influence of
passion, prejudice, or any other arbitrary factor.
As another subproposition, Appellant's attorney contends the trial
court failed to consider and weigh the mitigating evidence presented
to the court. This assertion is not supported by the record. Even
though the court took a relatively short time to make a decision after
all the evidence was presented,7
it also delayed formal sentencing for over a week. At that time he
observed he had ordered a presentence investigation,8
Statutes do not require a presentence investigation in a capital case;
but the Court ordered the presentence in an effort to receive other
information about this defendant that was not presented in the case.
And that has to do with his background history, his growing up, and
things such as that that the Court feels is important to consider in
entering a sentence in this type of case.
(4-12 Tr. 03-04). This indicates the court carefully studied the
information available to him at the time he sentenced Appellant to
Accordingly, Appellant's first proposition is without merit.10
For his second proposition, Appellant's attorney contends the trial
court violated the Eighth Amendment by using the same evidence to find
the aggravating circumstances of prior violent felony and continuing
We first reject the argument the evidence to prove each was exactly
the same. The prior felonies were used in support of the continuing
threat; but so also was Appellant's own statements to both authorities
and the trial court he would have continued his sadistic practices in
the future had he not been apprehended. He not only would have
continued them, he would have expanded his methods of torture: he told
authorities he intended to use a butane fireplace lighter found in his
glove compartment to torture future victims.
In any case, we have rejected this argument before. Berget v. State,
824 P.2d 364, 376-77 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 113
S.Ct. 124, 121 L.Ed.2d 79 (1992); Pickens v. State, 850 P.2d 328, 337
(Okl.Cr. 1993); Smith v. State, 819 P.2d 270, 278 (Okl.Cr. 1991),
cert. denied, 504 U.S. 959, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992). We
do so again. This proposition is without merit.
Appellant's attorney argues in the third proposition the orders
finding Appellant competent to stand trial, to plead guilty and waive
rights are erroneous. The contention is the trial court was not
required to determine if Appellant had a rational and factual
understanding of the proceedings against him. Appellant's attorney
also argues the presumptions and burden of proof in Oklahoma's
competency statutes are unconstitutional. The right to appeal this
issue has been waived by failure to appeal the verdicts on competency
in a timely manner after the court's verdict.
We find the arguments to be without merit. The record is saturated
with documents showing Appellant both understood the nature of the
charges against him and was able to assist his attorney in his
defense. During the first competency hearing, evidence showed
Appellant completed a form containing approximately five pages of
questions asking him to describe court proceedings; who his attorney
was; the nature of the discussions he would have with an attorney in a
legal situation; and the nature and role of the judge. Authorities who
had conversations with Appellant found him to be rational and able to
understand the nature of the proceedings against him.
In preparation for the second hearing, Appellant was examined by a
psychologist and a medical doctor and another psychologist who
performed testing on Appellant. Dr. Jeanne Russell, a psychologist,
testified Appellant completely understood the nature of the charges
against him. He was not delusional and did not have hallucinations.
Appellant also told authorities he had been examined seven or eight
times to determine competency in other states during the course of
other criminal proceedings; he was always found competent.
Appellant's case presents a unique situation. Here, there was never
any real question of his competency; rather, the court took extra
precautions to ensure that the guilty plea Appellant had announced he
was going to enter could withstand the intense scrutiny that
accompanies all capital cases. Under whatever standard by which this
Court would choose to evaluate him, the evidence — in both competency
hearings, during his guilty plea and sentencing — showed unequivocally
Appellant was competent, as he had a rational understanding of the
nature of the charges against him and was able to consult with his
attorney with a reasonable degree of rational understanding. See Dusky
v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
Appellant's attorney also claims the statute is unconstitutional, as
it shoulders a criminal defendant with the burden of proof; and
requires him to prove incompetency by clear and convincing evidence.
Appellant's counsel conceded in oral argument the issue of the
competency statute is technically not a part of the mandatory sentence
review. However, we note its inclusion here pursuant to the discussion
in Grasso concerning a defendant's competency to waive an appeal, and
consider it in that context.
This Court decided in Cooper v. State, 889 P.2d 293 (Okl.Cr. 1995) the
provisions of 22 O.S. 1991 §§ 1175.1 [22-1175.1] through 1175.8 are
constitutional and the allocation of a clear and convincing burden of
proof to a criminal defendant "is not subject to proscription under
the Due Process clause, because it does not `offend[ ] some principle
of justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental.' Medina [v. California], 505 U.S. [___]
at ___, 112 S.Ct.  at 2577, 120 L.Ed.2d  at 363 [(1992)]
(quoting Patterson [v. New York], 432 U.S.  at 202, [97 S.Ct.
2319, 53 L.Ed.2d 281 (1977)])." We find the Appellant was afforded the
process due him in these proceedings, and therefore reject this third
proposition of error.
The fourth and last proposition of error presented deals once again
with attacks on the constitutionality of the "continuing threat" and
"heinous, atrocious or cruel" aggravating circumstances. The argument
here, as before, is the terms are unconstitutionally vague.
Appellant's attorney concedes this Court has repeatedly rejected the
argument the "continuing threat" aggravator is unconstitutionally
vague, citing Boyd v. State, 839 P.2d 1363, 1371 (Okl.Cr. 1992) and
Munson v. State, 758 P.2d 324, 335 (Okl.Cr. 1988), cert. denied, 488
U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989). Likewise, counsel
cites Nuckols v. State, 805 P.2d 672, 674 (Okl.Cr. 1991) to show us we
have previously rejected the argument the "heinous, atrocious or
cruel" aggravator is unconstitutionally vague. We agree with those
assessments, and see no need to revisit either argument.
This proposition is also without merit.
Accordingly, the Judgments and Sentences of the District Court are
The trial court noted in its July 29, 1991, Findings and Conclusions
that Appellant "has stated he wishes to waive all appeals other than
the mandatory review of his sentence. He has not retracted those
statements and this is his position even as of today." This finding is
supported by the record. The mandatory sentence review is now
completed. IT IS THEREFORE THE ORDER OF THIS COURT that the mandate be
issued immediately. Further, it is the order of this Court that the
execution of the judgment and sentence of death of the District Court
of LeFlore County be carried out on MAY 26, 1995. 22 O.S.Supp. 1992 §
JOHNSON, P.J., and LANE, J., concur.
CHAPEL, V.P.J., specially concurs.
STRUBHAR, J., concurs in results.
The signed affidavit acknowledges he had pled guilty to and been
convicted of two murders and sentenced to death in each one; that he
was represented at all stages during the cases by an attorney; that
the attorney had advised Appellant of "all my legal and constitutional
rights at all phases and I have acted freely, knowingly and
voluntarily at all phases and at all times"; that he had instructed
his trial attorney not to pursue a direct appeal of his sentences,
adding "I hereby waive my right to appeal freely and voluntarily with
the full and complete understanding that this decision will hasten my
execution. It is my desire that I be executed at the earliest possible
date allowed by law"; and that he "strictly and expressly forbid[s]
any person, persons or entities other than [trial counsel] to
represent me and my interests in these cases. It is my desire that
[trial counsel] alone direct the remnants of my defense." (CRF-91-1
O.R. 92-93); (CRF-91-2 O.R. 92-93).
At the outset, we compliment the Hon. Ted A. Knight, trial judge, for
the excellent job of preserving this record for appeal. The court went
out of his way to ensure the record before this Court was thorough, as
well as taking great pains to ensure that all of Petitioner's rights
were protected. We also compliment the court for his prophetic ruling
two years before Grasso that Petitioner's "appeal," in the form of a
mandatory sentence review, could not be waived, and must be conducted
by this Court.
