BOYD v. STATE

BOYD v. STATE
1996 OK CR 12
915 P.2d 922
Case Number: PC-95-551
Decided: 04/09/1996
Ronald Keith BOYD, Appellant, v. STATE of Oklahoma, Appellee
Oklahoma Court of Criminal Appeals

An Appeal from the District Court of Oklahoma County; the Honorable Daniel L. Owens, District Judge.

E. Melvin Porter, Oklahoma City, for Defendant at trial.

Robert Macy, District Attorney, Ray Elliot, Assistant District Attorney, Oklahoma City, for State at trial.

David Autry, Oklahoma City, for Petitioner on appeal.

W.A. Drew Edmondson, Attorney General, Sandra D. Howard, Assistant Attorney General, Oklahoma City, for Respondent on appeal.

[915 P.2d 924]

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

CHAPEL, Vice Presiding Judge:

¶1 Ronald Keith Boyd appeals from an order of the District Court of Oklahoma County denying his application for post-conviction relief in Case No. CRF-86-218. Boyd was convicted by jury of Murder in the First Degree, malice aforethought, 21 O.S.1981, § 701.7(B) (Count I), and Robbery With Firearms, 21 O.S.1981, § 801 (Count II). After finding the aggravating circumstances that Boyd committed the murder for the purpose of avoiding or preventing a lawful arrest or prosecution, that he probably would commit criminal acts of violence that would constitute a continuing threat to society, and that the victim was a peace officer killed in performance of official duty, the jury recommended and the Honorable James L. Gullett imposed a sentence of death on Count I and fifty years imprisonment on Count II.

¶2 This Court affirmed Boyd's convictions and sentences,

¶3 The Post-Conviction Procedure Act

¶7 Our review of these claims reveals that none of them meet both Strickland requirements. First, the record does not support Boyd's claim that the expert witnesses gave unreliable and misleading evidence. Contrary to his assertion, nothing in the materials before the Court suggests that Officer Golightly's testimony was demonstrably false; also, Dr. Choi's testimony is contained entirely within the trial record and is neither groundless nor misleading. The jury [915 P.2d 926] instruction on unadjudicated offenses, while not found in the Oklahoma Uniform Jury Instructions, did not misstate the law. of the comments cited to support Boyd's claim of prosecutorial misconduct, most are comments on the evidence presented and within the wide latitude afforded for closing argument. One comment was raised and rejected as error on direct appeal.

¶8 Boyd also claims appellate counsel was ineffective for failing to raise ten specific instances of ineffective assistance of trial counsel: 1) failure to adequately cross-examine and impeach Officer Golightly; 2) failure to adequately cross-examine Dr. Choi; 3) failure to use photographs of the crime scene to establish material facts favorable to the defense; 4) failure to adequately cross-examine and impeach Gericke; 5) failure to use available evidence to impeach Jackson's claim he saw Boyd shoot the victim; 6) failure to adequately cross-examine Gibbs; 7) failure to investigate and produce readily available evidence favorable to the defense; 8) failure to introduce Dunn's criminal and substance abuse history; 9) failure to use a crime scene diagram to rebut the State's theory that Boyd shot the victim; 10) failure to offer evidence in the second stage of trial regarding a) an informant's statement; b) evidence Boyd had not been convicted of a violent crime; and c) mitigating evidence.

¶9 A claim of ineffective assistance of counsel based on matters presented to the trial court and included in the record on appeal should be raised on direct appeal, and is waived if not raised at that time.

¶10 Regarding the remaining claims, Boyd argues that trial counsel was ineffective in failing to use information in the State's files and available to him at the time of trial to effectively cross-examine State witnesses or develop facts favorable to the defense. We have carefully considered each of these claims and, without addressing each on the merits, find that they do not raise issues which warrant reversal, modification of sentence, or remand for resentencing. We will not second-guess trial counsel's strategic decisions, which fall within the parameters of reasonable professional competence.

¶11 Boyd also claims trial counsel erred in failing to consult a weapons expert to refute the State's claims regarding the gun identified as the murder weapon. Boyd has not shown that, had counsel obtained expert services to rebut the State's claims, there exists a reasonable probability that the result of the trial would have been different.

