Grant v. State , 75 O.B.A.J. 1981 ( 2004 )

LUMPKIN, J:

Special Concur.

¶ 1 I concur in Judge Lile’s opinion, but write separately to emphasize several distinguishing differences between the facts of this case and those presented in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In addition, I also believe it is important to refresh our memories that it is the client’s case, not the lawyer’s.

¶2 In the direct appeal of this case, we remanded for an evidentiary hearing on the issue of ineffective assistance of trial counsel on this very issue. As our subsequent opinion reflects, trial counsel consulted with the defendant and the defendant was an integral part of the strategic decision making process regarding mitigation evidence. See Grant v. State, 2002 OK CR 36, ¶ 76-78, 58 P.3d 783, 799.

¶ 3 As reflected in our opinion, trial counsel testified there were two main reasons family members were not called to testify as mitigation witnesses:

First, Grant told him that he basically had no contact with his family since he left home at the age of fifteen and was incarcerated since the age of nineteen. Grant indicated that he did not know where his family was located other than somewhere in Oregon. Grant told him that he didn’t want his family involved in the proceedings.

Grant, 2002 OK CR 36, ¶ 76, 58 P.3d at 799.

Secondly, Bowen testified that because the family members had no close contact with Grant in some twenty years, their testimony would be of little help. He felt like if they testified about their relationship, they would be vulnerable on cross-examination because they hadn’t had any contact with him since he had been incarcerated.

Grant, 2002 OK CR 36, ¶ 77, 58 P.3d at 799. Nevertheless, trial counsel still had investigators try to contact family members, but they were unable to do so prior to trial.

¶ 4 Upon reviewing the testimony presented at that evidentiary hearing, we held, “Grant’s wish to exclude his family from the proceedings controlled trial counsel’s actions in this ease”. Grant, 2002 OK CR 36, ¶ 84, 58 P.3d at 800.

¶ 5 A very important factor not addressed in Wiggins (and overlooked by the dissent in this case) is that a competent client is in charge of his or her case, not the lawyer. See Rule 1.2, Oklahoma Rules of Professional Conduct, Title 22, Ch. 18, App. (2003). That factor was a crucial part of our analysis and holding in the direct appeal opinion.

¶ 6 When a lawyer is hired or appointed to represent a client in a criminal proceeding— even in a capital case — that lawyer does not “own” the case. The lawyer has a responsibility to advise, inform, and consult with the client. Meanwhile, the client has the right to be involved in the decision process that will affect his or her life. Indeed, as we made clear in Wallace v. State, 1997 OK CR 18, ¶¶ 6, 27, 935 P.2d 366, 370, 376, a defendant may even waive the right to present any mitigating evidence when fully informed as to that right and the effect of the waiver.

¶ 7 In Nelson v. State, 2001 OK CR 4, 21 P.3d 55, we were presented with a situation where the defendant initially pled not guilty by reason of insanity to a charge, but later decided to amend his plea. Counsel argued during sentencing for the judge to consider the mental problems in his sentencing decision. In addressing a challenge to counsel’s effectiveness we held:

However, Appellant’s counsel was ethically bound to accept his competent client’s decision regarding the plea to be entered. This is clear from Rule 1.2(a) of the Rules of Professional Conduct. Indeed, the committee comments to Rule 1.2 note “[t]he client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law....”

Nelson, 2001 OK CR 4, ¶ 29, 21 P.3d at 60; see also, Alvord v. Wainwright, 725 F.2d 1282, 1289 (11th Cir.1984), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984)(“In light of Alvord’s refusal to assert the insanity defense, although earnestly counseled by his defense attorney to do so, we conclude that Meyers rendered competent assistance ... In addition, given Al-vord’s competency, Meyers was ethically bound to follow his client’s wishes. See, Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983).”)

¶ 8 This analysis and holdings are fully consistent with the U.S. Supreme Court’s seminal decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Faretta the Court held, “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense”. 422 U.S. at 819, 95 S.Ct. 2525.

¶ 9 The record in this case reveals the defendant was personally involved in the decision making process of what witnesses to call during the trial’s punishment phase. That decision is supported by logical, credible reasons. Additionally, regardless of the defendant’s directions, the trial attorney had his investigator continue to seek out family members up until the time of the sentencing phase of trial. This is not the same inactivity found in Wiggins. Rather, this record reveals a competent client directing counsel as he has the constitutional right to do under Faretta.

¶ 10 The Wiggins decision should not be misapplied or misconstrued in a way that dilutes the use of “trial strategy” when dealing with cases of this type at the appellate level. Granted, Wiggins, in analyzing Strickland and the issue of ineffective assistance relating to mitigation efforts, states that “Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy.” Wiggins, 539 U.S. at -, 123 S.Ct. at 2538. However, as previously stated, Wiggins does not factor in the input and direction of a competent client in the decision making process.

¶ 11 In Roberts v. State, 1996 OK CR 7, ¶ 29, 910 P.2d 1071, 1081, we addressed the situation that occurs when a defendant has been cooperative throughout the trial and the attorney has no reason to believe he has not received necessary information from his client:

Concerning mitigating evidence, counsel cannot be ineffective for failing to more fully develop Petitioner’s life history, as Petitioner has not shown he presented such information to his attorney. Courts have historically held a defendant bears some burden of supplying counsel with necessary information within his knowledge. See United States v. King, 936 F.2d 477, 480 (10th Cir.), cert. denied, 502 U.S. 1008, 112 S.Ct. 647, 116 L.Ed.2d 664 (1991)....”

See also, Brown v. State, 1997 OK CR 1, 933 P.2d 316, 321-322.

¶ 12 The punishment phase of a capital case is not merely a jump through the hoops, mark off the check list process. What may be appropriate and helpful in one case can be harmful in another. It appears there is an attitude/perspective developing from those who are far removed from the dynamics of the courtroom that a certain number of experts and family members must be presented in every case in order for counsel to be effective. That is an unrealistic view that disregards the fact it is the defendant/client, not the attorney, who has the ultimate ability to make those choices, upon consultation with counsel. Moreover, this view has created a cottage industry for minimally relevant experts from every persuasion, some with very questionable credentials.

¶ 13 In this particular case, our remanded evidentiary hearing revealed that defendant left home at the age of fifteen and has been incarcerated from the time he was nineteen. During this time — more than twenty years— family members had minimal contact with him. Trial counsel related his concerns about putting family members on the stand to say how much they loved and cared for defendant when those same family members rarely, if ever, visited him in prison. Therefore, it was reasonable and logical for counsel to follow his client’s directions to rely on the defendant’s testimony as to his childhood, together with the psychologist’s testimony.

¶ 14 To further put the facts into perspective, it must be remembered that the defendant was serving a total of one-hundred thirty (130) years for four separate armed robberies and had been in prison for about twenty years when he “savagely and repeatedly stabbed Gay Carter, a food service supervisor at the Connor Correction Center in Hominy, Oklahoma” on November 13, 1998. Grant, 2002 OK CR 36, ¶ 2, 58 P.3d at 789.

¶ 15 While defendant may have had a bad childhood, it had nothing to do with the death of Gay Carter. Periodic visits from family members would have had no impact on this jury’s decision. Twenty years of structured incarceration has not been sufficient to ameliorate the defendant’s violent tendencies and that is what impacts the average juror as they view the savagery of this attack on an unarmed female food service worker. The defendant was competent and participated in the strategic decisions with counsel. Those decisions are supported by the record and distinguish the facts of this case from Wiggins.

¶ 16 I concur the judgment and sentence should be affirmed.