The case was not at issue in this Court for nearly three (3) years
after that Order. Appellant filed several applications for extensions
of time in which to file the brief-in-chief. Those applications were
granted before this Court began casting a wary eye toward numerous
extensions. Appellant's attorney, as chief of the Capital Direct
Appeals Division of the Oklahoma Indigent Defense System, then filed
an Application for Order Setting Briefing Schedule with this Court
requesting a final briefing schedule be set in ten (10) capital cases
to allow timely filing in each case. Such an order was issued on May
17, 1993. In that order, Appellant's brief-in-chief was to be filed
with the Clerk of this Court no later than April 15, 1994. Appellant's
brief was filed on that date. The State's brief-in-chief was filed
June 14, 1994.
Of course, the Supreme Court has not required a defendant to present
mitigating evidence. Rather, a survey of relevant cases reveals
statements concerning the ability of a defendant to present such
evidence are phrased permissively. See e.g., Blystone v. Pennsylvania,
494 U.S. 299, 307 n. 5, 110 S.Ct. 1078, 1083 n. 5, 108 L.Ed.2d 255
(1990) (". . . . The dissent ignores the fact that the three-Justice
opinion in Jurck concluded the Texas statute fulfilled the requirement
of individualized sentencing precisely because one of the special
findings had been construed by Texas courts to permit the
consideration of mitigating evidence."); McCleskey v. Kemp, 481 U.S.
279, 305-06, 107 S.Ct. 1756, 1774-75, 95 L.Ed.2d 262 (1987) ("States
cannot limit the sentencer's consideration of any relevant
circumstance that could cause it to decline to impose the penalty. In
this respect, the State cannot channel the sentencer's discretion, but
must allow it to consider any relevant information offered by the
defendant."); Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct.
1669, 1672-73, 90 L.Ed.2d 1 (1986) ("The resulting death sentence
cannot stand, although the State is of course not precluded from again
seeking to impose the death sentence, provided that it does so through
a new sentencing hearing at which petitioner is permitted to present
any and all relevant mitigating evidence that is available."); Eddings
v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876-77, 77, 71
L.Ed.2d 1 (1982) ("Just as the State may not by statute preclude the
sentencer from considering any mitigating factor, neither may the
sentencer refuse to consider, as a matter of law, any relevant
mitigating evidence."); Id., 455 U.S. at 115 n. 10, 102 S.Ct. at 877
n. 10 ("We note that the Oklahoma death penalty statute permits the
defendant to present evidence `as to any mitigating circumstances.'
Okla. Stat., Tit. 21, Sec 701.10 (1980). Lockett requires the
sentencer to listen."); Lockett v. Ohio, 438 U.S. 586, 604. 98 S.Ct.
2954, 2964-65, 57 L.Ed.2d 973 (1978) (". . . we conclude that the
Eighth and Fourteenth Amendments require that the sentencer, in all
but the rarest kind of capital case, not be precluded from
considering, as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.")
Under this procedure, when a capital defendant, against counsel's
advice, refuses to present or permit the presentation of mitigating
evidence in the penalty phase, defense counsel must inform the trial
court on the record of that decision. Counsel must also indicate based
on his investigation whether he reasonably believes mitigating
evidence exists, what it is, and whether it could be presented. The
trial court should then require the defendant to confirm on the record
his counsel has discussed these issues with him and state that despite
his counsel's wishes, the defendant desires to waive presentation of
penalty phase evidence. Id. at 250.
Indeed, the case sub judice illustrates what could happen in a more
extreme example. Appellant had no ties to Oklahoma; he had no
relatives even in Arkansas where he was living. Despite this, his
counsel in oral argument commented he did cooperate with her to the
extent he gave some background concerning family and other
information. Had he chosen to, he could have completely "stonewalled,"
refusing to give any information whatsoever. Had he done so, trial
counsel would almost literally have no starting point from which to
gather any information whatsoever. Counsel cannot advise a court of
information he cannot gather.
The record indicates the trial court recessed for approximately 25
minutes before returning with its findings.
Appellant's attorney asserts the trial court did not consider this
presentence investigation in determining punishment. This statement is
simply not supported by the record. The presentence investigation was
ordered on March 12, 1991, at the conclusion of the hearing at which
Appellant pled guilty; the report was dated April 1; the sentencing
hearing at which evidence was produced was held April 4; formal
sentencing was held April 12. Therefore, there was plenty of time for
the court to review the report. That the court did so is clearly
indicated in the transcript of formal sentencing. Nor are we persuaded
that the few omissions in the report would have influenced the court.
While the court did not have a criminal record from the Federal Bureau
of Investigation, the report clearly showed he had such a record;
therefore, at most the record would have shown Appellant had more
criminal convictions than the record before the court revealed. This
could hardly be described as helpful. Nor do we think the court would
have been swayed by official notification from learning institutions
that Appellant had completed truck driving school or high school. By
the same token, statements from past employers to verify that
Appellant held jobs for brief periods of time would not have swayed
any sentencer. Finally, official verification Appellant entered the
Navy in 1959 and was kicked out in 1962 with a reduction in rank after
spending time in the brig for convictions of assault and carrying a
concealed deadly weapon would have done nothing in the way of
mitigation for consideration by the trial court.
Appellant's attorney also notes in passing he had requested the death
penalty. We mention this point only to show this desire had no bearing
on the court's determination of punishment. In the trial judge's
report required by 21 O.S. 1991 § 701.13 [21-701.13](A), the judge
made the following comment:
trial court observes this to be a very unusual situation where accused
confesses to the crimes and desires the death penalty. However, when
the evidence was presented and considered, it is very clear that this
defendant should receive the death sentence.
This conclusion is reached without any consideration to this
defendant's desire for death. The evidence presented at the sentencing
hearing sufficiently established three statutory aggravating
circumstances. The evidence in favor of the death sentence, in the
trial judge's opinion, was overwhelming.
This further supports the determination Appellant's sentence was not
imposed under the influence of passion, prejudice or other arbitrary
As another subproposition, Appellant's attorney argued there was
mitigating evidence which could have been presented at trial. In
support of this, she filed with this Court a motion to supplement the
record with an affidavit from Petitioner's aunt, who could have
testified from personal knowledge about Petitioner's background and
family history; and an affidavit of a Tulsa psychologist, who would
express personal opinions about Petitioner's early childhood, his
psychosocial and pathology development and his potential for future
dangerousness. This Court denied that motion. Petitioner's attorney
has missed the point. She has not argued whether a criminal defendant
can waive his right to present mitigating evidence. Rather, she argued
the court was constitutionally required to hear mitigating evidence.
whether the defendant wished it or not. In light of our holding above
there is no constitutional requirement compelling the introduction of
mitigating evidence, the attorney's attempt to do so on appeal would
be to contravene Petitioner's expressed wishes no such evidence be
presented, which she virtually concedes on appeal he has a right to
CHAPEL, Vice Presiding Judge, specially concurring:
¶1 I believe a competent defendant in a capital case can waive his
right to direct appeal.1 However. I cannot agree with the
majority's reliance on Cooper v. State2 and the discussion
regarding due process which is contained in dicta in the Cooper
opinion. In Cooper I concurred in result without writing because of
the analysis of the Due Process Clause. I now find Cooper cited here
for that purpose, and I must write to state my disagreement with the
analysis in Cooper.
¶2 This issue is not before us; this Court need not attempt to
precisely delineate the boundaries of due process in order to
determine the validity of our competency statutes. Nevertheless, the
majority correctly notes the difficulty in defining "due process"
precisely but provides an unnecessarily narrow view of the principle.