 
¶12 In Proposition VI Boyd claims that the use of unadjudicated offenses violated his constitutional rights. Boyd raised on direct appeal, and this Court denied, a similar but unrelated claim of error arising from the use of unadjudicated offenses.

¶13 In Proposition VII Boyd claims that the continuing threat aggravating circumstance as interpreted and applied in this case is unconstitutional. This issue was raised and rejected on direct appeal.

¶14 In Proposition VIII Boyd claims that accumulated error in the foregoing propositions warrants relief. As we have found no error, no accumulated error exists and relief is not warranted.

¶15 We have carefully considered the entire record before us on appeal, including Boyd's application and the District Court's findings of fact and conclusions of law, and find that Boyd is not entitled to relief. The order of the District Court denying post-conviction relief is AFFIRMED.

JOHNSON, P.J., and LANE and STRUBHAR, JJ., concur.
LUMPKIN, J., concurs in result.

Footnotes:

1 Boyd v. State, 839 P.2d 1363 (Okl.Cr. 1992).

2 Boyd v. Oklahoma, 509 U.S. 908, 113 S. Ct. 3005, 125 L. Ed. 2d 697 (1993).

3 22 O.S.1991, §§ 1080 et seq.

4 Thomas v. State, 888 P.2d 522, 525 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 116 S. Ct. 123, 133 L. Ed. 2d 73 (1995); Fox v. State, 880 P.2d 383, 385 (Okl.Cr.), cert. denied, ___ U.S. ___, 115 S. Ct. 1318, 131 L. Ed. 2d 199 (1995).

5 Stiles v. State, 902 P.2d 1104, 1105 (Okl.Cr. 1995), cert. dismissed, ___ U.S. ___, 116 S. Ct. 1257, 134 L. Ed. 2d 206 (1996); Castro v. State, 880 P.2d 387, 388 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1375, 131 L. Ed. 2d 229 (1995); Nguyen v. State, 844 P.2d 176, 178 (Okl.Cr. 1992), cert. denied, 509 U.S. 908, 113 S. Ct. 3006, 125 L. Ed. 2d 697 (1993); Rojem v. State, 829 P.2d 683, 684 (Okl.Cr.), cert. denied, 506 U.S. 958, 113 S. Ct. 420, 121 L. Ed. 2d 343 (1992).

6 Grounds of error barred by waiver include:

III. The jury received unreliable and misleading evidence that violated Mr. Boyd's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; [This Court considered the claim in conjunction with its review of ineffective assistance of appellate counsel, finding appellate counsel was not ineffective for failing to raise the issue.] IV. Improper comments and arguments of the prosecution deprived Mr. Boyd of a fair trial in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II §§ 7, 9 and 20 of the Oklahoma Constitution; [Boyd complains of several comments not raised on direct appeal. As he fails to show why these grounds could not have been raised with the other allegations of prosecutorial error in his appellate briefs, this claim has been waived. This Court considered the claim in conjunction with its review of ineffective assistance of appellate counsel, finding appellate counsel was not ineffective for failing to raise the issue.] V. Fundamental and reversible error occurred at trial when the trial court failed to give accomplice corroboration instructions with respect to the testimony of Joe Jackson and Byron Gibbs. [This Court considered this claim in conjunction with its review of ineffective assistance of appellate counsel, finding appellate counsel was not ineffective for failing to raise the issue.]

Ground barred by res judicata:

