McGregor v. State

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McGregor v. State
1997 OK CR 10
935 P.2d 332
Case Number: PC-96-1006
Decided: 02/25/1997
BILLY KEITH MCGREGOR, Petitioner -vs- STATE OF OKLAHOMA, Respondent
Oklahoma Court of Criminal Appeals

ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF, AND MOTION FOR DISCOVERY

CHAPEL, P.J.:

[935 P.2d 333]

¶1 Billy Keith McGregor was tried by jury before the Honorable Gregg Smith in the District Court of Hughes County. In Case No. CRF-85-38 he was convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7(A). At the conclusion of the first stage of trial, the jury returned a verdict of guilty. During sentencing, the jury found 1) the murder was especially heinous, atrocious, or cruel; and 2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. McGregor was sentenced to death for the murder conviction. McGregor appealed his judgments and sentences to this Court and we affirmed.1 This Court denied McGregor's petition for rehearing and the United States Supreme Court denied McGregor's petition for certiorari.2

¶2 On August 19, 1996, McGregor filed an Application for Post-Conviction Relief directly with this Court.

¶3 In Proposition I McGregor claims that the "clear and convincing" standard of evidence applied in the trial court's evaluation of his competency to stand trial violates his right to due process. McGregor bases this claim on Cooper v. Oklahoma,

¶4 McGregor alleges ineffective assistance of trial counsel in Propositions II, IV and VIII. Ineffective assistance of trial counsel claims raised in capital post-conviction appeals are properly before this Court only if they require fact-finding outside the direct appeal record.

¶5 In Proposition II McGregor claims trial counsel was ineffective because he failed to apply under Ake v. Oklahoma

¶6 McGregor alleges that these claims are properly before this Court because they depend on facts outside the direct appeal record. He supports Proposition II with citation to the trial record and affidavits. In support of Proposition IV he provides a Gannett News Service Report (comprised of articles written in 1982) and references a 1978 lawsuit which alleged that the Department of Human Services engaged in inhumane and unconstitutional treatment of children. In support of Proposition VIII he attaches affidavits from McGregor's friends and family which describe the truck's location and unsecured state prior to the search.

¶7 Proposition II does not depend on facts outside the record on appeal. The facts in support of Propositions IV and VIII are certainly not in the direct appeal record. However, the statutory phrase "fact-finding outside the direct appeal record" was never meant to negate the principle of waiver. Counsel was aware that McGregor had been a ward of the court and in juvenile custody during his youth. The persons in possession of the chain-of-custody evidence were known to trial counsel. McGregor shows no reason why counsel could not have raised these claims either at trial or on appeal. The category of items requiring fact-finding outside the direct appeal record does not include those items that trial counsel had the ability to discover.

¶8 McGregor alleges ineffective assistance of appellate counsel in Propositions II, III, V, VI, and VIII. Ineffective assistance of appellate counsel claims are properly before us only if the Court finds that if the allegations were true, the performance of appellate counsel would constitute the denial of reasonably competent assistance of appellate counsel under prevailing professional norms.

¶9 In Proposition V, McGregor claims appellate counsel was ineffective for failing to raise the following issues: (1) that the competency jury was instructed on the incorrect [935 P.2d 336] burden of proof (also raised in Proposition I); (2) that trial counsel failed to obtain expert psychiatric assistance in McGregor's competency trial (also raised in Proposition II); (3) that the trial court erred in failing to conduct a competency hearing sua sponte based on McGregor's inability to assist counsel at trial (also raised in Proposition III); (4) that the trial court erred in admitting evidence obtained from McGregor's truck without a proper chain of custody (also raised as Proposition VIII); and (5) that the search of McGregor's truck was conducted without proper consent (also raised as Proposition VI).

¶10 A review of the record reveals that appellate counsel failed to raise the Proposition V issues on direct appeal.

¶11 McGregor also filed a motion for discovery on August 19, 1996.