¶3 The United States Supreme Court has said:
Under our constitutional system, courts stand against any winds that
blow as havens of refuge for those who might otherwise suffer because
they are helpless, weak, outnumbered, or because they are
non-conforming victims of prejudice and public excitement. Due process
of law, preserved for all by our Constitution, commands that no such
practice as that disclosed by this record shall send any accused to
his death. No higher duty, no more solemn responsibility, rests upon
this Court, than that of translating into living law and maintaining
this constitutional shield deliberately planned and inscribed for the
benefit of every human being subject to our Constitutional — of
whatever race, creed or persuasion."3
¶4 It is in this context that the Supreme Court declared that the Due
Process Clause of the Fourteenth Amendment was "intended to guarantee
procedural standards adequate and appropriate, then and thereafter, to
protect, at all times, people charged with or suspected of crime by
those holding positions of power and authority."4 Due
process is "a summarized constitutional guarantee of respect for those
personal immunities which . . . are so rooted in the traditions and
conscience of our people as to be ranked as fundamental, or are
implicit in the concept of ordered liberty." [citations omitted]5
¶5 The Supreme Court has "very narrowly" defined the "category of
infractions that violate fundamental fairness" and thus violate due
process.6 However, within those parameters, the Court's
scope of review must "ascertain whether [proceedings] offend those
canons of decency and fairness which express the notions of justice of
English-speaking peoples even toward those charged with the most
heinous offenses."7 "The Due Process Clause places upon
this Court the duty of exercising a judgment, within the narrow
confines of judicial power in reviewing State convictions, upon
interests of society pushing in opposite directions."8
¶6 This Court has referred to due process as "that fundamental
fairness essential to every concept of justice."9 "A fair
and impartial administration of justice is one of the most sacred
rights of the citizen, and it is the duty of the courts to see that
the constitutional rights of the accused shall not be violated;
however guilty he may be, he is entitled to a fair trial according to
the due and orderly course of law."10
¶7 In various contexts, due process has been held to require: 1) that
invasive or brutal procedures cannot extract evidence from a prisoner
to support his conviction;11 2) in the context of
involuntary confessions, that a confession may not be coerced but must
be the unconstrained product of free choice;12 3) that,
upon arrest, a person must be brought before a magistrate within a
reasonable time;13 4) that a statute be explicit enough to
inform those subject to it what conduct will render them liable to its
penalties, and couched in terms not so vague that persons of common
intelligence must necessarily guess at its meaning and differ as to
its application;14 5) that, upon arrest or conviction, any
proceedings for revocation of bond shall at the least afford notice
and an opportunity for a hearing, and orders shall not issue ex parte;15
6) in criminal proceedings, that a defendant have competent counsel
(or validly waive counsel), have an opportunity to confront all
witnesses against him and to testify and bring witnesses on his own
behalf, be advised of the charges against him, have a right to a
public trial by jury in the locality in which the crime was committed,
have the jury properly instructed, and have the assistance of experts
necessary for his defense (upon showing of need);16 7) that
a defendant should not be tried before the jury in shackles or bonds;17
8) that, in a criminal prosecution, the State shall provide the
defense exculpatory material;18 9) that, at trial,
co-defendants with mutually antagonistic defenses shall not be forced
to participate in a joint trial;19 10) that the State
refrain from engaging in egregious and overzealous prosecution which
may affect a jury verdict and thus deprive a defendant of his right to
a fair trial;20 11) that the State's knowing use of
perjured testimony to convict a defendant result in a negation of the
process normally afforded by notice and hearing;21 12) that
where a case is submitted to a jury on alternative theories and one of
those theories is infirm, the conviction must be set aside;22
13) in juvenile proceedings, that juveniles receive protection of
appropriate procedures in both juvenile court and reverse
certification proceedings;23 14) in mental incompetency
proceedings, that, at a minimum, the ward receive written notice and a
hearing in which the rights afforded a defendant at trial apply.24
¶8 This list is illustrative only and does not begin to exhaust the
myriad forms which due process may take. It clearly shows that while,
at a minimum, due process requires both notice and an opportunity for
a hearing according to established procedures, these elements cannot
satisfy or even accurately describe the parameters of the Due Process
Clause.25 This Court has held:
[W]e are not unmindful that sustaining procedural rules that [sic]
give form and symmetry to the law, but quite frankly we are inclined
to the principle that these are but means to the end of overall
justice, and where procedural rules become an obstacle to the
administration of justice or the attainment of its end in a case, we
would not hesitate to sweep them under the rug to reach the heart of
the matter. . . ." [citations omitted]26
¶9 Although I concur in the result reached by the majority, I am
unable to join in the narrow view of the Due Process Clause as set
forth in Cooper.
A defendant cannot waive his mandatory sentence review, which remains
a statutory obligation of this Court. Grasso v. State, 857 P.2d 802
889 P.2d 293, 66 O.B.J. 166, 170 (Okl.Cr. 1995).
Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 479, 84 L.Ed.
Chambers, 309 U.S. at 236, 60 S.Ct. at 476-77.
Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed.
183 (1952); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330,
332, 78 L.Ed. 674 (1934); Palko v. Connecticut, 302 U.S. 319, 325, 58
S.Ct. 149, 152, 82 L.Ed. 288 (1937).
Medina v. California, 505 U.S. ___, ___, 112 S.Ct. 2572, 2576, 120
L.Ed.2d 353 (1992); Dowling v. United States, 493 U.S. 342, 352, 110
S.Ct. 668, 674, 107 L.Ed.2d 708 (1990).
Rochin, 342 U.S. at 169, 72 S.Ct. at 208.
Id., 342 U.S. at 171, 72 S.Ct. at 209.
Mann v. State, 856 P.2d 992, 995 (Okl.Cr. 1993), cert. denied, 488
U.S. 877, 109 S.Ct. 193, 102 L.Ed.2d 163 (1988); In re Pate's
Petition, 371 P.2d 500, 505 (Okl.Cr. 1962), cert denied, 373 U.S. 915,
83 S.Ct. 1304, 10 L.Ed.2d 415 (1963); Lisenba v. California, 314 U.S.
219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941).
Ex parte Hollins, 54 Okl.Cr. 70, 14 P.2d 243, 246 (1932).
Rochin, 342 U.S. at 173, 72 S.Ct. at 210.
See, e.g., Culombe v. Connecticut, 367 U.S. 568, 581-84, 81 S.Ct.
1860, 1867-69, 6 L.Ed.2d 1037 (1961); Malinski v. New York, 324 U.S.
401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029 (1945); Brown v.
Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682
(1936); In re Pate, 371 P.2d at 505; Lyons v. State, 77 Okl.Cr. 197,
138 P.2d 142 (1943), aff'd, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481
Culombe, 367 U.S. at 584, 81 S.Ct. at 1869.
May v. State, 788 P.2d 408 (Okl.Cr. 1990); Whitney v. California, 274
U.S. 357, 368, 47 S.Ct. 641, 645-46, 71 L.Ed. 1095 (1926) (criminal
syndicalism). Whitney also holds that the Due Process Clause is not
violated where the state punishes speech which menaces the peace and
welfare of the state. 274 U.S. at 371, 47 S.Ct. at 646-47. This Court
cited Whitney when upholding a similar Oklahoma criminal syndicalism
statute in Shaw v. State, 76 Okl.Cr. 271, 134 P.2d 999 (1943).
Although the syllabus in Shaw suggests that due process is satisfied
by legal procedures which operate on all alike without subjecting an
individual to the arbitrary, unrestrained exercise of the powers of
government, the opinion does not discuss due process beyond quoting
the syllabus in Whitney.