I. Mr. Boyd was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel in both stages of trial. [Insofar as Boyd's particular arguments were not raised on direct appeal, they are waived. Boyd characterizes a Motion for Remanded Evidentiary Hearing On Ineffective Assistance of Counsel for Supplementation of Record on Appeal, filed during the pendency of the direct appeal, as a Motion to Supplement the Record. It was not. This Court considered the Motion as a motion to remand only, and denied it as the assertions it contained did not warrant an evidentiary hearing. Boyd, 839 P.2d at 1373 n. 4. The allegations of ineffective assistance raised in that motion were not considered by the Court. The State argues that any allegations raised in Boyd's Petition for Rehearing are barred by res judicata. We have previously held that issues properly raised in a Petition for Rehearing differ from issues proper for consideration on post-conviction review. Moore v. State, 889 P.2d 1253, 1257 (Okl.Cr.), cert. denied, ___ U.S. ___, 116 S. Ct. 215, 133 L. Ed. 2d 146 (1995). As this Court has not considered these issues, they are not barred by res judicata. Although the district court determined these issues were barred by res judicata and we have determined some issues were waived, we consider the allegations as they affect Boyd's claim of ineffective assistance of appellate counsel. See Proposition 2 infra. Fowler v. State, 896 P.2d 566, 569 n. 7 (Okl.Cr. 1995).]

7 Robedeaux v. State, 908 P.2d 804, 806 (Okl.Cr. 1995); Stiles, 902 P.2d at 1107; Sellers v. State, 889 P.2d 895, 898 (Okl.Cr. 1995).

8 Stiles, 902 P.2d at 1107; Fox, 880 P.2d at 386; Strickland v. Washington, 466 U.S. 668, 677-78, 104 S. Ct. 2052, 2059, 80 L. Ed. 2d 674 (1984).

9 Fowler, 896 P.2d at 569; Hooks v. State, 902 P.2d 1120, 1124 (Okl.Cr. 1995).

10 Hooks, 902 P.2d at 1124.

11 Stiles, 902 P.2d at 1107; Castro, 880 P.2d at 389; Strickland, 466 U.S. at 696-99, 104 S. Ct. at 2068-70.

12 Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66; Sellers, 889 P.2d at 898.

13 Boyd, 839 P.2d at 1369.

14 Robedeaux, 908 P.2d at 808; Berget v. State, 907 P.2d 1078, 1082-85 (Okl.Cr. 1995).

15 Although counsel did not present mitigating evidence, this Court has held that it is not per se ineffective assistance to fail to present mitigating evidence. Stiles, 902 P.2d at 1108; Thomas, 888 P.2d at 526; cf. Wallace v. State, 893 P.2d 504 (Okl.Cr.), cert. denied, ___ U.S. ___, 116 S. Ct. 232, 133 L. Ed. 2d 160 (1995) (capital defendant may refuse to present mitigating evidence).

16 Compare Wilhoit v. State, 816 P.2d 545545454 546 (Okl.Cr. 1991) (counsel did not use available forensic odontologist to refute bite-mark evidence).

17 Boyd, 839 P.2d at 1370 (claim that the continuing threat aggravating circumstance was proven by unadjudicated crimes which were hearsay and unreliable because the State's witness had "sold" his testimony).

18 Boyd cites as support my dissenting opinion in Paxton v. State, 867 P.2d 1309, 1332 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 115 S. Ct. 227, 130 L. Ed. 2d 153 (1994). I have consistently disagreed with the use of unadjudicated offenses to support the continuing threat aggravating circumstance. See, e.g., Cannon v. State, 904 P.2d 89, 106 n. 59 (Okl.Cr. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1272, 134 L. Ed. 2d 219 (1996); LaFevers v. State, 897 P.2d 292, 308 n. 40 (Okl.Cr. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 820, 133 L. Ed. 2d 763 (1996); Hooker v. State, 887 P.2d 1351, 1365 n. 43 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 116 S. Ct. 164, 133 L. Ed. 2d 106 (1995); Hogan v. State, 877 P.2d 1157, 1167 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1154, 130 L. Ed. 2d 1111 (1995); Paxton, 867 P.2d at 1325; see also Rogers v. State, 890 P.2d 959, 976 n. 35 (Okl.Cr.), cert. denied, ___ U.S. ___, 116 S. Ct. 312, 133 L. Ed. 2d 215 (1995) (citing my dissents on this issue). The federal district court for the Eastern District of Oklahoma has recently found admission of unadjudicated acts to support the continuing threat aggravating circumstance violates due process and injects arbitrariness into capital sentencing proceedings. Williamson v. Reynolds, 904 F. Supp. 1529 (E.D.Ok. 1995). I concur in today's decision on the basis of stare decisis.

19 Boyd, 839 P.2d at 1370.