¶12 McGregor specifically requests (1) all notes and records of polygraph tests McGregor may have taken regarding this crime or other area disappearances; (2) complete medical and psychiatric records from the Department of Corrections; (3) all prescription records from a Wynnewood pharmacist which refer to McGregor; and (4) the complete Oklahoma State Bureau of Investigation file on McGregor in this and any other cases. McGregor offers no information suggesting that he ever took a polygraph, but claims that even an attempt to take that test could provide exculpatory evidence. This is speculation and does not meet the threshold requirements for a successful discovery [935 P.2d 337] claim. McGregor contends his prison psychiatric and medical records are necessary to present his claim under Cooper and claim of ineffective assistance of trial counsel for failure to obtain expert assistance at his competency hearing. We have already determined that neither the Cooper issue nor the claim of ineffective assistance of trial counsel are properly raised. McGregor also claims access to these records is necessary to enable post-conviction counsel to properly represent him on the issue of his mental competency for execution. This question was not raised in the application for post-conviction, and we cannot consider this request under Rule 9.7(D)(5). McGregor claims the pharmacy prescription records will aid in presenting his claim that trial counsel was ineffective for failing to obtain expert assistance at his competency hearing, a claim we have already rejected. McGregor also contends these records are necessary for counsel to determine whether he was medicated at the time of the crime, what the medications were, and whether he was taking his medication. These questions, which concern whether McGregor was insane at the time of the crime, are not relevant to any issue raised in the application and we cannot consider this request under Rule 9.7 (D)(5). McGregor notes that the OSBI files originally included an audiotape made during surveillance which has been lost, and cites several statements and telephone records he obtained or heard of during an evidentiary hearing held in the course of the direct appeal. McGregor also notes his belief that the OSBI has several of his statements taken in connection with other cases. McGregor has not shown that this information, including phone records and statements developed in the evidentiary hearing, creates a substantial question of compliance with earlier discovery orders. McGregor has not shown that any of this material is exculpatory or would have resulted in a different outcome at trial.

¶13 We have carefully reviewed McGregor's applications for post-conviction relief and discovery and find that he is not entitled to relief. The Application for Post-Conviction Relief and Motion for Discovery are DENIED.

ATTORNEYS ON APPEAL

SANDRA MULHAIR CINNAMON
BRIAN LESTER DUPLER
ASSISTANT APPELLATE INDIGENT DEFENDERS
CAPITAL POST-CONVICTION DIVISION
OKLAHOMA INDIGENT DEFENSE SYSTEM
1660 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019
ATTORNEYS FOR PETITIONER

OPINION BY: CHAPEL, P.J.

FOOTNOTES

VII. The trial court denied McGregor's rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and Article II, sections 7 and 9 of the Oklahoma Constitution by not properly responding to the jury's query concerning what would happen to McGregor if he was sentenced to life without parole; [McGregor suggests we should reconsider this decision in light of Simmons v. South Carolina, 512 U.S. ___, 117 S. Ct. 2187, 129 L. Ed. 2d 133 (1994) (error not to inform jury that defendant was ineligible for parole). Simmons does not decide a new rule of law which would apply in this case. Trice v. State, 912 P.2d 349, 352 (Okl.Cr.1996). The request for reconsideration is not properly before us.]

Propositions of error barred by waiver:

III. The trial court's failure to conduct a competency hearing sua sponte based on McGregor's inability to assist counsel at trial denied McGregor due process of law; [Reviewing this claim in the context of ineffective assistance of appellate counsel and not the underlying substantive claim, we find no error as set forth in the opinion.]

VI. The search of McGregor's pickup truck was conducted in violation of the Fourth and Fourteenth Amendments as it was involuntary and outside of the scope of McGregor's consent; and [Reviewing this claim in the context of ineffective assistance of appellate counsel and not the underlying substantive claim, we find no error as set forth in the opinion].

VIII. The trial court admission of evidence obtained from McGregor's motor vehicle for which no proper chain of custody has been established was reversible error. [McGregor brings this as a claim of ineffective assistance of trial and appellate counsel. The claim of ineffective assistance of trial counsel requires no fact-finding outside the direct appeal record and is not properly before us. Reviewing the proposition in the context of ineffective assistance of appellate counsel and not the underlying substantive claim, we find no error as set forth in the opinion.]

 

LUMPKIN, JUDGE: CONCUR IN RESULT:

¶1 I concur, based on stare decisis, in the discussion dealing with ineffective counsel. See Walker v. State, 933 P.2d 327, 341-44 (Okl.Cr.1997) (Lumpkin, J., concur in results). I also write separately to further discuss briefly the so-called first "prong" of the test this Court uses for ineffective counsel in post-conviction proceedings.

¶2 This case, together with the other cases applying the Walker methodology, graphically illustrates the point I made in Walker. Simply requiring a petitioner show "appellate counsel actually committed the act which gave rise to the ineffective assistance allegation," Walker at 333, is in reality -- at least on the surface -- no requirement at all, and does nothing to differentiate one case from another. As I do not believe this Court actually committed time and resources toward the formulation of a test the first part of which is essentially worthless, I must conclude there is more to this first "prong" than meets the eye. There must be more of a requirement to satisfy the prong than merely allowing post-conviction counsel to raise it in the brief.

¶3 I need not get into an extensive discussion at this point. Suffice it to say here that, as more cases are presented to this Court, it may become necessary to elucidate with more precision exactly what requirements must be met to satisfy the first prong of this new test.

LANE, J.:DISSENTS

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