Nauni v. Cannon, 628 P.2d 372 (Okl.Cr. 1981); Petition of Humphrey,
601 P.2d 103, 107 (Okl.Cr. 1979).
Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985);
Brown, 297 U.S. at 286, 56 S.Ct. at 465; Powell v. Alabama, 287 U.S.
45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932); Rogers v. State, 890
P.2d 959 (Okl.Cr. 1995); Green v. State, 881 P.2d 751, 752 (Okl.Cr.
1994); Ward v. State, 444 P.2d 255, 261 (Okl.Cr. 1968), cert. denied,
393 U.S. 1040, 89 S.Ct. 665, 21 L.Ed.2d 588 (1969); Hollins, 14 P.2d
French v. State, 377 P.2d 501, 502-3, 505 (Okl.Cr. 1962), overruled in
part, Peters v. State, 516 P.2d 1372, 1374 (Okl.Cr. 1973) (majority
opinion and Bussey, J., concurring).
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);
Sadler v. State, 846 P.2d 377 (Okl.Cr. 1993).
Neill v. State, 827 P.2d 884 (Okl.Cr. 1992).
McCarty v. State, 765 P.2d 1215, 1222 (Okl.Cr. 1988); Mooney v.
Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935)
(use of perjured testimony).
Hysler v. Florida, 315 U.S. 411, 413, 62 S.Ct. 688, 86 L.Ed. 932
(1942); Mooney, 294 U.S. at 112, 55 S.Ct. at 342.
Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117
(1931); Tibbs v. State, 819 P.2d 1372, 1373 (Okl.Cr. 1991)
(alternative theories of guilt).
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970);
M.L.R. v. State, 740 P.2d 1201 (Okl.Cr. 1987); Edwards v. State, 591
P.2d 313, 321-22 (Okl.Cr. 1979).
In re Guardianship of Deere, 708 P.2d 1123, 1126 (Okl.Cr. 1985).
Powell, 287 U.S. at 68, 53 S.Ct. at 64.
In re Pate, 371 P.2d at 518.
STRUBHAR, Judge, concurring in result.
¶1 I agree with the majority that the judgment and sentence in this
case should be affirmed. However, I write separately to address the
Majority's erroneous conclusion that a sentencer may impose the death
penalty without considering mitigating evidence and not run afoul of
the Eighth Amendment's bar against arbitrary and unreliable
impositions of the death penalty. See, Majority, op. at 510-12.
¶2 I agree with the Majority that a competent defendant may waive his
personal right to present mitigating evidence. See, 21 O.S. 1991 §
701.10 [21-701.10](C).1 I further agree that Appellant's
wishes not to present mitigating evidence in the instant case did not
deprive the State of Oklahoma of its interests that Appellant's
sentence be imposed in a constitutionally sound manner because
mitigating evidence was considered by the sentencer. See, Majority,
op. at 512.
¶3 However, I cannot agree that a sentencer may impose the death
penalty without considering mitigating evidence present in a case
simply because the defendant elects not to present any evidence in
mitigation. Under our statutory scheme, a sentencer may impose the
death penalty only if the aggravating circumstances proven beyond a
reasonable doubt outweigh the mitigating circumstances beyond a
reasonable doubt. See, 21 O.S. 1991 § 701.11 [21-701.11] If the
sentencer does not hear the mitigating evidence, it cannot discharge
its statutory duty. A reliable capital sentencing trial requires an
individualized determination on the basis of the character of the
individual and the circumstances of the crime. Therefore, the
sentencer should hear and consider all relevant testimony and evidence
in mitigation of punishment. Such a procedure not only protects the
interests of the accused, but also protects the interests of the State
of Oklahoma to enact and enforce a constitutional death penalty
¶4 As Judge Knight recognized in this case, his responsibilities were
much broader than Appellant's wishes, and the imposition of the death
penalty would be authorized only if, as here, the court satisfied
itself 1) that the existence of at least one statutory aggravating
circumstance was proven beyond a reasonable doubt, and 2) considering
all the facts and circumstances presented to the court, the death
sentence was the appropriate punishment. 21 O.S. 1991 § 701.11
¶5 In view of the concern for reliability inherent in our death
penalty procedures, including the mandatory sentence review by this
Court, see 21 O.S. 1991 § 701.13 [21-701.13](C), the trial court in a
case like this has an obligation to conduct an independent
investigation into the possible existence of evidence in mitigation.
Oftentimes, mitigating evidence such as youth, bouts of mental illness
and substance abuse will be apparent from the record without a
defendant supplying such information. The trial court here undertook
to inform itself about Wallace's background and evidence of mitigation
by ordering a pre-sentence investigation report prior to sentencing.2
Even though Judge Knight was under no obligation to order a
pre-sentence investigation report, he wisely did so. The report
contained mitigating evidence for the judge to consider. The record
reflects Judge Knight considered the mitigating evidence and found
that the aggravating circumstances outweighed the mitigating
circumstances found beyond a reasonable doubt. Thus, no error occurred
in this case when the death penalty was imposed.
Title 21 O.S. 1991 § 701.10 [21-701.10](C) provides in pertinent part:
the sentencing proceeding, evidence may be presented as to any
mitigating circumstances . . .
Clearly, under the language of 22 O.S. 1991 § 982 [22-982], the trial
court was under no statutory obligation to order such an investigative
COURT OF APPEALS
the Tenth Circuit
RON WARD, Warden, Oklahoma State Penitentiary,
APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
BALDOCK, EBEL, and LUCERO, Circuit Judges.
George Kent Wallace, an Oklahoma state prisoner, entered guilty pleas
to two counts of first degree murder and sought the death penalty,
which the state trial court imposed. After direct criminal appeal and
post-conviction proceedings, petitioner filed a federal habeas corpus
petition pursuant to 28 U.S.C. § 2254. The district court denied
petitioner argues (1) application of the new standards of review set
forth in the Antiterrorism and Effective Death Penalty Act of 1996
(ADEPA) would have an impermissible retroactive effect; (2) the trial
court violated his due process rights by analyzing his competency
under the "clear and convincing evidence" standard prohibited by
Cooper v. Oklahoma, 517 U.S. 348 (1996); and (3) his trial counsel
was ineffective due to a conflict of interest and his failure to
investigate mitigating evidence. Petitioner also argues the federal
district court abused its discretion in denying his request for
discovery on the conflict issue. Our jurisdiction arises under
28 U.S.C. §§ 1291 and 2253, and we affirm the federal district court's
17, 1987, petitioner, posing as a police officer, pretended to arrest
fifteen year old William Von Eric Domer in Van Buren, Arkansas.
Petitioner frisked, handcuffed, and shackled Domer and then put him in
the back seat of petitioner's rental car. Petitioner drove across the
Arkansas state border to Leard Pond near Pocola, Oklahoma.
petitioner pulled down Domer's pants and underpants and attempted to
beat him with a paddle. After Domer resisted, petitioner pulled up his
clothing, removed him from the car, and walked him down a hill.
Petitioner shot Domer twice in the back with a .25 caliber pistol.
Thereafter, petitioner removed the handcuffs and leg irons, dragged
Domer's body, and threw the body into the pond.
11, 1990, petitioner, again posing as a police officer, stopped
fourteen year old Anthony McLaughlin in Van Buren. Petitioner
pretended to arrest McLaughlin, frisked him, placed handcuffs and leg
irons on him, and then put him in the back seat of petitioner's rental
car. As with Domer, petitioner drove to Leard Pond.
petitioner got in the back seat with McLaughlin, pulled down his pants
and underpants, and spanked him with a wooden plunger handle. After
doing so, petitioner pulled up McLaughlin's clothing, got him out of
the car, walked him to the pond, and shot him in the back once with a
.22 caliber pistol. Thereafter, petitioner removed the handcuffs and
leg irons and threw McLaughlin's body in the pond.
authorities arrested petitioner on December 9, 1990. On that day,
petitioner again impersonated a police officer when he pretended to
arrest Ross Allen Ferguson in Van Buren. Petitioner placed handcuffs
and leg irons on Ferguson and then put him in the backseat of another
drove to a country road, parked the car, climbed in the backseat,
pulled down Ferguson's pants and underpants, and beat him with a rod.
After the beating, petitioner removed Ferguson from the car and began
walking him down the road. Ferguson, who was aware of the McLaughlin
murder, asked petitioner if he intended to shoot him.
replied that he would not and proceeded to stab Ferguson six times
with a knife. Feigning death, Ferguson allowed petitioner to drag him
to a nearby pond. When petitioner removed the handcuffs and leg irons,
Ferguson ran to the rental car, drove away, and notified Arkansas
authorities. Petitioner was arrested near the scene a short while
confessed to the two murders and pleaded guilty to two counts of first
degree murder. After the State presented its aggravating evidence at
the punishment trial, petitioner took the stand himself and requested
that the trial court impose the death penalty.
court found three aggravating circumstances: petitioner had previously
been convicted of a felony involving the threat or use of violence,
the murders were especially heinous, atrocious or cruel, and
petitioner would pose a continuing threat to society. The trial court
imposed the death penalty. At sentencing, the trial court advised
petitioner of his appeal rights, including the Oklahoma requirement
that he withdraw his guilty pleas in order to appeal his convictions.
See Tr. of 4/12/91 Hr'g at 7-12.(1)
waived his appeal rights both verbally and in writing and did not
attempt to withdraw his guilty pleas. Instead, he expressed his desire
to be executed as soon as possible. See id. at 10-12.
Oklahoma provides for mandatory sentence review, see Okla.
Stat. tit. 21, § 701.13(A), the trial court appointed counsel to
represent petitioner on appeal. The Oklahoma Court of Criminal Appeals
remanded the case to the trial court to determine, among other things,
who represented petitioner on appeal, whether petitioner waived an
appeal other than mandatory sentence review, and whether petitioner's
request for an appeal out of time should be granted. After holding a
hearing, the trial court found that petitioner had waived an appeal,
except mandatory sentence review, but, nonetheless, he should be
allowed an appeal.
Court of Criminal Appeals granted an appeal out of time, determined
petitioner had waived all issues other than mandatory sentence review
because he did not file an application to withdraw his guilty plea,
and upheld the death sentences. See Wallace v. State,
893 P.2d 504, 509-10, 517 (Okla. Crim. App.), cert. denied, 516
U.S. 888 (1995).(2)
That court later denied post-conviction relief, discovery, and an
evidentiary hearing. See Wallace v. State, 935 P.2d 366
(Okla. Crim. App.), cert. denied, 521 U.S. 1108 (1997).
commenced a habeas action in federal district court, and again moved
for discovery and an evidentiary hearing. The district court denied
all relief and denied a certificate of appealability (COA). See
28 U.S.C. § 2253(c). This court granted COA on the issues listed above
and denied it on all others.(3)
APPLICABILITY OF AEDPA'S STANDARDS OF REVIEW
first argues the district court erred in applying the standards of
review set forth in AEDPA, even though he filed his habeas petition
after the effective date of AEDPA. Petitioner submits that application
of AEDPA's new standards to state court proceedings completed before
enactment or effectiveness of AEDPA is unconstitutionally retroactive.
This court has held to the contrary, determining that AEDPA applies to
cases filed after its effective date, regardless of when state court
proceedings occurred. See Rogers v. Gibson, 173 F.3d
1278, 1282 n.1 (10th Cir. 1999); see also Berget v. Gibson,
No. 98-6381, 1999 WL 586986, at *2-*4 (10th Cir. Aug. 5, 1999)
(unpublished order and judgment in capital case citing Rogers
and holding that application of AEDPA to cases filed after its
effective date is not impermissibly retroactive); Mueller v.
Angelone, 181 F.3d 557, 565-72 (4th Cir. 1999).
prisoner will be entitled to federal habeas corpus relief only if he
can establish that a claim adjudicated by the state courts "resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States," or "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." [28 U.S.C.
§ 2254(d).] Further, "a determination of a factual issue made by a
State court shall be presumed to be correct." [Id.]
§ 2254(e)(1). That presumption of correctness is rebuttable only "by
clear and convincing evidence." Id.
179 F.3d 904, 911-12 (10th Cir. 1999). If, however, a state court did
not decide a claim on its merits and instead the federal district
court decided the claim in the first instance, this court reviews the
district court's conclusions of law de novo and factual findings, if
any, for clear error. See LaFevers v. Gibson, 182 F.3d
705, 711 (10th Cir. 1999).
applied, but not defined, AEDPA's standards. See Bryson v.
Ward, No 97-6435, 1999 WL 590738, at n.3 (10th Cir. Aug. 6, 1999).
The United States Supreme Court has granted certiorari to review the
Fourth Circuit's interpretation of the standards. See
Williams v. Taylor, 119 S. Ct. 1355 (1999); see also
67 U.S.L.W. 3608 (Apr. 6, 1999) (listing issues presented). Under any
possible interpretation, the outcome of this appeal will be the same.
Thus, we decline to interpret the standards in this case.
argues that his due process rights were violated when the trial court
used the "clear and convincing" evidence standard prohibited by
Cooper v. Oklahoma, 517 U.S. 348 (1996), to determine whether he
was competent to stand trial and to enter guilty pleas. Petitioner
contends that the federal district court erred in assessing whether he
was competent and instead should have looked at what process the trial
court used to determine competency.(4)
further argues the district court erred in affording the state court
factual findings a presumption of correctness because the trial court
used the wrong standard for assessing competency and because his trial
counsel did not investigate and raise an issue of incompetency.
in effect at the time the state trial court determined petitioner's
competency required criminal defendants to prove incompetence by
"clear and convincing evidence." Okla. Stat. tit. 22, § 1175.4(B). The
Supreme Court struck down the "clear and convincing" evidence standard
holding that "[b]ecause Oklahoma's procedural rule allows the State to
put to trial a defendant who is more likely than not incompetent, the
rule is incompatible with the dictates of due process." Cooper,
517 U.S. at 369. Thus, we must determine whether the trial court
applied an unconstitutional standard when conducting petitioner's
criminal appeal, which was pre-Cooper, petitioner presented the
Oklahoma Court of Criminal Appeals with the competency issue presented
here. See Wallace, 893 P.2d at 516-17. That court
determined petitioner waived any argument he was not competent to
stand trial, plead guilty, or waive rights, because he did not
withdraw his guilty pleas. See id. at 510, 516.
the court decided, based on the evidence before the trial court, that
petitioner's competency arguments were without merit "[u]nder whatever
standard," as there was never any real question about his competency.
Id. (citing Dusky v. United States, 362 U.S. 402
post-conviction review, despite recognizing the Supreme Court's
intervening opinion in Cooper, the Oklahoma Court of Criminal
Appeals first declined to address the issue because it had been raised
and addressed on direct appeal. See Wallace, 935 P.2d at
371. Even if the claim were not barred by res judicata, that court
alternatively determined, after carefully and thoroughly examining all
portions of the record concerning competency, it would not grant
relief because competency to stand trial was never factually
controverted by petitioner or really in doubt by the parties or the
trial court. See id. at 371 n.4. Thus, the court
believed that petitioner was never in a position of having to meet an
unconstitutional burden of proof. See id. at 372 n.4.
district court, although finding procedural bar due to petitioner's
failure to withdraw his guilty pleas, addressed the merits for the
reason that competency bears upon the knowing waiver of constitutional
rights. See Dist. Ct. R. vol. VII, doc. 40 at 14, 20. The court
concluded the record supports the state court determinations that
petitioner was competent.
respondent notes that the district court correctly recognized the
state jurisdictional rule requiring petitioner to withdraw his guilty
pleas. Respondent, however, does not actually assert procedural bar.
Instead, he cites to recent Tenth Circuit authority, Walker v.
Attorney General, 167 F.3d 1339, 1344 (10th Cir. 1999), and
proceeds to discuss the merits of this claim. See Appellee's
Br. at 8-9. Because respondent does not specifically argue procedural
bar, we turn to the merits of petitioner's claim. See Hooks
v. Ward, No. 98-6196, 1999 WL 502608, at *9 (10th Cir. July 16,
1999) (holding State is required to raise procedural bar as
affirmative defense or it is waived).
trial court held two competency hearings. We consider each separately
to determine whether the state trial court applied the
unconstitutional "clear and convincing" evidence standard prohibited
petitioner's initial appearance, his counsel filed an application for
determination of competency expressing his doubts about petitioner's
ability to understand the gravity of his situation and stating that
petitioner was incompetent. See O.R. (CRF-91-1, CRF-91-2) at
16; see also Tr. of 1/29/91 Hr'g at 3 (noting trial counsel
filed application for determination of competency at court's request).
court ordered a competency examination. At the first competency
hearing, Judge Lee stated "the defendant is presumed to be competent
for purposes of the allocation of the burden of proof, and the burden
of going forward with the evidence. . . . I think that puts the burden
on the defendant to go forward with the evidence." Tr. of 2/4/91 Hr'g
at 8-9. At the conclusion of the hearing and in his order, Judge Lee
determined petitioner to be competent and denied petitioner's request
for further examination. See id. at 29; O.R. (CRF-91-1,
CRF-91-2) at 30-31.
circumstances, we assume Judge Lee applied Oklahoma law, the "clear
and convincing" evidence standard held unconstitutional by Cooper.
Because the state trial court utilized an unconstitutional standard of
proof, its decision would "not [be] entitled to a presumption of
correctness, and [would be] analogous to no competency hearing at
all." Barnett v. Hargett, 174 F.3d 1128, 1135 (10th Cir. 1999);
see also Walker, 167 F.3d at 1345.(5)
would be entitled to habeas relief if he establishes "a bona fide
doubt as to his competency" at the time he entered his guilty plea.
Barnett, 174 F.3d at 1135; see also Rogers, 173 F.3d
at 1290; Walker, 167 F.3d at 1343, 1345. A defendant is
competent to stand trial if he "has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding [and if] he has a rational as well as factual
understanding of the proceedings against him." Dusky, 362 U.S.
at 402 (quotation omitted); see also Godinez v. Moran,
509 U.S. 389, 399 (1993) (holding same competency standard applies to
defendants who plead guilty). Evidence of irrational behavior,
demeanor at trial, and prior medical opinion regarding competence are
relevant to a bona fide doubt inquiry. See Rogers,
173 F.3d at 1290; Walker, 167 F.3d at 1346.
reveals no bona fide doubt as to petitioner's competency. A mental
health expert, called by petitioner, testified at the hearing and
submitted a report stating that petitioner appreciates the nature of
the charges against him and can consult with his attorney and
rationally assist in the preparation of his defense. See Tr. of
2/4/91 Hr'g at 15 & ex. p. 8. Although she testified that she had
found approximately seventy-five percent of the people she had
examined to be incompetent, she had no doubt as to petitioner's
competency. See id. at 13-14, 16, 18.
called a criminal investigator, who had interviewed petitioner. He
also testified that petitioner understood the charges against him and
could assist his attorney. See id. at 24. Thus, no
evidence at the first hearing raised any doubt about petitioner's
arraignment, two weeks later, after learning petitioner intended to
change his pleas to guilty, Judge Knight, who was now hearing
proceedings in petitioner's case, ordered a complete psychological
evaluation of petitioner out of an abundance of caution, and not
because he had a doubt regarding petitioner's competency. See
Tr. of 2/21/91 Hr'g at 4, 6, 8. Petitioner objected, and his attorney
stated he had no doubt petitioner was competent to assist with his
defense, if he desired to do so. See id. at 4-5, 7. The
State also objected. See id. at 6.
Judge Knight appointed an amicus attorney to file an application to
determine competency. The application did not raise any doubts
regarding petitioner's competency, but merely indicated it was filed
on the court's motion to protect petitioner's due process rights.
See O.R. (CRF-91-1, CRF-91-2) at 35-36.
At the second
competency hearing, held five weeks after the first hearing,
petitioner presented no witnesses and the State presented a
psychologist who had examined petitioner. She testified that
petitioner appreciated the nature of the charges against him and the
possible consequences and that he could consult with his attorney and
assist with his defense. See Tr. of 3/11/91 Hr'g at 9 & ex. p.
12. She had no doubt that petitioner was competent. See id.
counsel did not cross-examine the psychologist, since he and
petitioner did not think competency was an issue. See id.
Judge Knight found, based upon the evidence presented, that the State
established petitioner's competence by "clear and convincing"
evidence. See id. at 16-17; O.R. (CRF-91-1, CRF-91-2) at
50, 51; see also Tr. of 3/12/91 Hr'g at 8 (finding of Judge
Knight, based on the two evaluations and the court's observations of
petitioner, that petitioner was competent).
Based on these
facts, we conclude Judge Knight did not place the "clear and
convincing" burden held unconstitutional in Cooper on
petitioner at the second hearing. Judge Knight requested examination
and held the hearing only out of an abundance of caution. Petitioner
presented no evidence and indeed did not contest his competency. Only
the State presented evidence. Judge Knight determined the State proved
petitioner was competent by "clear and convincing" evidence.
petitioner was not held to the unconstitutional burden of proving his
incompetence by "clear and convincing" evidence. Accordingly, with
respect to the second competency hearing, we afford the state court's
finding of competency a presumption of correctness unless petitioner
rebuts the presumption by clear and convincing evidence. See
Bryson, 1999 WL 590738.
apparently attempts to rebut the presumption by arguing his trial
counsel did not investigate or raise an issue of competency.
Petitioner does not present any specific evidence tending to show he
was incompetent. The evidence petitioner mentions on appeal, but which
was not presented to the trial court, of his personal mental illness;
family history of mental illness; possible organic brain disease;
dysfunctional, abnormal, and impoverished home environment; sexual
abuse by an uncle; head injury; and difficult childhood, does not
suggest he actually was incompetent.
record reflects that petitioner had been examined several times during
the preceding years as a result of his lengthy criminal history and
was always determined to be competent. See Tr. of 3/12/91 Hr'g
at 6; O.R. (CRF-91-1, CRF-91-2) at 90. His behavior, understanding,
and demeanor during the court proceedings did not suggest
incompetency. Also, petitioner himself believed he was competent.
See Tr. of 3/12/91 Hr'g at 7-8.(6)
thus failed to point to clear and convincing evidence rebutting the
presumption of correctness of the state trial court's finding of
competence. See 28 U.S.C. §2254(e)(1). Nor was the state
court's competency decision based upon an unreasonable determination
of the facts in light of the evidence presented. See id.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
presents two claims of ineffective assistance of trial counsel:
(1) counsel labored under a conflict of interest and (2) counsel
failed to investigate mitigating evidence. Although respondent argued
in the district court that both claims are procedurally barred, he
does not continue to assert procedural bar to this court. See
Appellee's Br. at 10-15. Accordingly, we address the merits of these
claims. See Hooks, 1999 WL 502608, at *9.
OF INTEREST AND DISCOVERY
before being appointed to represent petitioner, trial counsel had been
employed as first assistant district attorney (DA) in the office
investigating the Domer homicide. Petitioner argues that he was not
fully informed of counsel's involvement in the prosecution of this
case before counsel left office and therefore his waiver of
conflict-free counsel was not fully informed. Also, petitioner
"believe[s]" defense counsel "may" have entered into a book or movie
contract during his representation of petitioner. Appellant's Br. at
20-21. This allegedly was not disclosed to petitioner before he made
his waiver. Additionally, petitioner urges that this court reverse the
district court's denial of discovery on these conflict issues.
first presented a federal conflict of interest claim in state
post-conviction proceedings. The Oklahoma Court of Criminal Appeals
determined the claim was procedurally barred because petitioner waived
a direct criminal appeal. See Wallace, 935 P.2d at
369-70. The federal district court agreed, but nevertheless addressed
the merits of the claim, determining petitioner knowingly and
voluntarily waived any conflict of interest.
further determined petitioner personally made the decision to enter
guilty pleas and there was not a remote possibility that petitioner
would have insisted on going to trial if counsel had more fully
disclosed any potential conflicts. Accordingly, the district court
denied discovery on the issue. Because the federal district court
decided this claim on its merits in the first instance, we review that
court's conclusions of law de novo. See LaFevers, 182
F.3d at 711.
assistance of counsel includes the right to representation that is
free from conflicts of interest. See Wood v. Georgia,
450 U.S. 261, 271 (1981); Stouffer v. Reynolds, 168 F.3d 1155,
1161 (10th Cir. 1999). A petitioner may waive his right to
conflict-free counsel. See Holloway v. Arkansas, 435
U.S. 475, 483 n.5 (1978). Any waiver must be knowing, voluntary, and
done with awareness of relevant circumstances and likely consequences.
See Stouffer, 168 F.3d at 1162; see also
Brewer v. Williams, 430 U.S. 387, 404 (1977) (determining waiver
is "an intentional relinquishment or abandonment of a known right or
privilege") (further quotation omitted). Because petitioner's
competence is not in doubt, he can knowingly and intelligently waive
his rights. See Medina v. California, 505 U.S. 437, 450
(1992). This court indulges every reasonable presumption against
waiver, however. See Stouffer, 168 F.3d at 1162.
shows that petitioner was advised of a conflict of interest relating
to counsel's former employment and that he knowingly, voluntarily and
intelligently waived his right to conflict-free representation. Before
petitioner entered his guilty pleas, the trial court learned of the
The court held
a hearing, advised petitioner of the conflict, and informed him that
other counsel could be appointed to represent him. Petitioner
indicated that counsel had discussed the possible conflict with him
and that he waived appointment of other counsel. See Tr. of
2/4/91 Hr'g at 4-5 & ex. p. 7 (written waiver). Also, counsel
indicated that he had informed petitioner of the possible conflict.
See id. at 3.
believes that this hearing and counsel's disclosure were insufficient
and that he needs discovery to show that the conflict was not fully
disclosed. Petitioner maintains that the federal district court abused
its discretion in refusing his request for discovery. First,
petitioner sought to discover counsel's involvement in the Domer
murder investigation. Petitioner believes that discovery would show
that the office investigator reported either to the DA or to defense
counsel, who was first assistant DA. Petitioner also maintains that
the DA's office did not turn over its entire file. Petitioner believes
information remaining in the file would be relevant to whether his
waiver of conflict-free counsel was made after full disclosure.
also sought to obtain the entire trial file kept by counsel. According
to petitioner, counsel removed documents from the file. Petitioner
admits having no knowledge of the contents of the documents, but
suspects they show the existence of a contract to sell literary rights
to his case.
Rule 6(a) of
the Rules Governing Section 2254 Cases in the United States District
Courts permits discovery in the discretion of the trial judge upon a
showing of "good cause." See LaFevers, 182 F.3d at 723.
Good cause is established "where specific allegations before the court
show reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is . . . entitled to
relief." Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (further
the district court did not abuse its discretion in denying discovery.
See Stouffer, 168 F.3d at 1173. Petitioner's suggestion
that counsel had greater involvement in the prosecution of the Domer
case than counsel originally disclosed was general and conclusory.
Furthermore, the evidence presented to the trial court strongly
indicated that counsel did not have a role with regard to that
investigation. See Tr. of 2/4/91 Hr'g at 2-3, 5, 6 (testimony
of counsel and criminal investigator; statement by prosecutor). It
also appears that a book or movie contract is pure speculation, and
petitioner does not actually assert that there was a contract. Thus,
we conclude petitioner knew all material facts pertinent to his waiver
of representation by conflict-free counsel, and he knowingly,
voluntarily, and intelligently made the waiver.
Even if we
were to conclude petitioner was not fully informed of counsel's
conflict, petitioner cannot show his waiver was not knowing,
voluntary, and intelligent. Under the clear, unequivocal facts
presented here, it is not "impossible" to determine how petitioner
would have responded if counsel had made further disclosure, and we
need not engage in "unguided speculation" to determine that any
failure of counsel to more fully disclose was harmless. Holloway,
435 U.S. at 491.
At all times,
petitioner was articulate, forthright, and adamant about pleading
guilty and obtaining the death penalty, even against counsel's advise.
Before his return to Oklahoma, petitioner had rejected the advice of
his Arkansas counsel and confessed to the Domer homicide and refused
that counsel's presence during the confession. See Tr. of
4/4/91 Hr'g at ex. p. 95 (exhibits 23 & 24).
presentence report indicated petitioner was well aware of the criminal
justice system as he had spent much of his adult life in prison or in
the criminal justice system. See O.R. (CRF-91-1, CRF-91-2) at
89. Furthermore, petitioner consistently indicated his satisfaction
with trial counsel. See, e.g., Tr. of 3/12/91 Hr'g at 13; Tr.
of 4/12/91 Hr'g at 10. We conclude that further disclosure of
conflict, if any, would not have affected petitioner's decision to
waive his right to conflict-free counsel, because petitioner fully
understood what he was doing, knew the consequences of his actions,
and would never have deviated from his course to plead guilty and seek
the death penalty.
TO INVESTIGATE AND PRESENT MITIGATION EVIDENCE
argues that even if he waived his right to conflict-free counsel, he
made no waiver of his right to effective representation. Essentially,
petitioner complains counsel did not investigate and present
mitigating evidence. According to petitioner, counsel failed to
investigate his background; did not interview his family members; and
failed to request or review records regarding his previous
incarcerations, hospitalizations, and commitments. If counsel had done
so, petitioner believes he would have found evidence of physical and
sexual abuse, a family history of mental illness, and a previous
"horrific" incarceration in Arkansas.
petitioner complains that counsel did not present evidence about his
cooperation in prison. Because counsel allegedly conducted no
investigation, petitioner maintains the decision not to present
mitigating evidence was not an informed tactical decision.
criminal appeal, the Oklahoma Court of Criminal Appeals held
petitioner was permitted to waive presentation of mitigating evidence.
See Wallace, 893 P.2d at 508, 515 n.10. The court
determined if counsel had presented mitigating evidence, he would have
contravened petitioner's wish that no evidence be presented. See
id. at 515 n.10.
post-conviction review, the Oklahoma appellate court first determined
petitioner had waived his claims that ineffective assistance of
counsel deprived him of mitigating evidence and that his waiver of the
presentation of mitigating evidence was not knowing, intelligent, and
voluntary. See Wallace, 935 P.2d at 370. The Oklahoma
Court of Criminal Appeals, however, recognized that it had made a
determination on direct appeal that
the capacity to understand the choice between life and death and to
knowingly and intelligently waive all rights to present mitigating
evidence. Petitioner knew what mitigating evidence was, as his
attorney discussed it with him. He likewise knew he had the right to
present mitigating evidence. Petitioner refused to cooperate with his
attorney in the presentation of mitigating evidence; indeed,
Petitioner would not even let his attorney cross-examine prosecution
witnesses during the sentencing hearing.
at 376. The court concluded "[p]etitioner understood the nature of
mitigating evidence, understood the choice between life and death, and
knowingly and intelligently waived all his rights to present
mitigating evidence." Id.
district court determined that counsel did as petitioner wished and
that petitioner failed to show he would not have pleaded guilty if
counsel had more thoroughly investigated mitigating evidence.
ineffective assistance of counsel are mixed questions of law and fact.
See Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir.
1998) (applying AEDPA). "To establish ineffective assistance of
counsel, a petitioner must prove that counsel's performance was
constitutionally deficient and that counsel's deficient performance
prejudiced the defense . . . ." Boyd, 179 F.3d at 913 (citing
Strickland, 466 U.S. at 687); see also Hill v.
Lockhart, 474 U.S. 52, 58 (1985) (holding this two-part test
applies to challenges to guilty pleas based upon ineffectiveness of
deficient performance, petitioner must overcome the presumption that
counsel's conduct was not constitutionally defective. See
Boyd, 179 F.3d at 914. Judicial scrutiny of counsel's performance
is highly deferential. See Strickland, 466 U.S. at 689.
To establish prejudice, petitioner must show that but for counsel's
deficient performance, there is a reasonable probability that the
result of the proceeding would have been different. See id.
duty to investigate all reasonable lines of defense is strictly
observed in capital cases." Nguyen v. Reynolds, 131 F.3d 1340,
1347 (10th Cir. 1997), cert. denied, 119 S. Ct. 128 (1998);
see also Brecheen v. Reynolds, 41 F.3d 1343, 1366 (10th
Cir. 1994) (in context of sentencing phase, attorney has duty to
conduct reasonable investigation, which includes investigation into
defendant's background; failure to conduct reasonable investigation
"may" be deficient performance). Counsel, however, may make a
reasonable decision that investigation is unnecessary. See
Strickland, 466 U.S. at 691; Williamson v. Ward, 110 F.3d
1508, 1514 (10th Cir. 1997).
A decision not
to investigate is assessed for reasonableness, giving deference to the
attorney's judgment. See Strickland, 466 U.S. at 691;
Williamson, 110 F.3d at 1517. The reasonableness of counsel's
decision not to investigate may be determined or greatly influenced by
the petitioner's statements or behavior. See Strickland,
466 U.S. at 691.
present mitigating evidence is not per se ineffective assistance of
counsel. See Boyd, 179 F.3d at 918. Where available
mitigating evidence is not presented, this court focuses on the reason
for the decision not to present the evidence. See Brecheen,
41 F.3d at 1368. "'[T]he reasonableness of counsel's actions may be
determined or substantially influenced by the defendant's own
statements and actions.'" See id. at 1370 (quoting
Strickland, 466 U.S. at 691).
decision to introduce mitigating evidence is a nonfundamental right
which is waivable by the defense attorney on the defendant's behalf,
see id. at 1368-69, petitioner here actually waived
investigation and presentation of mitigating evidence himself after
conferring with counsel. At all times, counsel acted in accordance
with petitioner's wishes not to cross-examine State witnesses, object
to State evidence, or present mitigating evidence. See Tr. of
4/4/91 Hr'g at 51-52, 58-59, 67, 70-71, 84, 97, 102-03, 105 (counsel
stated that at petitioner's request and instructions he would not
cross-examine witnesses; petitioner confirmed counsel's statements and
said he understood he could receive death penalty and death penalty
was what he wanted; petitioner stated he did not want counsel to
object to the videotape deposition of Ferguson; counsel stated that at
petitioner's direction he would not object to exhibits and petitioner
the only defense witness at the punishment trial, testified:
(1) counsel presented no defense at his instructions; (2) he
understood counsel could have vigorously presented a defense if he had
desired one; (3) he pleaded guilty against his attorney's advice and
he informed counsel from the outset he wanted the death penalty; (4)
the aggravating evidence was overwhelming and damning; (5) he
instructed counsel not to cross-examine witnesses or to object to the
evidence because his goal was to obtain the death penalty; (6) if he
had not been caught, he would engage in the same behavior again; and
(7) he had no desire to present mitigating evidence. See id.
at 106-08. Defense counsel's closing statement confirmed that he
represented defendant's professed interests. See id. at
petitioner again declined to present any evidence to mitigate
punishment. See Tr. of 4/12/91 Hr'g at 5. Based on the unique
facts of this case, counsel's decision not to investigate or present
mitigating evidence was completely determined by petitioner and was
within the realm of reasonable tactical decisions. Cf.
Brecheen, 41 F.3d at 1369 (deciding failure to present additional
mitigating evidence was tactical decision where petitioner did not
want to delay proceedings). We conclude petitioner has failed to show
that counsel's performance was deficient.
petitioner has not shown prejudice. He has not shown that but for any
failure of counsel to investigate he would not have pleaded guilty or
sought the death penalty. See Hill, 474 U.S. at 59.
Rather, the record shows petitioner was absolutely determined to plead
guilty and to obtain the death penalty.
petitioner has failed to make the required showings under
Strickland and Hill, we conclude the state court decisions
that counsel was not ineffective and that petitioner waived
presentation of mitigating evidence are not unreasonable. See
28 U.S.C. § 2254(d).
reasons stated above, the judgment of the district court is AFFIRMED.
To appeal from a guilty plea, a defendant must file an application to
withdraw the plea within ten days of judgment. See
Okla. R. Crim. App. 4.1, Okla. Stat. tit. 22, ch. 18, app. (1991). If
the motion is denied, the conviction may be appealed within ninety
days of conviction by a petition for writ of certiorari to the
Oklahoma Court of Criminal Appeals. See Okla. Stat. tit. 22,
The Oklahoma Court of Criminal Appeals "found insufficient evidence to
support the finding the [Domer] murder was especially heinous,
atrocious or cruel." Wallace, 893 P.2d at 514. Upon reweighing
the evidence, the court found the remaining two aggravators supported
imposition of the death penalty for the Domer murder. See
This court denied COA on the following issues: (1) either the State's
failure to disclose exculpatory evidence or trial counsel's failure to
present mitigating evidence deprived him of an accurate sentencing
determination; (2) the especially heinous, atrocious or cruel
aggravating circumstance is unconstitutionally vague; (3) the state
appellate court failed to consider mitigating evidence; (4) the
continuing threat aggravator is unconstitutional; and (5) petitioner
is entitled to discovery with respect to his claim the State failed to
disclose exculpatory evidence.
Petitioner conceded at oral argument that he is raising only a
procedural, and not a substantive, due process claim.
We recognize the district court reached its decision before this court
decided Barnett and Walker.
To the extent petitioner is arguing ineffective assistance of counsel,
we conclude he has not succeeded in showing trial counsel was
ineffective for failing to investigate or raise a further issue of his
competency. See Strickland v. Washington, 466 U.S. 668,
688, 694 (1984) (requiring petitioner to show counsel's performance
fell below objective standard of reasonableness and reasonable
probability that but for counsel's errors outcome of proceedings would
have been different).